The U.S. Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations,” but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.
This Article makes three contributions. First, we analyze the development of a trade administrative state charged with managing two sets of broad delegations: to liberalize trade, on the one hand, and to restrict it in the name of “economic security” when the executive deems necessary. Second, we document the way in which the executive branch in recent presidential administrations of both parties has defended those administrations’ trade policies in court by arguing that the president’s independent constitutional powers over (noncommercial) foreign affairs give him license to exercise power over commerce beyond that delegated by Congress, or that congressional delegations should be construed in his favor. The courts, for their part, have often accepted these claims either directly or indirectly.
Third, we propose three statutory reforms that Congress could pass to restore balance to the branches’ regulation of foreign commerce: (1) Congress should sunset the president’s imposition of tariffs or other trade restrictions pursuant to economic security statutes after 90 or 180 days without the possibility of renewal unless Congress acts; (2) Congress should prohibit the executive branch from relying on any international agreement as the legal basis under which any good or service is imported into the United States, exported from the United States, or regulated while in the United States, unless Congress has either explicitly authorized the agreement in advance or approved it after its conclusion; and (3) Congress should eliminate the Federal Circuit’s exclusive jurisdiction over appeals in most trade cases.