Geopolitical risk is now among the most important factors in the formulation of multinational corporate strategy and the US trade policy. The US has aggressively enacted national-security-based trade sanctions, which recently include export controls on semiconductor chips and restrictions on outbound and inbound investment. The US has also adopted major legislation providing historical subsidies and tax breaks. Congress and the courts have upheld the president’s use of national security as a basis of trade actions and generally supported his protectionist policies. Trade should not be restricted or weaponized. Global and national rules need to be strengthened and, perhaps, a bit updated, but protectionism in the name of national security is a losing argument. The growing movement by the US to rely more on national security and protectionism in formulating trade policy is a very worrisome development. No one in Washington is proposing a return to pre-Trump policies. The real question is how far US trade policy will continue to change in the near future. Geopolitics will give us the answer.

There has been a tectonic shift in the trade relationship between the United States (US) and China. This can be seen in the passage of new US legislation, recent US trade restrictions on exports and investment transactions with China, and worsening US relations with the World Trade Organization (WTO), particularly with its dispute resolution system. The Trump administration initiated a haphazard tariff and trade war with China, reversing decades of US trade policy pursuant to its long-standing stances of supporting free trade. To the dismay of many in the trade community within the US and globally, the trade actions by President Trump have been significantly extended and broadened by the Biden administration in its first two years, despite the expectation that it would reverse many of Trump’s policies. In this article, I present seven observations concerning President Trump’s and President Biden’s trade policies.

After President Biden’s first year in office, one big question is whether the Biden trade policy differs from the Trump chaos. My answer is no. I consider Biden’s trade policy to be Trump without the tweets. They both relied on unilateral measures and broadened protectionist ones. In fact, Biden not only relies upon Trump’s actions but also has expanded them. Trade policies have not changed much between Presidents Trump and Biden. In fact, Biden, relying upon Trump’s actions, has kept them in place. There has been a slight change in tune: a little more reconciliation with Europe and the OECD. However, it is extremely difficult to identify any significant difference concerning China, Russia, and Iran. Has Trump’s America First policy morphed into Biden’s America First or worker-centric trade policy? It looks that way. Let’s look at what Trump did, what Biden has done so far, and the challenges ahead.

The Biden administration has moved to refocus the US trade policy on China, acting to promote competition but not thoughtless confrontation. Some actions were strong right out of the gate; that should not have been so surprising, but it still was. If anything, the recently concluded G-7 meeting in Cornwall and the subsequent US-EU summit in Brussels indicate that the Biden administration intends to take a stronger and a more multilateral and diplomatic approach to confront China. This approach was further supported by the US allies at the recent NATO meeting in Brussels. The administration is stressing cooperation with allies and competition with China. Biden’s recent diplomacy demonstrates his overriding preoccupation with China. Moving away from Trump’s dysfunctional and disastrous unilateral measures of confrontation with all can only help stabilize the US-China relations and rebuild the WTO, hopefully.

The US has entered a new era of crisis. President Biden has just been inaugurated. He faces historical challenges to return the US to global leadership. The primacy purpose of this article is to discuss national security and trade policy in the new Biden administration. First, I look at the historic and dubious claims made by the Trump administration in utilizing national security as a cover for protectionist trade actions, as well as at the federal court cases addressing these claims. I then assess the cases that have come before the WTO over the last two years, raising for first time the issue of the national security exception under GATT Article XXI. Finally, I conclude that President Biden’s overwhelming priority is to resurrect American democracy and alliances. But he will also need to address a broad range of trade issues and to restrict reliance on national security as a cover for populist and protectionist policies.

In this essay, the author will discuss recent United States Supreme Court cases as well as international trade cases decided this year by the specialized international trade courts in the United States. Let me then discuss recent U.S. trade action concerning China and put this in the context of President Trump’s generalized approach to China and international trade. This article will conclude with a few observations pertaining to the upcoming presidential election in the United States. The. Supreme Court recently ruled on two highly politicized and historic cases on executive power. What has been almost totally overlooked is an international trade decision by a three-judge panel of the United States Court of International Trade. That case and earlier trade cases indicate the start of a multifaceted attempt to restrict the president’s trade policies. Either the 2020 presidential election will put a stop to President Trump’s reliance on national security to establish disastrous trade policies, or the country will be in this mess for years to come.

Donald Trump’s methods of operating and conducting national security and 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. My thesis is straightforward: One can draw a straight line from Donald Trump’s ruthless mode of operating in the contentious world of New York real estate to his operations on the world stage today. From Queens to the world stage, there is a straight line from using threats and litigation to avoid commercial and contractual obligations to using threats and litigation in conducting the US foreign and trade policy. Especially as to policies pertaining to the World Trade Organization and the US–China trade relations. His weaponization of tariffs and economic sanctions is now being wielded as a principal tool of the US foreign policy for the first time since the early 1930s.

President Trump has, for the first time in the US trade history, aggressively redefined the US trade policy as a supporting actor in the US national security policy. His presidential actions have involved a broad array of legislation, such as trade sanctions and export controls. Most astonishing is that President Trump has imposed trade restrictions by relying upon unilateral findings of national security risks or the existence of national emergencies. We are now at a point where federal courts in the US have been asked to review the validity of presidential trade actions, specifically the central legality of the broad delegation of congressional trade authority over the last 75 years. I predict that the federal courts will uphold the separation of powers in the face of the outrageous and unprecedented onslaught of presidential tariff and trade actions by a president relying upon dubious claims of national security and national emergency.

This article discusses American Institute for International Steel v. the United States, which is pending in the little-known United States Court of International Trade in New York. It involves an attempt to declare that the US legislation delegating authority to the president to impose trade restrictions is an unconstitutional delegation of legislative authority. A loss would legally curtail the president’s discretionary power to use national security as a reason to impose punitive measures against trading partners. The article identifies legal trends, where this case fits into the trade policy debates, and why it is so important. The article concludes that domestic US litigation in 2019 may well have a tremendous impact on US law and the global trading system. Many in the domestic and international trading communities (as well as those in the foreign policy and national security communities) are waiting for the results of this little-known steel litigation.

With President Trump’s recent imposition of USD 34 billion in new tariffs on imports from China and China’s prompt retaliation, the US is now in its biggest trade war with China and other countries since the 1930s. President Trump’s policies focusing on threats, trade deficits and bilateral trade, as well as the movement away from the postwar international system, have been historical aberrations since 1945. The US trade diplomacy ought to concentrate on building coalitions and viable proposals for addressing trade issues, including those concerning the World Trade Organization rule-making and dispute resolution. This would help to ensure a rules-based trading system.

United States litigation against China in the WTO will be ground zero for the new Trump administration’s aggressive trade policy. Five important facts must be highlighted to better understand the likely actions of the Trump administration. First, heightened judicial advocacy within the WTO will be consistent with both the Bush and Obama administrations’ aggressive use of the WTO’s dispute settlement system. Second, international judicial activism is squarely within the context of unfolding historical changes in international relations. Third, China hawks in the Trump administration will be competing with a number of countervailing forces in the White House, throughout the administration, and in the federal courts. Fourth, the US Congress has the exclusive authority to regulate global trade. However, much of this exclusive authority has been delegated to the president. Fifth, Trump considers trade as a zero-sum transaction, with a focus on the bottom line, to the exclusion of all else.