11 Pages Posted: 5 May 2021 Last revised: 10 May 2021
Date Written: April 30, 2021
For many years, the Executive has concluded agreements with trading partners concerning foreign commerce pursuant to delegated authority from Congress. The deals govern the contours of a wide range of U.S. inbound and outbound trade: from food safety rules for imported products to procedures and specifications of exported goods, just to name two. The problem is that often no one – apart from the Executive branch negotiators – knows what these deals contain. A lack of transparency rules has inhibited the publication of and reporting to Congress of these unseen deals. Dozens if not hundreds of foreign commercial deals are unseen in two ways: (1) the executive branch rarely makes their texts readily available; and, (2) the texts of many such deals appear largely to have been lost by the executive branch itself. This Essay lays out how the Biden Administration and Congress could ameliorate such problems in the trade transparency and recordkeeping systems. It identifies the flaws in our separation of trade law powers that have led to the hiddenness of such deals, relying in part on interviews with U.S. officials that help to shed light on the deals’ obscurity. Looking forward with the expectation that the Biden Administration is likely to rely on these deals despite these acute problems, the Essay makes some modest suggestions for how to change the system without hampering the Executive’s use of this increasingly important tool.
Keywords: transparency, trade agreements, accountability, publication, reporting, separation of powers
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