January 8, 2018 12:44PM

Distilling the Trade Policy Signal from the Protectionist Noise

It is not surprising that so many Americans believe President Trump has spent the past year erecting tariff walls around the United States. From Trump’s bombastic, anti-trade rhetoric to media’s and social media’s conflation of that rhetoric with real protectionist actions, hardly a day has passed without publication of an analysis or editorial about how especially protectionist this administration has been. The facts are quite different.

Despite promising 45 percent duties on imports from China, 35 percent duties on re-imports from Mexico, tighter restrictions to limit access to U.S. government procurement markets to U.S. firms and workers, requirements that oil pipeline builders use only American-made steel, and more, the Trump administration has not undertaken any of those actions. There has been no discretionary protectionism imposed by President Trump. None. Not yet anyway.

Certainly, President Trump’s instincts are protectionist. He’s already inflicted incalculable damage by withdrawing the United States from the Trans-Pacific Partnership, playing loose with his aggrandized sense of U.S. indispensability to the trading system, and deliberately throwing sand in the gears of the World Trade Organization’s Dispute Settlement Body. His view of trade as a zero-sum contest played between national monoliths (i.e., Team America vs. Team China), where winning means achieving a trade surplus by way of policies that maximize exports and minimize imports, certainly provides fertile ground for protectionism to take root and flourish. But when it comes to actually imposing tariffs or other trade restrictions, so far Trump has been remarkably circumspect. Why?

First of all, the president’s trade policy actions are constrained legally, politically, and practically. The U.S. Constitution gives Congress, not the president, authority to regulate foreign trade. However, at various points and for various reasons over the past century, Congress delegated—through legislation that became statute—some of its authority to the president. For example, the president can impose tariffs without need of congressional action or consent under several different laws.

Since Trump took office, his administration has initiated investigations under five different statutes: Section 201 of the Trade Act of 1974 (i.e., the “Safeguards” Law); Section 301 of the Trade Act of 1974; Section 232 of the Trade Expansion Act of 1962; the Antidumping Law; and the Countervailing Duty Law. Under each of those laws, certain conditions must be met before restrictions can be imposed. Determining whether those conditions are met normally involves an investigation subject to formal procedures and statutory or regulatory timetables. And, if and once imposed, those tariffs are generally time-limited and usually subject to judicial review. So, while the president has conditional authority to raise tariffs, he does not have carte blanche, which seems to be a popular misconception.

Second, tariffs may benefit the protected industry temporarily, but they usually impose financial burdens on domestic producers in downstream industries. There are inevitably trade-offs to consider, with economic and political implications. Thus, while the president can puff out his chest and direct the public’s attention to the tariffs he imposed to help steel producers or solar cell manufacturers, for example, those actions exact direct and indirect costs on companies and workers in steel-using industries and the solar panel producing and installing industries, respectively. In many of the pending trade cases, workers in the downstream industries that will bear the brunt make up Trump’s base of political support.

Third, while national governments are permitted to resort to temporary protectionist measures under certain circumstances without violating the rules of the global trading system, in other circumstances trade protection measures can lead to authorized retaliation against U.S. exporting interests. Trump may like to talk tough, but will he really want to impose measures that could hurt the economy?

Certainly, 2018 will offer more opportunities than previous years for protectionist measures. But so far, despite the media frenzy, Trump has been restrained.