TRUMP’S THREATS AND TRADE POLICY — From His Real Estate Days in New York?

From a forthcoming article of mine …………….

Donald Trump’s methods of operating and conducting national security or foreign policy are exactly the same as they would be if he was engaged in real estate transactions and deals. To Donald Trump, trade policy, foreign policy, and national security policy are transactions and zero-sum games. He makes decisions with only a few people around him, including his family members, using threats and litigation to get his way.

President Trump’s ruthless approach has been employed in a  range of multilateral trade relations and bilateral agreements (such as the Trans-Pacific Partnership and  the United States-Mexico-Canada Agreement), and bilateral agreements with Korea and Japan. It has also gone beyond bilateral trade disputes by attacking the legitimacy of the WTO’s judicial system and, indeed, the WTO itself. Beyond trade, this caustic approach has been applied to a range of issues in American foreign policy. For example, the withdrawal by the United States from a broad list of international agreements and institutions, including the Iran nuclear deal, UNESCO, and the Paris Climate Accord.

The Trump administration has been employing tariffs and economic sanctions more vigorously than any other administration as the principal tools of its foreign policy. You might even call Trump’s stance in this regard “foreign policy by tariff threats.”

Trump’s disregard for international laws, institutions, alliances, and agreements is extremely worrisome. He possesses a truly generalized hatred for all rules that is mirrored in many ways, his management of the Trump Organization and his career as a real estate professional.

President Trump’s story has yet to play out on either the national or the international stage. His impeachment is already history. The 2020 presidential election is looming.

 

 

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Iranian Assassination & Global Trade … Not Good for the Global Economy


The assassination of Major General Suleimani of Iran was a terrible blunder on many levels. 

One level that has not been talked about much is its potential impact on global trade.

To me there will be a significant impact, sooner than later. President Trump has already imposed new sanctions on Iran and threatens Iraq (for trying to force out US troops after 16 years). His disregard of U.S. and international law is stunning. His entire personal history of litigation has proven to be his template for governing as president and conducting international relations.

President Trump’s impulse is to destabilize international law and international institutions.

The Persian Gulf states are beyond nervous. So are the Europeans and the Japanese. Transit of oil through the Gulf is an obvious target. The price of Saudi Aramco stock (after its massive IPO) has already taken a hit. Price of gold and government bonds have risen. The price of oil has become even more erratic.

Things are not going to get better for anyone, anytime soon. U.S. threats to target Iranian cultural sites are unnerving and illegal, constituting war crimes if carried out. This newer reality is really, really unfortunate.  The risk of this situation unraveling is very great.

This threat to the global economy is a  foreseeable spinoff of an impulsive military action ordered by the United States president. The president’s decision is a stain on American diplomacy.  Worse than the sellout of the Kurds. I wonder where were the U.S. military and intelligence communities in this process.

You simply cannot rationalize the president’s action and tweets. There is absolutely no strategy here, whatsoever.

Doesn’t anyone in the administration read diplomatic or world history? Or even some basic American  foreign policy? One immediate remedy is for the congress to reclaim its constitutional war powers. Most importantly, foreign policy and national security must now become central to the 2020 election.

Very distressful.

 

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Donald Trump — From Queens to the Global Stage — Always Following his Inner Litigating Self.

 


 

From Jamaica Estates, Queens, to the White House — Donald Trump has consistently perverted the litigation &  judicial system. Domestically and internationally. This will not end well for him nor his enablers. It’s simply unamerican.

From his days as a real estate operator in Queens, New York, owning and managing middle class apartments, to the White House Donald Trump has  more than grossly abused the legal system.

As a private citizen he has been involved in 3,500 to 4,000 cases. Always lying. Losing or dropping most cases. This approach has been extended to Donald Trump’s actions on the international stage. In particular, his disregard for international law rules, institutions, alliances and agreements. He has a truly generalized hatred for rules. (This is mirrored in many ways his management of his Trump Organization, essentially a small management company, that employed his relatives and a few additional individuals.)

Trump’s disregard of international rules can be seen in his attack on a broad range of treaties and institutions. To me, none is more delusional than his attack on the WTO and the dispute resolution system. This system was devised by the U.S. and is the central pillar of the global trading system today — establishing global trade rules and in litigating them. The boy from Queens is now causing havoc in Geneva and other world capitals.

Of course, President Trump’s abuse of U.S. trade legislation in his tariff and trade wars, his disregard of domestic law in a broad range of domestic matters, and in dealing with the Congress is another story. But which is part of his generalized corruption of the legal system and is directly related to his days in Queens as a landlord sued by many including the Department of Justice.

 

“Trump’s Legal Strategy — Review of Plaintiff in Chief — A Portrait of Donald Trump in Lawsuits (2019).

Losing in Courts but Winning, Trump Can Run Out the Clock.New York Times (Nov. 28, 2019).

“Some Have Their Day in Court. The President Seems to Have Eons.New York Times (Nov. 7, 2019).

Malawer, “Trump, Trade and Federal Courts.”  China and WTO Review  (2019).

Malawer, “Trump’s Tariff Wars and National Security — Political and Historical Perspective.”  China and WTO Review (2018).

Malawer, “U.S.-China Litigation in the WTO (2001-2014).International Law Practicum (2014).

 

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National Security §232 and Court of International Trade — More Recent Concerns.

To me, the recent skirmish in the Court of International Trade over a newer case, concerning Turkish steel tariffs, indicates that the court is clearly moving to taking a more aggressive view of the legality of the President’s authority under §232. Perhaps, not declaring that provision unconstitutional, but holding the President’s action to a higher standard than previously.

Last week the United States Court of International Trade (CIT) denied the US government’s motion to dismiss a case challenging President Donald Trump’s move to double the tariff imposed on imports from Turkey.

The court seemingly rejected the government’s argument that all the President has to do is to indicate is “a general need” for national security tariffs. The court clearly stated that an “expansive view ” of §232 is mistaken. It also forcefully concluded that the President needs to conform to the procedural requirements of §232.

(The failure to comply with the statutory time period, to act timely after receiving the Commerce Department’s report,  concerning Trump’s threatened auto tariffs on the EU, may well prove to be fatal in that matter. But that’s another story.)

Here are a two quotes from the Court of International Trade recent opinion:

 
The president’s expansive view of his power under Section 232 [trading regulations] is mistaken… Section 232 requires that the president not merely address a threat to national security; [he] must do all that, in his judgment, will eliminate it.” 

“Although the statute grants the president great discretion in deciding what action to take, it [restricts] the president’s power both substantively, by requiring the action to eliminate threats to national security caused by imports, and procedurally, by setting the time in which to act.” 

The US government requested that the CIT dismiss the case, arguing that the president proclaimed the increase in tariffs lawful and “a general need.” But the CIT denied the government’s motion and the case will continue to move forward at the court.

 

Slip Opinion, Transpacific Steel (CIT) (Nov. 15, 2019).

“New Section 232 National Security Case in Court of International Trade — Turkish Tariff Increase.” American Metal Market (Nov. 19, 2019).

Malawer, “Trump, Trade and Federal Courts.” China and WTO Review (Sept. 2019).

Malawer, “Section 232 Litigation in the U.S. Court of International Trade and President Trump’s Trade Policies. “  CHINA & WTO REVIEW  (Feb. 2019).

                                       

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Bizarre Int’l Investment Proposals from Trump — They Only Hurt the U.S. (Not China).

 

Trump is exploring delisting Chinese firms on US exchanges, restricting US firms investments in China, and Chinese investments in the US. These proposed restrictions on US-China bilateral investments are really destructive. It goes beyond really dumb tariffs. nytimes.com/2019/09/27/us/

Trump’s knowledge of int’l relations, global business & law (both domestic and int’l) gets more questionable every, single day. It’s beyond bizarre. It’s bad for business & the global system. Needless to say also for our economic development & our national security. Did I say bad?

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Trump’s Trade Policies and the Federal Courts — Will the Courts Rein Him In?

My new article on President Trump’s trade policies, delegation of authority and the federal courts. Please click this link ,,,,,,,,,,,,,,,,,,,,, Malawer, “Trump, Trade and Federal Courts.” China and WTO Review (Sept. 2019).

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TRADE CASES & TRUMP’S TARIFFS — Restricting Reliance on National Security?

 

My op-ed in the Richmond Times-Dispatch (June 17, 2019) ………….

 

                            TRADE CASES AND TRUMP’S TARIFFS —

                           Restricting Reliance on National Security?

 

                                             By Stuart S. Malawer

 

I predict that three major federal court cases, which might involve the U.S. Supreme Court, will rein in President Trump’s abuse of trade legislation by November 2020. They all involve presidential claims of national security to impose tariffs and other trade restrictions. To do so would be in the best national security interests of the United States and American democratic governance.

The most recent trade restrictions — who knows which others will arise — concern national security claims as a basis for new tariffs on Mexican goods to induce greater immigration control, restrictions on Chinese telecom giant Huawei in the name of national security, and national security claims for imposing tariffs on steel applicable to many of our trading partners and closest allies.

Two significant court actions already are pending against the Trump administration for its trade actions. The first, which is pending at the Supreme Court, concerns steel imports from many U.S. trading partners, including China. The second, which was just filed, concerns investment and trade restrictions on Huawei. A third case concerning the “Mexican immigration tariffs” is imminent and probably will involve the U.S. Chamber of Commerce, among others.

Filed by steel importers, the first case involves the older Supreme Court case FEA v. Algonquin SNL Inc. (1976), which concerned tariffs and the national security provision (Section 232) of the Trade Expansion Act of the 1960s. This case is now appealed to the Supreme Court by the steel importers, following an adverse decision by the Court of International Trade. The lower court grudgingly upheld President Trump’s steel tariffs because it hesitated to overrule even questionable precedents.

The second case just filed by Huawei addresses the constitutional prohibition against congressional bills of attainder that single out persons, companies or groups for punishment. Congress seemingly singled out Huawei by imposing restrictions on it for national security reasons under the new National Defense Authorization Act (Section 889).

The third possible case, threatening tariffs on Mexican imports, is based upon President Trump’s claim that Mexican immigration policy is a threat to U.S. national security under the International Emergency Economic Powers Act. Any legal action would certainly raise the threshold issue, if that claim is sufficient to satisfy the national security requirement that allows for a valid emergency declaration.

Federal courts review presidential actions even when they involve foreign policy.

This goes back to United States v. Curtiss-Wright Export Corp. (1936), a Supreme Court case involving an arms embargo declared by President Roosevelt during the Chaco War in Latin America, and Youngstown Sheet & Tube v. Sawyer (1952), where the Supreme Court addressed President Truman’s seizure of steel mills during the Korean War. In this case, the court clearly stated that the president’s powers as commander in chief do not include seizing domestic steel mills. Justice Robert Jackson stated the president is commander in chief of the military, not commander in chief of the nation.

Presidential actions — even when the president argues they are not reviewable by courts — are indeed subject to judicial review. This is what is called the rule of law. Congress makes the laws, and all laws and executive actions must comply with the U.S. Constitution to uphold the structure of the federal government and to preserve individual rights. This is the essence of America’s exceptionalism.

Under the U.S. Constitution, Congress has exclusive authority over trade. However, much of this authority has been delegated to the executive branch over the decades. So far, Congress has failed to reclaim its trade authority.

Congress has the sole constitutional authority to enact new taxes. Congress never intended to abrogate its taxing authority by allowing any president to unilaterally impose new tariffs, which are taxes on U.S. imports paid by U.S. firms and consumers. Tariffs and foreign retaliatory tariffs hurt everyone, including farmers, importers, consumers and domestic producers. They are detrimental to state and national economic development.

I predict the federal courts will uphold the separation of powers in face of this unprecedented onslaught of presidential tariff and trade actions by a president relying on dubious claims of nation security. This system has been the foundation of U.S. foreign and national security policy since 1945 and remains so today. The preservation of this system is in the national security interest of the United States, as well as basic American governance.

 

Stuart S. Malawer is Distinguished Service Professor of Law and International Trade at George Mason University’s Schar School of Policy and Government. Contact him at stuartmalawer@msn.com.

 

 

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