National Security Tariffs : A Threat to Effective Trade Policy

International trade policy in the United States until 1934 was determined by a Congress that represented the interests of diverse and changing domestic production. Southern agriculture pursued free trade policies to enable access to foreign markets for their goods, while Northern industry sought protection against imports that would stymie their nascent development. By 1934, it became clear that trade policy needed to be streamlined and accelerated to address the rapidly changing trade landscape. Congress delegated on a temporary basis its power to regulate trade, giving the President an opportunity to manage trade policy. Since the first delegation, Presidents used this power to pursue more open trade, leading to phenomenal domestic economic growth, vast expansion of global trade, and a more peaceful world. This policy has been turned on its head since 2018 when the Trump Administration began using this delegated authority not in the pursuit of free trade and democracy, but rather to solicit political support from certain domestic industries and to punish countries that he believes are behaving unfairly. Much of this new approach to trade is founded upon the national security exception present in U.S. trade law.In this paper, I argue that the national security exception created by the 1962 Trade Expansion Act, during the Cold War, is meant to be extraordinarily narrow and rarely used and that any broad application of this exception would likely compromise the world trade system altogether. I suggest that Congress, where trade policy power lies, should reassert control over trade policy and guide the President's hand in the pursuit of beneficial economic goals for the United States as a whole. I will begin this paper with a historical exploration of trade policy through the lens of protective tariffs. I will then emphasize the development of the national security exception in domestic trade law, paying special attention to the most recent iteration of this exception being applied today. I will then compare this national security exception in domestic law to the essential security exception found in international trade law to better understand its meaning and application on a global scale. Finally, I will review domestic case-law and legislation related to the delegation of trade policy-making authority to the President and argue how this power is being abused by the Trump Administration and what should be done to change that