73 Pages Posted: 11 Jun 2020 Last revised: 6 Jul 2021
Date Written: March 15, 2020
At the core of public debates about trade policymaking in the United States and the so-called “trade war” is a controversy over who should be responsible for making U.S. trade law: Congress or the president. What these important but superficial conversations miss is that underlying much of our trade policy in recent decades is a widespread executive branch lawmaking apparatus with monitoring, rulemaking, adjudicative, and enforcement features that operates in considerable shadow. Executive branch agencies are now the primary actors in trade lawmaking. This Article excavates that critical underbelly: what I call our “trade administrative state.” It maps the trade administrative state’s statutory and institutional ascent, which, I maintain, was the product of considerable experimentation in governance schemes developed in response to diverging market trends and normative priorities, the absence of judicial mechanisms to monitor its borders, and a deficiency of administrative law disciplines to respond to its fortification.
This unearthing reveals that the trade administrative state does not operate like the rest of the regulatory state either in form or in process, despite that its actors engage in several conventional regulatory functions. Rather, trade lawmaking is predominantly managed by a single agency, the Office of the U.S. Trade Representative, and, procedurally, it lacks the hallmarks traditionally associated with administrative law. The Article then evaluates this model in light of administrative law’s aspirations. It demonstrates how our present model of trade administration and its self-policing control mechanisms clash with commonly held scholarly and doctrinal understandings of executive governance.
This assessment of modern trade governance also prescribes certain lessons for how administrative law operates when it comes to the doctrinal and practical particularities of certain specialized areas of administration. Surprisingly, despite that trade administration challenges established positivist and process-oriented values, it does so in such a way that may enhance compliance with international law. At a moment when critics raise concern about the president’s disfavor of international trade law and institutions, this study reveals that certain norms may be entrenched in our trade administrative state to counteract those concerns.
Taken together, the Article makes three contributions: first, it identifies and illustrates the experimental history of trade administration. Second, I unpack the distinct features of trade lawmaking as managed by executive branch agencies and draw conclusions about its functions for the way we conceive of trade actors and trade action in our constitutional framework. Finally, the Article analyzes the implications of this revealed structure for administrative law both in process and in content and shows how trade lawmaking serves as an unexpected administrative constraint.
Keywords: trade law, administrative law, executive authority, institutional design
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