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Our Trade Law System

Posted by on Friday, June 5, 2020 in En Banc, Responses.

Kathleen Claussen | 73 Vand. L. Rev. En Banc 195 (2020) |

In Misaligned Lawmaking, Timothy Meyer identifies a major problem in U.S. trade law design. Professor Meyer argues that there is a misalignment between trade liberalization laws—laws that enable the executive branch to lower trade barriers with other countries—and trade adjustment assistance laws—laws that provide financial help to workers displaced by competition with new imports. This misalignment is the result of differences in the processes, nature, timing, and perceived impact of these two sets of laws, which were made separate beginning in 1962. But all is not lost. The present moment, Professor Meyer tells us, is a critical juncture for correcting this misalignment.

I fully agree with Professor Meyer in both respects. Trade lawmaking in the United States suffers from some serious misalignments, and not just with respect to trade adjustment assistance. Those misalignments are largely the product of complexities in our separation of trade law powers. Congress has the constitutional prerogative on foreign commerce but is ill-equipped to manage everyday trade decisions and negotiations with foreign trading partners. Consequently, our trade law walks a delicate line between flexible programmatic delegations to the executive and congressional maintenance of authority. Crafting that relationship effectively is a task of immense proportions. Our current approach is functional but flawed.

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Link to Meyer’s Article