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Forgotten Statutes: Trade Law's Domestic (Re)turn

  • Kathleen Claussen (a1)

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Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral action, the Trump Administration has returned to relying heavily on domestic statutes to impose tariffs on goods imported from U.S. trading partners and on those from one country in particular: China.

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Copyright

COPYRIGHT: © 2019 by The American Society of International Law and Kathleen Claussen
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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2 Trade Act of 1974, Pub. L. No. 93-618, § 301, 88 Stat. 1978, 2041–43 (codified as amended at 19 U.S.C. § 2411).

3 Id.

4 See K. Blake Thatcher, Section 301 of the Trade Act of 1974: Its Utility Against Alleged Unfair Trade Practices by the Japanese Government, 81 Nw. U. L. Rev. 492 (1987) (outlining the history of like delegations).

6 Jared R. Silverman, Multilateral Resolution over Unilateral Retaliation: Adjudicating the Use of Section 301 Before the WTO, 17 U. Pa. J. Int'l Econ. L. 233 (1996) (detailing the amendments from 1974 to 1996).

8 Any interested individual may file a petition under Section 301. 19 U.S.C. § 2412(a).

9 See A. Lynne Puckett & William L. Reynolds, Rules, Sanctions and Enforcement Under Section 301: At Odds with the WTO?, 90 AJIL 675, 675 (1996); Judith H. Bello & Alan F. Holmer, Significant Recent Developments in Section 301 Unfair Trade Cases, 21 Int'l Law. 211, 216–18 (1987).

12 For one view, see Thomas J. Trendl, Self-Help in International Trade Disputes, 84 Am. Soc'y Int'l L. Proc. 32, 33-34 (1990) (citing Robert Hudec as arguing that actions under Section 301 while illegal, nevertheless may be justified).

13 Judith H. Bello & Alan F. Holmer, The Post-Uruguay Round Future of Section 301, 25 Law & Pol'y Int'l Bus. 1297, 1301 (1994).

14 Sykes, supra note 7, at 274.

15 Id. at 264.

16 See An Chen, The Three Big Rounds of U.S. Unilateralism Versus WTO Multilateralism During the Last Decade, 17 Temp. Int'l & Comp. L.J. 409 (2003) (summarizing arguments made in the case).

18 Isabelle Hoagland, Sources: USTR Mulling Section 301 Investigation into Chinese Labor Practices, Inside U.S. Trade (Nov. 9, 2018).

19 See Kathleen Claussen, The Other Trade War, 103 Minn. L. Rev. Headnotes 1 (2018); James Bacchus, How to Take on China Without Starting a Trade War, Wall St. J.: Opinion (Aug. 16, 2017).

20 The European Union has a similar mechanism against unfair foreign trade practices or obstacles to trade. Council Regulation 3286/94, 1994 O.J. (L 349) 71 (EC).

21 Uruguay Round Trade Agreement Statement of Administrative Action, H.R. Doc. No. 103-316, at 1034-35 (2d Sess. 1994). See also Pub. L. No. 103-465, § 101(a)(2) & § 102(d), 108 Stat. 4809, 4814 & 4819 (1994) (describing this statement of administrative action as “an authoritative expression” of interpretation).

22 U.S. Tools to Address Chinese Market Distortions: Hearing Before the U.S.-China Economic and Review Security Commission, 115th Cong. (2018) (testimony of Jennifer Hillman). See also Kathleen Claussen, Beyond Norms: Using International Economic Law Tools to Deter Malicious State-Sponsored Cyber Activities, 32 Temp. Int'l & Comp. L.J. 113 (2018).

23 See similiarily, Thomas O. Bayard, Comment on Alan Sykes’ “Mandatory Retaliation for Breach of Trade Agreements: Some Thoughts on the Strategic Design of Section 301”, 8 B.U. Int'l L.J. 325 (1990).

24 See Kathleen Claussen & Mark Wu, The Evidence Challenges Confronting International Trade Law (manuscript on file with the author).

25 See Claussen, supra note 21.

26 Kathleen Claussen, Trade War Battles: Congress Reconsiders Its Role, Lawfare (Aug. 5, 2018).

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