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.

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.