Trade and the Separation of Powers

Abstract

This Article makes three contributions. First, we argue that the current discontent over trade is not just a matter of the distribution of economic gains and losses but a matter of the distribution of constitutional powers. We provide a thorough descriptive account of the two paradigms for trade within our constitutional system and show that trade has migrated from a domestic to a foreign affairs matter--and ultimately that it has become unhooked even from specific foreign affairs objectives. As trade drifted further away from the balance struck by our separation of powers and became increasingly rooted in the presidency, agreements liberalizing trade rules became more viable-but at the cost of the political sustainability that comes with greater congressional involvement.

Second, we make a normative case for rebalancing trade within the constitutional structure. We argue that trade shares few similarities with other foreign affairs and national security areas in which the President is seen to have a functional advantage, and, perhaps surprisingly given the conventional wisdom, that the parochial interests of Congress present strong benefits to trade policymaking that are widely undervalued.

Finally, we apply this rebalanced framework for trade law and policy to a variety of contemporary debates, including the role of fast-track authority in negotiating and approving trade agreements, the President's power to declare trade wars, the scope of the President's authority to withdraw from trade agreements, the use of unorthodox international agreements in the commercial context, and the increasing conflict between trade agreements and state and local authority, which we term "trade federalism."