By: Anthony Bjelke
Many lawyers outside the core of international trade practice have recently become more familiar with Section 232 of the Trade Expansion Act of 1962. Over the course of the past year, the President has utilized this authority to impose tariffs for a number of products, starting with steel and aluminum. A major question raised by these actions, from the perspective of more traditional national security practitioners is: what is the definition of national security in this field? Defining national security is a long running passion of those in the field, indeed the first articlein the National Security Law Brief for which I am now writing was questioning whether, from a pedagogical perspective, “National Security Law” exists as a sui generis body of law.[1]
Definitionally, there is little guidance in the international trade field as to what “national security” really means. The two main sources of authority for a President to impose national security related tariffs are 1) the domestic statutory authority under Section 232, and 2) the treaty establishing the World Trade Organization. Beginning with the domestic authority, the procedures for imposing tariffs is a two-step process, beginning with a report by the Secretary of Commerce—examining whether there is a national security necessity for imposing new duties under Section 232(b)—and then the President must determine whether to concur with the Secretary’s assessment, and then determine the nature of the duties to be imposed under Section 232(c). The Section does not explicitly outline factors that the Secretary should consider but does provide that the Department of Defense as well as other “appropriate officers of the United States,” should be consulted in making such determinations.
The international law grant of authority for national security tariffs comes in the form of an exception to basic World Trade Organization prohibitions on tariffs without observing WTO procedures. The provision, Article XXI of the General Agreement on Trade and Tariffs (GATT), provides that the agreement will not “prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests.” This provision does set forth some specific areas which are considered related to such “essential security interests” which include 1) nuclear materials, 2) arms, ammunition, the implements of war, or goods “directly or indirectly” related to maintaining the “military establishment,” and 3) actions taken during war or other emergencies. The “direct or indirect” language does suggest a fairly broad conception of what the WTO will consider to be done in a state’s essential security interest. This is further bolstered by the fact that the decision of whether a particular tariff falls within the scope of Article XXI lies with the state asserting the right to impose such tariffs.
The “self-judging” nature of these provisions has no real formal limit. The understanding at the time was that rather than imposing formal limits on this power, that the “atmosphere inside the [GATT]” would be sufficient to prevent abuses of this power. The reliance on countries to act in good faith has generally been effective, with open international trade being incentive enough to not abuse this broad provision.
This cursory review of the domestic and international authority for the imposition of national security related tariffs hopefully conveys the fact that as currently constructed, the only real checks on presidential authority in this sphere from an international law standpoint are essentially akin to economic mutually assured destruction, whereby abuses of this power would beget other states responding by abusing the power themselves. What should also be made plain by this review is that there is no clear definition of “national security” in this field. To be sure, there are certain clear elements of international trade which definitely fall under the national security umbrella—such as weapons, ammunition, and other instruments of war. There is, however, no clear outer limit of this definition. Historical practice on the domestic front shows that certain products—most notably steel in the context of the Supreme Court’s landmark Youngstown Sheet and Tube Co. v. Sawyer decision—have long been considered to be related to national security.
Presidential authority in this field is further bolstered by the less discussed, yet potentially more significant subsection (a) of Section 232, which allows the President to prevent the lowering or elimination of tariffs if the President finds that to lower or eliminate the tariff would harm national security.
While currently formidable, presidential authority in this area is a mile wide and only several feet deep. The basic authority for the imposition of all trade duties lies within Article I Section 8 of the U.S. Constitution, which vests such power in Congress. Congressional delegation of this power under the Trade Expansion Act could as easily be circumscribed or completely retrieved by Congress. An example of an attempt to do so is the currently pending Global Trade Accountability Act of 2018, introduced by Representative Warren Davidson (R-OH). This bill would require unilateral trade actions taken by the president—including those under Section 232—to be approved by congress within 90 days of the imposition. Such actions represent the only real legal method for the curtailment of presidential action short of wholesale congressional reclamation of trade powers, and the introduction of a bill more clearly defining “national security” is the only real way to answer the question this post poses, as fundamentally unsatisfying as that is.
[1]That article was written by Professor Steven I. Vladeck, now of the University of Texas at Austin School of Law. While he was a professor at American University, Professor Vladeck taught a summer seminar on National Security Law, which I sat in on as an undergraduate research assistant at the Washington College of Law. This seminar was foundational in my own national security interest, and so five years later, I quickly doff my cap to him and his influence on my interest in National Security Law.