Stuart S. Malawer, TRUMP AND TRADE — POLICY AND LAW (HeinOnline 2021).

PREFACE AND INTRODUCTION TO

STUART MALAWER, TRUMP AND TRADE — POLICY AND LAW (2021)

PREFACE

The Honorable Peter S. Watson, LL.B., DCL

It is good news that Professor Stuart Malawer has selected and compiled the numerous articles that he has authored over the last four years on global trade and, in particular, on the Trump administration’s attack on the global trading system and his ferocious, unending attacks on the U.S. legal system and the rules-based international system and its institutions.

Professor Malawer and I share the experience of having earned both a law degree and a doctorate focusing on international law and trade. My professional experience includes serving on the National Security Council, as Chairman of the U.S. International Trade Commission, and as President of the Overseas Private Investment Corporation. Our professional and educational interests in global trade, international law, foreign policy, international investments, economic development, and national security overlap significantly.

Since the 1990s, I have collaborated with Dr. Malawer on a range of global activities. Most notably we have been colleagues at the Oxford Trade Program, a partnership between St. Peter’s College, Oxford, and George Mason University. As part of that program, we developed a week-long Geneva program: held at the World Trade Organization in Geneva, Switzerland. This was one of the first global trade programs for graduate, business, law, and trade students emphasizing the WTO, its dispute resolution system, and other international institutions.

I agree fully with Dr. Malawer’s conclusion: “Trump’s attacks on the existing international system have significantly diminished the standing of the United States in diplomatic relations with our friends and allies and has only emboldened others to take unilateral actions. Consequently, over the last four years, the United States has failed to formulate viable foreign policies and strategies to tackle the multitude of global problems confronting its national interests and security.”

If I were to summarize Professor Malawer’s contribution, it would be the following: he clearly understands inter-connected trade, law and public policy problems within an interdisciplinary construct. His rigorous assessment, reflects an interest  analysis approach to assessing very complex issues. We all owe a debt of appreciation to Professor Malawer for his early and persistent examination of trade policies under the Trump administration. He was an early mover in this space and has proven prescient. His discussion of challenges confronting the Biden administration is reasonable and pragmatic.

INTRODUCTION

Professor Stuart S. Malawer. J.D., Ph.D.

Donald Trump and I are both from Queens, New York. In fact, we are about the same age and were almost neighbors, living less than two miles apart. I have followed his family and his business career since the 1960s. I watched the U.S. Department of Justice charge him in the 1970s for racial profiling in his family’s real estate rentals and observed his opposition in the 1980s to Japanese investment because it competed with his activities in the New York City real estate market. From the earliest days, Donald Trump abused the domestic legal system and lambasted international trade and foreign investment.

On his first day in office, Trump withdrew from the Trans-Pacific Partnership. He has continued to oppose global trade and cooperation with a growing intensity throughout his four years in office. Simply put, he has shown nothing but contempt and blame for trade and multilateral cooperation.

Trump’s continuous attacks on the World Trade Organization (WTO) and his recent withdrawal from the World Health Organization in the midst of the global pandemic are among his most egregious actions. From the outset of his administration, he imposed unilateral tariffs and trade sanctions that are legally questionable under U.S. and international law. He resorted to tariff wars and a broad range of other trade and investment threats against a large number of countries.

His default policy actions are to complain, reject and withdraw. He has complained about NAFTA, NATO, the European Union, the United Nations, the International Criminal Court, the International Court of Justice, and the WTO, among others. He has withdrawn from the Iranian nuclear deal, a bilateral agreement with Iran, UNESCO, the UN Human Rights Council, and the Open Skies Treaty. The Trump administration’s aggressive use and weaponization of treaty termination has never previously occurred. His foreign policy doctrine can very well be labelled “Rejection and Withdrawal.”

These actions or threatened actions concerning trade and treaty relations are consistent with Trump’s “America First” world view, which championed American isolationism in the 1930s. This policy from the ashes of an unfortunate era has only made the United States less safe today. It has placed the United States in opposition to other nations trying to confront global issues collectively.

Trump’s foreign policy and trade actions have not led to anything good. They have only hurt the U.S. economy, farmers, and workers. For example, his agricultural tax subsidies to offset export loses to farmers have proven gravely ineffective and his tariffs have not increased manufacturing jobs in the United States. Exports have been dramatically reduced. His use of export and investment controls have significantly hurt technology and telecommunication firms.  Global supply chains remain global and reshoring is not happening. His unending and ever-growing animosity toward China, supercharged by his claims relating to the origins of the global pandemic, has now become his principal 2020 reelection strategy. This continues in light of the racial unrest within the United States, which the president further heightened by his astounding militarized response.

This book is a compilation of my writings as an observer of Trump’s trade policies over the last four years (and a few earlier ones). These have appeared in various academic journals and on my blog “Global Trade Relations.” In particular, I focus on the legal aspects of Trump’s protectionist policies, which hearken back to the 1930s but in many ways are much worse than those policies. Donald Trump clings to the delusion that bilateral pressure will rebalance trade in favor of American industry. Trump’s trade actions raise the issues of constitutional law and the interrelationship of public international law and U.S. constitutional law as matters of paramount concern today. The Trump administration’s actions have also given rise to a new aggressive and proactive federalism to counteract erratic, incoherent, and failed policies (e.g., trade, immigration, climate control, and the COVID-19 pandemic).

If you think about it, the world of the 1930s was much less economically or politically interconnected. If the earlier protectionist, mercantilist and unilateral policies led to global economic chaos and then war, what can today’s actions lead to in a time of nuclear weapons and billions more people involved in global commerce?

Trump’s policies represent an aggressive attack on the post-World War II international order. Most notably, Trump’s attack on the judicial system of the WTO, as a derogation of U.S. sovereignty, is hugely baffling. The WTO’s dispute resolution system was an American initiative that reflected the core American belief in a rules-based global system and the American value of relying upon litigation to provide fair judicial determination of conflicts. Trump’s policies reflect his reliance on unilateral actions, raw power politics, the law of the jungle, bluster, and threats. This has only led to needless stress on the U.S. and global economies.

Trump’s attacks on the existing international system have significantly diminished the standing of the United States in diplomatic relations with our friends and allies and has only emboldened others to take unilateral actions. Consequently, over the last four years, the United States has failed to formulate viable foreign policies and strategies to tackle the multitude of global problems confronting its national interests and security.

In the run up to the fall 2020 presidential election, I offer this book as a primer on Trump’s trade policies and his ferocious and unending attacks on both the U.S. legal system and the rules-based international system and its institutions.

About Stuart Malawer

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