Biden’s Trade Policies — One Year In — Same as Trump’s? More Aggressive?

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[Excerpts from a forthcoming article, now on SSRN at  Also available as draft at Click Here. ……………

The big question is the following: Is the Biden trade policy different from the Trump chaos? 

My answer is “no.” I consider Biden’s trade policy to be Trump’s without the tweets. They both rely on unilateral measures and broaden protectionist ones.  In fact, Biden not only relies upon Trump’s actions but also has broadened them.[1] 

Trade issues have reemerged during the past few months as high-priority domestic and foreign policy issues for the Biden administration. This is especially true for the situation regarding trade with China and how this relates to U.S. domestic economic and national security issues. Let’s look at what Trump did, what Biden has done so far, and the challenges ahead. 

Not much change has been made in trade policies between President Trump and President Biden. In fact, Biden, relying on Trump’s actions, has broadened them. A slight change in tune has occurred: a little more reconciliation with Europe and international organizations. However, it is extremely difficult to identify any significant difference concerning China, Russia, or Iran. Has Trump’s America First policy morphed into Biden’s America First or Workers trade policy? 

The Biden administration is confronting various trade challenges: removing Trump’s tariffs that are still in place; joining the revised TPP, especially now that China and South Korea have indicated their interest in joining; reengaging with the WTO, especially over the dispute resolution system; enforcing the Phase One Agreement with China, particularly the purchase requirements; and more forcefully confronting China’s policies concerning state-owned enterprises and government subsidies. Other issues relating to trade are pending and growing in importance—for example, climate change, a carbon tax, environmental issues, and pandemics. 

What specifically must be done by the Biden administration? A great deal. That’s another story. 


[1] I have written several journal articles recently on Trump’s trade policies and early trade actions by President Biden. Malawer, Trump, Litigation and Threats: From Queens to the World Stage. China and WTO Review 209 (No. 1) (2021). Available at; Malawer, Biden’s Trade Policies — Recalibrated, More Focused, and a Bit Concerning.7 China and WTO Review 391 (No. 2) (2021) Available at; Malawer. Biden –National Security, Law and Global Trade: Less Subterfuge and More Strategy in the New Era of Crisis. China and WTO Review 185 (No. 1) (2021). Available at 

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Josh Hawley, Harding and Hoover — Trade & Back to the Future — Not a Good Idea.

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Recent opinion piece by Josh Hawley. My take. He’s one of the most protectionist and trade xenophobic today. He make former U.S. presidents Harding and Hoover look mighty good. Here are some of his views as contained in today’s New York Times piece:

….We liberalized and expanded trade relations with China under the delusion that it could be influenced into becoming a peace-loving democracy. We ceded more and more of our national sovereignty to multinational organizations like the World Trade Organization, and supported China’s membership to that body.

…. We need to fundamentally restructure our country’s trade policy and decouple our security and safety from the profit-seeking of multinational corporations. 

… Under this plan, officials at the Department of Commerce and the Department of Defense will identify goods and inputs they determine to be critical for our national security and essential for the protection of our industrial base. These goods would then become subject to a new local content requirement: If companies want access to the American market for these critical and essential goods, then over 50 percent of the value of those goods they sell in America must be made in America. Companies will have three years to comply, and can receive targeted, temporary waivers if they need more time to reshore production. In effect, the legislation applies the domestic sourcing principles of the Buy American Act — a law that governs federal government procurement — to the entire commercial market.

… When it comes to our most critical goods, this “majority-made” standard is just common sense and harder to game than more complicated rules. And the requirements of this standard will be enforced with a compliance mechanism that closely mirrors one of the nation’s oldest trade remedy regimes: anti-dumping. Under my proposal, domestic producers can petition the U.S. International Trade Commission if they suspect that corporations or importers have violated the local content requirement, and the secretary of commerce can take enforcement actions such as civil penalties following an investigation to ensure the new standards are met.

….I’ve previously called for the abolishment of the World Trade Organization to ensure that the United States can safeguard its economic sovereignty. Regardless of how this proposal affects existing trade agreements. 

….Local content requirements can help reverse our dependence on foreign nations both by discouraging multinational corporations from relying on fragile global supply chains, and also encouraging them instead to build productive capacity in the United States. 

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The U.S. Strategy as to U.S. – China Trade Relations — Is Biden Same as Trump But without the Tweets? We’ll See.

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The United States Trade Representative Katherine Tai recently delivered remarks at the Center for Strategic and International Studies (CSIS) outlining the Biden-Harris Administration’s new approach to the U.S.-China bilateral trade relationship. Not clear how different Biden’s trade policy is from Trump’s concerning China. We’ll see, hopefully it will be. Here’s my summary of those remarks.

  • I have said this before and I will continue to say it: the U.S.-China trade and economic relationship is one of profound consequence.  As the two largest economies in the world, how we relate to each other does not just affect our two countries. It impacts the entire world and billions of workers.
  • This bilateral relationship is complex and competitive.  President Biden welcomes that competition to support American workers, grow our economy, and create jobs at home.  
  • He believes we need to manage the competition responsibly – and ensure that it is fair.  
  • We will start a targeted tariff exclusion process.  We will ensure that the existing enforcement structure optimally serves our economic interests.  We will keep open the potential for additional exclusion processes, as warranted. 
  • We continue to have serious concerns with China’s state-centered and non-market trade practices that were not addressed in the Phase One deal.  As we work to enforce the terms of Phase One, we will raise these broader policy concerns with Beijing.  
  • And we will use the full range of tools we have and develop new tools as needed to defend American economic interests from harmful policies and practices.
  • Finally and critically, we will continue to work with allies to shape the rules for fair trade in the 21st century, and facilitate a race to the top for market economies and democracies.
  • We focused on dispute settlement cases at the WTO.  We brought 27 cases against China, including some I litigated myself, and through collaboration with our allies.  We secured victories in every case that was decided.  Still, even when China changed the specific practices we challenged, it did not change the underlying policies, and meaningful reforms by China remained elusive.  
  • It launched an investigation focused on China’s forced IP and technology transfer policies – longstanding and serious problems.  This led to substantial U.S. tariffs on imports from China – and retaliation by China.  Against this backdrop of rising tensions, in January 2020, the previous administration and China agreed to what is commonly referred to as the “Phase One Agreement.”  
  • Every steel plant that shuttered left hundreds of workers without livelihoods.  It also left communities reeling, as small businesses dependent on plants also closed their doors and blighted buildings brought down real estate values. 
  • We see the impact of China’s unfair policies in the production of photovoltaic solar cells.  The United States was once a global leader in what was then an emerging industry.  But as China built out its own industry, our companies were forced to close their doors.  
  • U.S. agriculture has not been spared either.  While we have seen more exports to China in recent years, market share is shrinking and agriculture remains an unpredictable sector for U.S. farmers and ranchers who have come to rely heavily on this market.  China’s regulatory authorities continue to deploy measures that limit or threaten the market access for our producers – and their bottom line.  
  • We also see troubling dynamics playing out today with the semiconductor industry.  In 2014, China issued an industrial plan to announce, “the goal of establishing a world-leading semiconductor industry…by 2030.”  Reportedly, China has already spent at least $150 billion on this effort, with more on the way.  Its intentions are clear, just as they were with steel and solar.  
  • And we will also directly engage with China on its industrial policies. Our objective is not to inflame trade tensions with China.
  • But above all else, we must defend – to the hilt – our economic interests.  
  • I have been working to strengthen our alliances through bilateral, regional, and multilateral engagement.  And I will continue to do so.

Tai’s Comments at CSIS on US-Chia Trade Strategy (October 4, 2021).

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First 6 Months of Biden’s Trade Policy — Concerning.


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The Biden administration’s early policies toward China, global trade, and the WTO have proven to be attuned to the newer developments of the times. In practice, however, these policies are a bit concerning.


There has been no wholesale de-Trumpfication of the US trade policy. The administration has not immediately rejected many of Trump’s chaotic trade policies. It has recalibrated some of them and extended others. It has clearly put China at the center of its policies, raising the importance of human rights. However, it is disappointing that the administration is keeping some of the most grievous policies (Section 232 steel tariffs) and not addressing others, most notably the WTO’s dispute resolution system, which represents the core of an international rules-based trading system. In fact, both the Trump administration and the new Biden administration have been oblivious to the filing of new matters.


Biden’s policies toward China keep many of Trump’s signature policies in place, including the Phase One Trade Deal. President Biden has also kept Section 232 (steel tariffs) and Section 301 (tariffs on Chinese goods). Indeed, while imposing new sanctions because of human rights violations concerning the Uighurs, which reflects core American values, he extended restrictive investment measures on Chinese firms.  His administration is now exploring a new application of Section 232 tariffs on China related to the import of rare earth elements and new sanctions over China’s actions (its new National Security Law) concerning human rights in Hong Kong. President Biden is now also grappling with the US sixty-year-old sanctions on Cuba in light of recent historical demonstrations in Cuba for greater human rights and freedom.


     Biden’s policies toward the WTO have essentially been uninspiring. He has not reversed Trump’s destructive policies relating to the WTO’s dispute resolution system including its Appellate Body. The Biden administration has continued to follow the later Trump policy of not filing actions in the dispute resolution system against China or any other country. This is contrary to Biden’s often-stated goal of following and enforcing global trade rules and supporting the global system. Dispute resolution is at the core of the peaceful settlement of trade disputes that could otherwise spin out of control.



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The G-7 has taken the first step in restructuring the global tax regime. This is the first international effort in decades. This has huge implications for global commerce (especially tech firms). Taxation of global groups & transactions is complex. Global trade issues are intricately related to international tax rules. Much beyond tariff taxation. Lot of work still needs to be done. Especially as to the minimum corporate rate, source taxation (location of economic activity) and settling issues of digital taxation. Drafting a code, national adoption and national implementation are huge next steps. For example, getting the eventual agreement through the U.S. Congress especially if it’s a formal treaty that require 2/3 vote of the Senate. But this is necessary to stop tax evasion, tax avoidance and a global race to the bottom. Ensuring tax compliance by multinational corporation is essential for an equitable economic system.

G-7 and Global Corporate Taxation.” New York Times (June 5, 2021).

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An excellent assessment of President Biden’s tariff actions (and non-actions) during the first 100+ days appeared as a recent op-ed in the Washington Post. Here are some excerpts:

…. Biden’s first four months in office have seen an abrupt reversal in a number of his predecessor’s policies, but Trump’s costly record of reckless tariffs remains intact.

…. This unexpected failure to act has very real consequences.

…. Biden has trumpeted their commitment to reviving a rules-based global order based on negotiated commitments and standards — a clear and unambiguous rejection of Trump’s unilateralist approach.

…. Previously, the United States would lead the way in negotiating under established trading rules and referring trade disputes to the World Trade Organization (WTO), where Washington has historically enjoyed a high rate of success. But Trump, disdainful of multilateral organizations, trashed the WTO’s reputation and sabotaged its operations.

…. The administration needs to take steps to repair U.S. trade policy — and do it now.

…. A strong case can also be made for immediate steps to cancel the tariffs the Trump administration imposed upon China — and which quite predictably triggered retaliatory measures against U.S. exporters.

…. Returning U.S. trade policy to traditional norms doesn’t mean restoring the mantra of free trade, but reversing Trump’s unilateral policy errors will provide a more workable foundation to promote the kind of jobs-promoting fair trade that the administration favors.

“Trump’s Reckless Tariffs Remain Intact: Biden’s Failure to Reverse Them has Real Consequences.” Washington Post (May 24, 2921).

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BIDEN’S TRADE POLICIES — More Needs to be Done, Now.


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President Biden’s recent trade actions amount to more than a mere recalibration of Trump’s trade and tariff policies, though they certainly are not a grand reversal of them. Biden needs to more fully address trade policy now. Engaging the global economy is critical to promoting economic development in the United States. Furthermore, trade policy is more than just trade. It involves foreign policy, national security, human rights and more.

However, President Biden’s actions so far indicate starting a somewhat newer path in addressing systemic issues in the global system and the United States’ interface with that system.

Biden’s policies are a bit tougher on China than I thought they would be. In particular, he has not removed Trump’s Section 232 and Section 301 tariffs. However, he has made thoughtful international tax proposals and has discussed more multilateral engagement and has promised more bilateral and multilateral diplomatic consultations. That said, he has not done much yet concerning the WTO and its dispute resolution system. 

We have not had much movement in joining newer regional arrangements (such as the revised TPP), but there has been more emphasis on human rights (and use of trade sanctions to promote them). That’s good. Biden has a major focus on increasing the United States’ competition (not confrontation) with China and has suggested domestic policies to better engage in the global economy. However, elements of his own party have hampered him in taking bolder trade actions. This needs to be addressed. There has even been a hint of protectionism in Biden’s Buy American proposals and there is a serious question of their legality under WTO and international trade law.

Here are some of the most recent U.S. trade developments:

  • The EU has recently shelved plans to increase retaliatory tariffs on U.S. imports because of Trump’s Section 232 steel tariffs, with the hope of negotiating better U.S. trade relations.
  • There have been newer negotiations with the EU on resolving the feud over subsidies for Airbus and Boeing. Again, retaliatory duties have not been increased.
  • The Biden administration has removed Xiaomi from the U.S. blacklist, which prohibits the U.S. from investing in Chinese firms with ties to the Chinese military. A recent federal court case has restricted such enforcement. Other federal cases had restricted earlier trade and investment measures against Chinese firms (TikTox).
  • President Biden has waived sanctions on the German firm overseeing Nord Stream 2, the Russian natural gas pipeline through the Baltic to Germany. 

It’s clear that Trump’s trade and tariff policies have been a huge failure. His signature effort, his Section 232 steel tariffs, were a debacle. He claimed that steel imports from the EU and Canada were a national security risk. Really? These tariffs have been estimated in costing U.S. consumers $900,000 for each job saved.

My conclusion is that President Biden has moved too slowly and this is somewhat surprising, although not completely. President Biden needs to come to grips with a broad range of trade and its related issues such as the protection of intellectual property rights, foreign investment and extraterritoriality of U.S. economic sanctions. The international system won’t reward past protectionism and unilateralism. While there are many other issues confronting the Biden administration, domestic and international, attention to trade and its related issues is also crucial. 


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Antitrust Reform — From the Gilded Age to the Digital Age — Way Overdue.

Amy Klobuchar’s ANTITRUST (2021) reviews and assesses antitrust law and regulations from the “Gilded Age” to today’s “Digital Age.”

She declares ‘trickle down economics of Reaganism along with the Chicago School’s ‘law and economics” approach (focusing on shareholder wealth creation) brought only lax antitrust enforcement. And directly led to grotesque corporate concentration and structural economic inequality. Her remedy is to resuscitate government regulation, adopt new legislation, and to counter aggressively conservative federal judges. Especially those most recently appointed by Trump. New rules need to be adopted for domestic and global transactions in this new digital era of domestic and global commerce. Focusing on large multinationals and Internet firms. I agree.

The following are really interesting and instructive passages from her book:

Nowhere do the modern-day competition issue come into deeper focus than with today’s Big Tech companies.

America’s laws have not been updated to track the changes in America’s monopoly landscape. Our Congress refuses to do it. Our enforcement tools are getting rusty. Our competition enforcers don’t have enough resources to effectively take on multibillion-dollar, much less trillion-dollar companies. And American courts are increasingly populated by conservative judges, including on the U.S. Supreme Court.

The remedy? Our antitrust laws — and our enforcers — need to be as sophisticated as today’s corporate titans, and we need judges who will interpret the antitrust laws in a reasonable fashion, from the U.S. Supreme Court on down.

… Extremely complex antitrust issues exist in the international arena.

… International deals pose unique regulatory and national security concerns.

… In addition to national security consideration, the evaluation of proposed international deals means that antitrust agencies in more than one country is involved.

… One particular and pressing global challenge America faces on competition is China.

… Discrimination against foreign companies is forbidden under World Trade Organization rules, but it is difficult to prove.

… The challenge, of course, is how to make America’s antitrust laws, already corrupted by Robert Bork’s ideological worldview relevant once more in an ever-changing business environment. There is — to put it mildly — a major disconnect between marketplace realities and the U.S. Supreme Court’s jurisprudence. 

… Reasonable regulations work in tandem with antitrust laws to protect against abuse of power.  It is now crystal clear that the antitrust laws must be seriously updated and made relevant again.

… A rigorous competition policy evens that playing field, spurs innovation, and reduces consumer prices.


In conclusion, this new Gilded Age 2.0 requires serious antitrust reform. U.S. corporate tax laws (as to tax havens and offshore corporations) need to be significantly reformed in this new digital era. But that’s another story.

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Biden’s Global Trade Updates — Taxes, Sanctions, Human Rights and Technology.

The following items are those I listed on my website  concerning President Biden’s recent trade actions. For the first 100 Days they amount to more than mere recalibration of Trump’s trade and tariff policies but not a grand reversal of those policies.

They posit starting a newer path in addressing systemic issues in the global system and the U.S. interface with the international system.

A bit more tougher on China, a bit slower in removing Trump’s Section 232 and Section 301 tariffs, good international tax proposals, more multilateral engagement, not much yet on the WTO, not much movement in joining newer regional arrangements, but more emphasis on human rights (and use of trade sanctions). Major focus on increasing U.S. competition with China (not confrontation) and developing policies to better engage in the global economy.


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Linkage Between Federal Trade Policy and Rural Economic Revival — Looking at Martinsville, Virginia.

The conclusion of a recent study concerning Biden’s trade proposals and state economic development  is really important. It looked at one rural region economy in Virginia. It concluded there is an important link between U.S. trade policy and state economic development. The bottom line is there is a federal need to support rural communities and workers. Do not try to coerce foreign countries. That does not work. But Biden’s “worker-centric” policy will not be enough to get trade on a better track. A bolder approach is needed.

Here is a summary of that study that appeared just recently:

Unsurprisingly, Americans have complicated views on trade. Although a majority of voters see free trade as a good thing, barely one-third believe that it creates jobs or lowers prices.

Part of what made the surge in Chinese exports so painful for American workers was that many of them lived and worked in industry towns. When manufacturing jobs in those towns disappeared in response to rising import competition, it wasn’t just factory workers who suffered: everyone else did, too. Consider Martinsville, a small town in southern Virginia that is part of a manufacturing belt that stretches through North Carolina and into northern Georgia, Alabama, and Mississippi.

The Biden administration should focus on the consequences of job losses rather than their causes.

When considering how to promote job creation in distressed regions, it is important to acknowledge that most of the U.S. jobs that were lost to import competition (or to automation) are not coming back. The China trade shock ended almost a decade ago.

The Biden administration should instead try to help communities such as Martinsville thrive. Doing so will require ingenuity and experimentation. Federal officials should give their local and state counterparts wide latitude to pursue policies that are right for the places they serve. Conventional approaches won’t necessarily be the most effective.

Take tax incentives, for example, which officials often use to entice businesses to move to their states or municipalities. Economist have found that although such measures expand output in targeted industries, they appear to do little to raise local living standards. And for each job they create, such incentives impose costs that are nearly ten times as high as those of some other options for creating employment, such as redeveloping defunct industrial sites known as brownfields.

So what actually works? Evidence shows that active labor-market programs, designed to help young and disadvantaged workers succeed in the labor market, are a good bet.

Helping left-behind regions should be a core goal of Biden’s administration. But trying to undo three decades of structural change in the global economy isn’t the right way to get there.

Biden and his team need to be clear-eyed about what trade policy can and cannot do to help workers hurt by globalization. The damage has been done, and free trade isn’t going anywhere. Protectionist measures and narrow attempts to placate labor unions will do little to help workers who are already hurting or to help others avoid a similar fate.

Better to help the unemployed get back on their feet.

“Trade Wars & Globalization (Proposals for Biden).” Foreign Affairs (Special Issue) (May / June 2021). See second article — “Can Trade Help Workers.”

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