Trade's Security Exceptionalism

Abstract

At the core of U.S. trade law is an understudied structural dichotomy. On the one hand, well-established statutory authorities enable the president to eliminate trade barriers through negotiations with U.S. trading partners. On the other hand, different, lesser-known authorities allow the president to erect trade barriers on an exceptional basis where necessary for U.S. economic security. Rather than thinking of free trade as a source of or tool for economic security as political theorists long have, our law codifies them in contrast to one another – allowing departures from the free trade norm when security so demands. Further, the two categories of authorities suffer from a mismatch in what I call “trade delegation disciplines”: while Congress kept tight controls on the president’s free trade negotiations, it abandoned controls on the exceptional security-driven authorities, empowering the executive to handle U.S. trade interests in an unbridled way that our nation’s founders feared.

This Article is the first to identify how trade law has exceptionalized security. It develops an original typology of the categories of congressional delegations that constitute our exceptional trade apparatus. This structural account delivers both positive and normative payoffs. Apart from explaining the institutional terrain, identifying the dichotomy challenges the traditional assumption that all executive departures from the prevailing free trade norm are illegal and illegitimate. The historical record demonstrates that, surprisingly, security exceptionalism in U.S. trade law is the product of misunderstood statutes that have been unmoored from their original purposes. Finally, although the exceptions may be difficult to undo or to correct, this analysis shows that trade law has space for a wide array of innovative and non-traditional disciplines that could serve to limit the damage that exceptionalizing security has caused. A review of those options likewise prescribes certain lessons for the limitations of the nondelegation doctrine and separation of powers.

Keywords: trade, security, separation of powers, delegation

JEL Classification: F13