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Trump Administration Continues Trade Negotiations with Major Trade Partners

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1 Office of the U.S. Trade Rep., Findings of the Investigation into China's Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation Under Section 301 of the Trade Act of 1974 (2018). For discussion of this investigation, its aftermath, and the legal landscape underlying subsequent tariffs, see Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 505 (2018); Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 751 (2018).

2 See Office of the U.S. Trade Rep. Press Release, USTR Announces Next Steps on Proposed 10 Percent Tariff on Imports from China (Aug. 13, 2019), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/august/ustr-announces-next-steps-proposed [https://perma.cc/B99V-27EY]; see also Jean Galbraith, Contemporary Practice of the United States, 113 AJIL 822, 830 (2019).

3 See Alan Rappeport & Keith Bradsher, Trump Says He Will Raise Existing Tariffs on Chinese Goods to 30%, N.Y. Times (Aug. 23, 2019), at https://www.nytimes.com/2019/08/23/business/china-tariffs-trump.html?module=inline.

4 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 23, 2019, 7:59 AM), at https://twitter.com/realDonaldTrump/status/1164914960046133249 [https://perma.cc/H643-NNVR]. Trump declared that he would have the power to prohibit U.S. companies from continuing business in China pursuant to the International Emergency Economic Powers Act (IEEPA). Donald J. Trump (@realDonaldTrump), Twitter (Aug. 23, 2019, 8:58 PM), at https://twitter.com/realDonaldTrump/status/1165111122510237696 [https://perma.cc/2L87-TCTQ]; but see Joshua Geltzer, Blame Trump, Not the U.S. Code, for His Abuse of Emergency Authority, Just Security (Aug. 26, 2019), at https://www.justsecurity.org/65978/blame-trump-not-the-u-s-code-for-his-abuse-of-emergency-authority (arguing that if “Trump in fact invokes the IEEPA to restrict American commercial activity in China, he'll be . . . violating federal law” and expressing the hope that courts would “reject Trump's overreach”).

5 Office of the U.S. Trade Rep. Press Release, USTR Statement on Section 301 Tariff Action Regarding China (Aug. 23, 2019), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/august/ustr-statement-section-301-tariff [https://perma.cc/PSE2-7URS].

6 See Alexandra Stevenson, China Lifts Tariffs on Some U.S. Goods in Modest Olive Branch to Trump, N.Y. Times (Sept. 11, 2019), at https://www.nytimes.com/2019/09/11/business/china-drops-tariffs.html?module=inline (reporting that China “publish[ed] a short list of products to be spared from retaliatory tariffs on American-made goods”); Donald J. Trump (@realDonaldTrump), Twitter (Sept. 11, 2019, 4:17 PM), at https://twitter.com/realDonaldTrump/status/1171925717988388865 [https://perma.cc/34KF-3CTP].

7 Donald J. Trump, Remarks in a Meeting with Vice Premier Liu He of China and an Exchange with Reporters, 2019 Daily Comp. Pres. Doc. No. 713, at 1 (Oct. 11) [hereinafter Trump and Liu Joint Statement]. With respect to enforcement, Trump stated that there would be an enforcement provision and U.S. Trade Representative Robert E. Lighthizer noted that there would be “a very elaborate consultation process.” Id. at 5.

8 See id. at 2, 11 (also quoting Secretary of the Treasury Mnuchin as saying with respect to the U.S. agricultural exports that these would “scale up to an annual figure” of $40 to $50 billion within two years). This would be a large increase compared to current exports. See Office of the U.S. Trade Rep., The People's Republic of China, at https://ustr.gov/countries-regions/china-mongolia-taiwan/peoples-republic-china [https://perma.cc/T956-2TUZ] (“U.S. total exports of agricultural products to China totaled $9.3 billion in 2018.”).

9 Trump and Liu Joint Statement, supra note 7, at 7. The September 1 tariffs had already gone into effect, and the Trump administration made no statement about withdrawing those tariffs. See generally id. (lacking any mention of the September 1 tariffs); 84 Fed. Reg. 57145 (Oct. 24, 2019) (noting the tariffs originally noticed on August 20, 2019 were “effective September 1, 2019”).

10 Alan Rappeport, Ana Swanson, Keith Bradsher & Chris Buckley, U.S. and China Reach Initial Trade Deal, N.Y. Times (Dec. 13, 2019), at https://www.nytimes.com/2019/12/13/business/economy/china-trade-deal.html.

11 Id.

12 Id. (observing that the text “still needs to be translated, scrubbed and signed”).

13 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 11, 2019, 7:15 AM), at https://twitter.com/realDonaldTrump/status/1182661081849835520 [https://perma.cc/6T4R-ZT55] (“One of the great things about the China Deal is the fact that, for various reasons, we do not have to go through the very long and politically complex Congressional Approval Process”).

14 See Kevin Breuninger, Trump Says the US Has Come to a Substantial Phase One Deal with China, CNBC (Oct. 11, 2019), at https://www.cnbc.com/2019/10/11/trump-says-us-has-come-to-a-substantial-phase-one-deal-with-china.html (quoting a commentator offering reasoning along these lines).

15 Trump and Liu Joint Statement, supra note 7, at 2.

16 See Motoko Rich, Japan's Embrace of Bilateral Trade Talks with U.S. Spares It from Tariffs, N.Y. Times (Sept. 27, 2018), at https://www.nytimes.com/2018/09/27/world/asia/japan-trump-trade-talks-auto-tariffs.html.

17 See White House Press Release, President Donald J. Trump Is Strengthening Ties, Improving Trade, and Deepening Our Global Partnership with Japan (Apr. 26, 2019), at https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-strengthening-ties-improving-trade-deepening-global-partnership-japan [https://perma.cc/BH8Z-QZFH]; Letters from Robert E. Lighthizer, U.S. Trade Representative, to Charles E. Schumer, U.S. Senate Minority Leader, et al. (Oct. 16, 2018), available at https://ustr.gov/sites/default/files/20181017004828790-1.pdf [https://perma.cc/PZC3-8HV6].

18 Donald J. Trump, Remarks Prior to a Meeting with Prime Minister Shinzo Abe of Japan and an Exchange with Reporters in Biarritz, France, 2019 Daily Comp. Pres. Doc. No. 570, at 2 (Aug. 25).

19 See Donald J. Trump, Message to the Congress on Notification of Initiation of the United States-Japan Trade Agreement, 2019 Daily Comp. Pres. Doc. No. 623, at 1 (Sept. 16) (noting the administration was “pursuing negotiations with Japan in stages” in order to “achieve a comprehensive trade agreement”).

20 Donald J. Trump, Remarks Prior to a Meeting with Prime Minister Shinzo Abe of Japan in New York City, 2019 Daily Comp. Pres. Doc. No. 660, at 1 (Sept. 25) [hereinafter Trump and Abe Joint Statement]; Office of the U.S. Trade Rep., U.S.-Japan Trade Agreement Text, at https://ustr.gov/countries-regions/japan-korea-apec/japan/us-japan-trade-agreement-negotiations/us-japan-trade-agreement-text [https://perma.cc/2QQH-DE9K]; Office of the U.S. Trade Rep., U.S.-Japan Trade Agreement Text, at https://ustr.gov/countries-regions/japan-korea-apec/japan/us-japan-trade-agreement-negotiations/us-japan-digital-trade-agreement-text [https://perma.cc/YYM6-LJHB].

21 Office of the U.S. Trade Rep. Press Release, Fact Sheet on U.S.-Japan Trade Agreement (Oct. 7, 2019), at https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2019/september/fact-sheet-us-japan-trade-agreement [https://perma.cc/A79Q-2YYU].

22 Id.

23 Id.

24 See id.; U.S.-Japan Trade Agreement a “Cheap Imitation” of TPP: Sen. Carper, Bloomberg (Sept. 26, 2019), at https://www.bloomberg.com/news/videos/2019-09-26/u-s-japan-trade-agreement-a-cheap-imitation-of-tpp-sen-carper-video (quoting a Democratic senator to the effect that the negotiations had resulted in a “cheap imitation” of the TPP); David Lawder, U.S.-Japan Trade Deal Versus TPP: Where It Falls Short, Where It Exceeds, Reuters (Oct. 7, 2019), at https://www.reuters.com/article/us-usa-trade-japan/u-s-japan-trade-deal-versus-tpp-where-it-falls-short-where-it-exceeds-idUSKBN1WM0A3 (noting various similarities while observing that the TPP provided for broader tariff reduction but less comprehensive commitments with respect to digital trade).

25 Bipartisan Congressional Trade Priorities and Accountability Act of 2015, Pub. L. No. 114-26, § 103(a), 129 Stat. 320, 333 (setting forth an authorization that will sunset and thus not apply to agreements reached after July 1, 2021).

26 Message to the Congress on Notification of Initiation of the United States-Japan Trade Agreement, supra note 19.

27 Id.

28 See Jean Galbraith, International Law and the Domestic Separation of Powers, 99 Va. L. Rev. 987, 1037–42 (2013) (describing how, during the first term of the Obama administration, executive branch officials concluded that congressional approval was not needed for the United States to join the Anti-Counterfeiting Trade Agreement, although this position was disputed by some scholars and members of Congress).

29 Cong. Research Serv., IF11120, U.S.-Japan Trade Agreement Negotiations 1 (2019). Japan's Diet approved both agreements towards the end of 2019. See Office of the U.S. Trade Rep. Press Release, Ambassador Lighthizer Lauds Japan's Approval of the U.S.-Japan Digital Trade Agreement (Dec. 4, 2019), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/december/ambassador-lighthizer-lauds-japan [https://perma.cc/8479-R8DY].

30 Trump and Abe Joint Statement, supra note 20, at 1.

31 See Ana Swanson, Trump Announces a Trade Pact with Japan, N.Y. Times (Sept. 25, 2019), at https://www.nytimes.com/2019/09/25/business/trump-announces-limited-trade-pact-with-japan.html (“[A Japanese chief negotiator, Atsuyuki] Oike added . . . that the two sides would discuss a reduction in the United States’ 2.5 percent tariff on imported passenger cars in their next round of talks.”); Cong. Research Serv., supra note 29, at 2 (listing “Motor Vehicles,” “Services,” and “Currency” as “Potential Provisions in Future Talks”).

32 Cong. Research Serv.,supra note 29, at 2 (noting that while “adherence to Article XXIV has rarely been challenged at the WTO, whether or not the U.S.-Japan deal violates the letter or spirit of this WTO requirement likely depends on the timeline and scope of the next stage talks”).

33 See Protocol Replacing the North American Free Trade Agreement with the Agreement Between the United States of America, the United Mexican States, and Canada, available at https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/USMCA_Protocol.pdf. For a detailed discussion of the notable differences between NAFTA and USMCA, see Jean Galbraith, Contemporary Practice of the United States, 113 AJIL 150 (2019).

34 On June 19, 2019, Mexico overwhelmingly approved the USMCA. See LXIV Legislatura: Periodo Extraordinario Primer Año de Ejercicio, Senado de la República, at http://www.senado.gob.mx/64/votacion/3417 [https://perma.cc/V8J9-K8PY] (showing a Senate vote of 114 to 4 in favor of the trade agreement). Although the Canadian Parliament began its process in May, it was dissolved prior to completing this process and, as a result, its implementation act must be reintroduced in the next parliamentary session.

35 Message from U.S. Trade Representative Robert E. Lighthizer to Speaker of the House Nancy Pelosi, at 1 (May 30, 2019). This submission must be made to Congress at least thirty days before submitting an implementing bill. 19 U.S.C. § 4205(a)(1)(D)–(E).

36 White House Sends USMCA Implementing Bill to Congress, Inside U.S. Trade (Dec. 13, 2019), at https://insidetrade.com/daily-news/white-house-sends-usmca-implementing-bill-congress.

37 See Speaker of the House Press Release, Transcript of Speaker Pelosi Press Conference Announcing New USMCA Agreement (Dec. 10, 2019), at https://www.speaker.gov/newsroom/121019-2.

38 Natalie Andrews & William Mauldin, Revised Trade Pact Set for Likely Approval by Congress in 2020, Wall St. J. (Dec. 10, 2019), at https://www.wsj.com/articles/house-democrats-reach-agreement-with-trump-administration-on-usmca-trade-deal-11575989670.

39 Emily Cochrane & Ana Swanson, Revised North American Trade Pact Passes House, N.Y. Times (Dec. 19, 2019), at https://www.nytimes.com/2019/12/19/us/politics/usmca-deal.html.

40 Office of the U.S. Trade Rep. Press Release, United States and European Union Sign Breakthrough Agreement on U.S. Beef Access to EU (Aug. 28, 2019), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/august/united-states-and-european-union [https://perma.cc/V4GA-QULB]; The European Union and the United States Sign an Agreement on Imports of Hormone-Free Beef, European Commission, at https://ec.europa.eu/commission/presscorner/detail/en/IP_19_5010 [https://perma.cc/WTT4-E79Y] (also noting the need for future approval from the European Parliament).

41 European Commission Press Release, Statement by Commissioner for Trade Cecilia Malmström on U.S. Countermeasures in Airbus Dispute,at https://trade.ec.europa.eu/doclib/press/index.cfm?id=2075 [https://perma.cc/U7XN-HWWB]; James McAuley, Trump's Proposed Cheese and Wine Tariffs Rile Europeans, Wash. Post (Oct. 3, 2019), at https://www.washingtonpost.com/world/europe-decries-proposed-us-tariffs-on-french-wine-italian-cheese-and-other-products/2019/10/03/2dab6dd9-89fb-403c-8f1d-77edd5cd29db_story.html; see also Recourse to Article 22.5 of the DSU by the European Union: Decision by the Arbitrator, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WTO Doc. WT/DS316/ARB (finding the European Union had broken certain global trade rules by providing subsidies to Airbus, damaging the United States annually by approximately $7.5 billion).

42 See European Commission Press Release, Statement on the Publication of WTO's Award in the Airbus Dispute, at https://trade.ec.europa.eu/doclib/press/index.cfm?id=2068 [https://perma.cc/RW7T-GUX5]; European Commission Press Release, EU Scores Final Victory in the WTO Boeing Dispute, at https://trade.ec.europa.eu/doclib/press/index.cfm?id=1999&title=EU-scores-final-victory-in-the-WTO-Boeing-dispute [https://perma.cc/4GP6-JBB7].

43 See Statement on the Publication of the WTO's Award in the Airbus Dispute, supra note 42 (stating that “[o]ur readiness to find a fair settlement remains unchanged”); David J. Lynch, U.S. Can Impose Tariffs on $7.5 Billion in Goods Because E.U. Gave Illegal Subsidies to Airbus, WTO Rules, Wash. Post (Oct. 2, 2019), at https://www.washingtonpost.com/business/economy/the-united-states-can-impose-tariffs-on-75-billion-in-goods-because-european-union-gave-illegal-subsidies-to-airbus-wto-rules/2019/10/02/021edc06-e51d-11e9-b403-f738899982d2_story.html (quoting a senior USTR official as saying the EU proposals were “not sufficient”).

Trump Administration Continues Trade Negotiations with Major Trade Partners

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