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.

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.