The Illusion of the Free Trade Constitution

43 Pages Posted: 1 Jul 2015 Last revised: 31 Jul 2015

Date Written: June 29, 2015

Abstract

In the United States, commentators often contend that our constitutional structure of government can be reformed to promote the general welfare at the expense of special interest groups. Supposedly, one such constitutional innovation — touted widely in the literature — is the long standing practice in which Congress delegates significant international trade authority to the President. In the now familiar tale of institutional beneficence, starting in 1934 Congress agreed to sacrifice some portion of its constitutional authority for the greater good. By doing so, Congress was able to disempower narrow interest groups and enable the President to pursue trade policies that benefit the general welfare. There is one problem with this account: it is not quite true. Neither reciprocity nor the delegation of trade authority to the President were efforts to transcend interest group pressure; on the contrary, they were very much the products of interest group politics. Moreover, they were not particularly novel. Both delegation and reciprocity had been deployed by politicians to secure protectionist policy goals in the latter part of the nineteenth and early twentieth century. In the end, there are likely no set of constitutional structures that will continually guarantee a path to free trade; instead, the relationship between free trade and constitutional institutions is largely contingent and dependent on interest group politics.

Keywords: international trade, international law, foreign relations, constitutional law

JEL Classification: K10, K30

Suggested Citation

Nzelibe, Jide, The Illusion of the Free Trade Constitution (June 29, 2015). New York University Journal of Legislation and Public Policy, Forthcoming, Northwestern Law & Econ Research Paper No. 15-10, Northwestern Public Law Research Paper No. 15-38, Available at SSRN: https://ssrn.com/abstract=2625229 or http://dx.doi.org/10.2139/ssrn.2625229

Jide Nzelibe (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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