Biden and National Security (and Trade) — New Era of American Crisis.

New article ———- Malawer, “Biden, National Security and Trade.” (2021).

                                    [Excerpt from conclusion …..)

In my view, one of the first issues that the Biden administration ought to
confront is the longtime delegation (since the 1930s) of trade authority from
Congress to the President, particularly in the area of national security, found
in various legislative enactments, especially Section 232 of the Trade Expansion Act and Section 1701 of the International Emergency Economic Powers Act.

While it may seem counterintuitive for Biden to restrict his own authority,  
necessary to ensure that the abuse and corruption of national security cannot
happen again. Recently proposed legislation by Virginia senator Tim Kaine, 
Reclaiming Congressional Trade Authority Act of 2019, did not gain much
traction, unfortunately. But its time has now come again. Such restriction would be something akin to post-Watergate legislation -passed in the aftermath of President Nixon’s abuses and criminal and unethical activities – that restricted presidential powers and reasserted Congressional authority, which worked to some extent.

Remember that Congress, not the President, has the exclusive authority to regulate trade. However, since  1780s, trade policy has increasingly been understood to have critical policy implications and has become central to foreign affairs. Of course, the President has extensive powers related to foreign affairs, including the ability to negotiate and withdraw from international agreements.

This balance of power between the branches needs to be recalibrated
now. The direction in which the WTO has moved in cases concerning national
security is not a good omen for the US. Recalibrating domestic law would 
likely preclude future quite questionable US actions from being contested (and ruled against) by the WTO and the global trading system. That is good.

But most importantly, first and foremost, President Biden needs to
revitalize American democracy in the post-Trump world and then reclaim
America’s global leadership.

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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