The Trump administration has raised tariffs under a variety of
pretenses, but one of the most controversial has been the
invocation of national security under Section 232 of the Trade
Expansion Act of 1962. So far, only steel and aluminum imports have
been assessed tariffs under this statute, but the administration
soon may announce tariffs on automobiles and automobile parts, as
well as on uranium and titanium sponges.
The administration has already received some strong pushback
domestically to the steel and aluminum tariffs. There have been
federal court challenges both to the tariff measures and to the
constitutionality of the Section 232 statute itself. Meanwhile,
Congress is considering various bills to rein in the
president’s authority in this regard (Congress delegated some
of its constitutional power over tariffs via the Section 232
statute and could take some of it back through new legislation).
Congressional action would be the simplest and most straightforward
way to restrain the Trump administration’s trade
restrictions, but the political hurdle of convincing a Republican
Senate to do this appears to be significant.
Beyond the domestic aspects of Section 232, there is also an
international crisis over the Trump administration’s
invocation of national security to justify tariffs. Many
governments consider these actions to be in bad faith and a threat
to the world trading system. Trade agreements involve a carefully
balanced set of commitments to lower tariffs and other trade
barriers. If countries can adopt protectionist measures simply by
invoking national security, the trade liberalization achieved
through such agreements may start to unravel.
To preserve the system, governments should consider new
international trade rules to address trade barriers that have been
justified as national security measures. The original drafters of
the national security provisions of trade agreements recognized the
sensitivity of this issue and hoped for the good-faith application
of such measures. But good faith seems to be disappearing from the
trade policy world, and additional rules may be needed. In this
regard, rules that allow for national security trade barriers but
that encourage trade liberalization for other products and services
as compensation could prevent a spiral of protectionism and
maintain the stability of the trading system.
History of the GATT/WTO Security Exception
From the earliest proposals for an international trade
organization, it was clear that the General Agreement on Tariffs
and Trade (GATT) would include some sort of exception for security
concerns. The specific wording evolved during negotiations, but in
the final text of the GATT, Article XXI, titled “Security
Exception,” explained that nothing in the agreement shall
prevent a government from “taking any action which it
considers necessary for the protection of its essential security
interests.” When the WTO was created and trade rules were
expanded to cover trade in services and intellectual property, the
security exception was included for those areas as
Over most of the history of the GATT/WTO, governments have, for
the most part, been careful to invoke national security only when
it was genuinely applicable. The original negotiators recognized
the political difficulties that would arise and the potential for
abuse, and governments presumably kept these concerns in mind over
the ensuing decades.2 In one of the most comprehensive
articles on this exception, written in 2011, legal scholar Roger
Alford noted, “Member States have exercised good faith in
complying with their trade obligations” as “invocations
of the security exception have only been challenged a handful of
times, and those challenges have never resulted in a binding
GATT/WTO decision.” Alford recounted the few instances when
tensions over Article XXI arose, including over export controls for
Eastern Europe during the Cold War, an embargo of Argentina led by
the European Community related to the Falklands War, and the U.S.
embargoes on Nicaragua and Cuba.3 As
a result of governments’ good-faith efforts, the GATT/WTO
system has been able to avoid both major conflict over this issue
and having to decide what Article XXI actually means.
The long period of harmony over Article XXI seems to be ending.
A WTO dispute between Ukraine and Russia has provided the first WTO
panel interpretation of the provision, but the more serious
controversy will arise over the U.S. tariffs recently imposed by
the Trump administration on imports of steel and aluminum.
The Trump Administration’s Aggressive Use of Section
Overview of Section 232
Section 232 of the Trade Expansion Act of 1962 gives the
president the authority to adjust imports on national security
grounds.4 A decision to impose restrictions
is based on an investigation by the Department of Commerce, which
includes consultations with the Secretary of Defense. The
Department of Commerce investigation can be self-initiated, or it
can take place at the request of any U.S. department or agency or
at the request of the domestic industry that stands to benefit from
During a Section 232 investigation, the Department of Commerce
considers a number of factors, including domestic production needed
for national defense requirements, the capacity of domestic
industries to meet such requirements, and how the importation of
goods affects such industries and affects the capacity of the
United States to meet national security requirements. The
department must also take into consideration the impact of foreign
competition on the economic welfare of individual domestic
industries. These factors make clear that the national security
justification under the statute is tied closely to economic
The statute provides that the investigation shall last no longer
than 270 days, and the Secretary of Commerce is required to submit
a report to the president with recommendations of action or
inaction.5 Within 90 days of receiving the
report, the president will make a decision, and may either follow
the recommendations of the Department of Commerce or take other
actions.6 Generally speaking, these actions
will be in the form of tariffs or quotas.
To date, there have been 31 Section 232 investigations. In 16
cases, the Department of Commerce determined that the goods did not
threaten to impair national security. In 11 cases, the Department
of Commerce found that the imported goods threatened to impair
national security and provided recommendations to the president.
(In 8 of these 11 cases, the president took action.) One case was
terminated at the petitioner’s request before a conclusion
was reached. Three investigations are still pending.7
The first 24 cases occurred from 1963 to 1994. After that, the
mechanism fell into disuse. There was a case brought in 1999 and
one in 2001, but then nothing for 16 years. Since President Trump
took office in January 2017, there have been five Section 232
investigations, on steel, aluminum, autos and auto parts, uranium,
and titanium sponges. The Trump administration’s tariffs on
steel and aluminum were the first and second times that trade
restrictions have been imposed under this law for a product other
than oil or petroleum.8 In the two years since
Trump’s election, his administration has clearly tried to
expand the scope of this previously narrow remedy.
Both Congress and private actors have tried to push back against
the administration’s aggressive use of Section 232. Multiple
bills are under consideration in Congress, and court challenges
have been initiated against specific tariffs and against the
Section 232 statute itself.9
These efforts could lead to a more appropriate allocation of powers
between Congress and the president on trade and national security
issues. However, as will be seen later, they would not necessarily
address the international aspects of trade restrictions that are
based on national security, which can arise even without an
executive branch that is willing to push the boundaries of the law
in order to pursue protectionist policies.
The Section 232 Actions on Steel and Aluminum
Trump’s enthusiasm for heavy manufacturing in general, and
for steel and aluminum in particular, was evident during his
election campaign. “We are going to put American steel and
aluminum back into the backbone of our country,” Trump vowed
at a 2016 campaign rally in a former steel town in
Pennsylvania.10 Steel and aluminum were at the
center of his America First trade policy.
After Trump took office, it quickly became clear that the
administration might impose broad tariffs on steel and aluminum
imports, using Section 232 as the vehicle. In April 2017, Trump
instructed the Department of Commerce to initiate investigations on
the national security threat posed by steel and aluminum
imports.11 The department immediately
initiated Section 232 investigations on steel and aluminum and
sought public comments.12
In January 2018, the department issued its reports. It concluded
that the importation of certain types of steel and aluminum
products threatened to impair the national security of the United
States and recommended that the president reduce imports through
tariffs or quotas, suggesting three options each for steel and
aluminum. For steel it recommended a tariff of 24 percent on all
steel imports; a tariff of 53 percent or more on steel imports from
12 countries, plus a quota for all other nations that equaled their
exports to the United States in 2017; or a quota of 63 percent of
each country’s 2017 steel exports to the United States. For
aluminum it recommended a tariff of 7.7 percent on all aluminum
imports; a tariff of 23.6 percent on aluminum imports from five
countries, plus a quota for all other nations that equaled their
exports to the United States in 2017; or a quota of 86.7 percent of
each country’s 2017 aluminum exports to the United
On March 8, 2018, Trump issued two proclamations that imposed a
25 percent tariff on steel products and a 10 percent tariff on
aluminum products; they were set to take effect on March 23, 2018.
Some countries negotiated export quotas to avoid the tariffs, and
others received temporary tariff exemptions, but as of June 1,
2018, the tariffs were being imposed on most U.S. trading
partners.14 The tariffs have been estimated
to apply to $44.9 billion worth of steel and aluminum
In terms of the actual purpose of the actions, there were
reasons to doubt the claimed national security justification, as
the Defense Department was skeptical of the value of the tariffs.
Then secretary of defense James Mattis expressed concern that
tariffs would sabotage relationships with key allies.16
He also acknowledged that the military’s requirements for
steel and aluminum could be satisfied with about 3 percent of
domestic production, casting doubt on the concerns about the impact
of imports and on the justification of the Section 232
Beyond national security, a number of explanations have been
offered by Trump to justify the tariffs. At times, he has
emphasized that the tariffs would protect the U.S. economy and
jobs.18 He has also linked the tariffs
to trade negotiations, suggesting that the tariffs have forced U.S.
trading partners to the negotiating table.19 A
further explanation is that the tariffs are being used to combat
unfair trade practices.20
Ultimately, we do not know the true motivation of Trump for these
tariffs, and views may vary within the administration. But it is
worth noting that Trump often makes it clear that he simply likes
Many U.S. trading partners responded quickly to the imposition
of the Section 232 tariffs by imposing retaliatory tariffs. Their
argument was that the Section 232 measures are not really about
national security but are in fact more like a safeguard measure
designed to protect domestic industries from injury caused by
imports. As a result, the special rebalancing provisions of the
Safeguards Agreement (discussed in more detail below) apply here
and justify immediate retaliation.22
In addition to the retaliatory tariffs, from April to August
2018 nine governments requested consultations at the WTO, which is
the first step in WTO litigation. From November 2018 to January
2019, dispute settlement panels were established to hear the cases.
In late January, the panels were appointed, and litigation will
The complainants’ legal claims are fairly straightforward,
focusing on GATT Article I (MFN treatment) and GATT Article II
(tariff commitments). As discussed in the next section, the U.S.
defense constitutes a serious threat to the system, as the United
States has invoked GATT Article XXI. As repeatedly stated by the
United States at the relevant meetings of the WTO’s Dispute
Settlement Body (DSB), in the U.S. view, after Article XXI is
invoked the panel cannot even hear the case.24
While the steel and aluminum tariffs have caused great friction,
an even bigger test of Section 232 lies ahead: the Department of
Commerce has completed a Section 232 investigation on imports of
automobiles and auto parts, and Trump is considering whether to
take action against imports of these products based on the
allegation that they are a national security threat.25
The value of trade potentially affected would be much larger than
that of steel and aluminum. It is estimated that the Section 232
auto tariffs could cover more than $200 billion of auto and auto
parts imports.26Some U.S. trading partners have
already warned that they will retaliate if tariffs are
The Threat to the WTO Dispute Settlement Mechanism
The administration’s use of Section 232 presents a
challenge to the WTO dispute settlement system, and even to the WTO
itself, because of the invocation of GATT Article XXI. WTO dispute
settlement has had success over the years in adjudicating core
trade issues such as ordinary tariffs, trade remedy tariffs, and
regulatory trade barriers. It cannot induce governments to remove
the measures that violate WTO rules in every case, but it has a
fairly good record here. However, there are limits to what can be
achieved, and it is clear that some sensitive measures cannot be
dealt with through WTO litigation. National security measures
pretty clearly fall into this category, and thus litigation of
these measures has been carefully avoided over the years. But after
decades of restraint over litigating the scope and meaning of
Article XXI, the Section 232 measures threaten to undermine the
system by creating a WTO litigation outcome that either takes the
U.S. view and opens a Pandora’s box involving a proliferation
of invocations of national security as a basis for trade
restrictions, or rejects the U.S. view and risks the Trump
administration pulling out of the WTO.
The problem with applying and interpreting Article XXI in these
cases is part legal and part political. In terms of the law, there
is no simple answer on the provision’s meaning. The use of
the word “considers” in subparagraphs (a) and (b) of
Article XXI gives the provision a self-judging nature, but the
question is how far to take this. Alford describes the interpretive
possibilities as follows:
According to one interpretation, a Member State can decide for
itself whether a measure is essential to its security interests and
relates to one of the enumerated conditions. Another interpretation
would recognize a Member State’s prerogative to determine for
itself whether a security exception is applicable, but would impose
a good faith standard that is subject to judicial review. Under a
third interpretation, a Member State can decide for itself whether
“it considers” a measure to be “necessary for the
protection of its essential security interests,” but the
enumerated conditions are subject to judicial review.28
Questions about the scope of the exception were raised during
the GATT negotiations, but they are not easy to resolve as an
This legal uncertainty is reflected in a political divide. Two
leading powers, the United States and Russia, take one view of the
provision’s interpretation, while most of the WTO membership
takes another (as made clear by the parties’ submissions in a
recently decided WTO case called Russia—Traffic in
Transit). On one side, the United States and Russia argued
that the WTO security provisions are nonjusticiable, meaning it is
left entirely to governments to decide whether to impose trade
restrictions for this purpose. In their view, once a party has
invoked Article XXI, the WTO panel can no longer hear the
case.30 In contrast, other members
believe that WTO panels must engage in some degree of scrutiny of
measures for which Article XXI has been invoked.31
The WTO panel in the Russia—Traffic in
Transit case recently provided the first word on the
issue of interpretation of GATT Article XXI, taking the view that
the provision is not entirely self-judging and leaving room for
some panel scrutiny.32 Other ongoing WTO panels that
are hearing cases on similar issues may approach the interpretation
of this provision similarly, but it is possible that there will be
some variation in approaches. The Russia—Traffic in
Transit panel report was not appealed, which means that the
Appellate Body has not considered the issue. At some point in the
future, the Appellate Body may provide additional clarification.
The state of the Appellate Body reappointment process adds some
complexity here. Currently, the United States is blocking the
appointment of new Appellate Body judges, which has created a
backlog of appeals and the possibility that by the end of the year
there will not be enough people on the Appellate Body to hear
However, a problem larger than figuring out the proper
interpretation of the provision looms: if a WTO panel or the
Appellate Body were to rule that Article XXI did not justify the
U.S. steel and aluminum tariffs, would the United States comply
with the ruling? Given the U.S. rhetoric on the issue, it seems
unlikely.34 (Worse yet, the Trump
administration may pull out of the WTO. It has long complained that
the organization’s dispute-settlement rulings are unfair to
the United States.)35 In the event of noncompliance,
the only remedy is for the DSB to authorize a suspension of
concessions under which the complainants could impose tariffs or
other retaliation of their own, but most of the complainants have
already retaliated, relying on the legal theory that the U.S.
measures are safeguard measures and that rebalancing under
Safeguards Agreement Article 8 is permitted
immediately.36 As a matter of law, such an
assertion has little basis and further undermines confidence in the
system.37 Responding to violations of the
rules with other violations of the rules leaves everyone wondering
if the rules have any value.
As a result, it is unclear how WTO dispute settlement can help
in this case. Trump’s Section 232 actions called attention to
the possibility of a broad national security loophole and triggered
a response that could be characterized as abuse of the
safeguards-rebalancing rules. In this environment there is a real
worry that the system will no longer function.
While rebalancing as practiced by U.S. trading partners here may
fail to solve the problem, the concept may nevertheless offer a way
forward for this kind of dispute. Adapting it for use directly in
the context of national security could provide a solution to the
impasse. An attempt to expand the existing safeguard rules for
rebalancing beyond their scope undermines the rule of law, but a
new rebalancing regime designed specifically for the national
security context could help restore it.
Rebalancing under the Safeguards Agreement
The idea of some type of rebalancing in response to safeguard
measures originates in the reciprocal trade agreements negotiated
by the United States and other countries in the 1930s. The first
modern safeguard provision appeared in the United States-Mexico
Reciprocal Trade Agreement of 1942. It provides that when a country
will “withdraw or modify a concession” as a safeguard
to protect domestic industry, “it shall give notice in
writing to the Government of the other country as far in advance as
may be practicable and shall afford such other Government an
opportunity to consult with it in respect of the proposed
action”; if no agreement is reached, the other government
“shall be free within thirty days after such action is taken
to terminate this Agreement in whole or in part on thirty
days’ written notice.”38
The consultations provide an opportunity for the parties to reach
agreement on compensation, for example, lowering tariffs on other
This idea was carried over to the GATT negotiations, where the
United States proposed the initial text. At this point,
“terminat[ion]” was replaced with “suspension of
obligations or concessions” as the appropriate response when
compensation could not be agreed on.40
The provision was refined further during the negotiations, and the
London Draft of the GATT refers to suspension of
“substantially equivalent obligations or
concessions.”41 In the final version of the
GATT, the relevant provisions appear in Article XIX, paragraphs 2
Practice under the GATT suggests that compensation was used
extensively early on but tapered off over the years. As of 1987,
there had been 20 instances of agreement or offers of compensation
(10 cases during 1950-1959, 8 in 1960-1969, 1 in 1970-1979, and 1
During the Uruguay Round of trade negotiations, the specific
requirements for rebalancing were elaborated further in the
Safeguards Agreement. Under Article 8 of the agreement, a
government proposing to apply a safeguard measure or seeking an
extension of one shall try to maintain a substantially equivalent
level of concessions and other obligations, and in order to achieve
this objective, “the Members concerned may agree on any
adequate means of trade compensation for the adverse effects of the
measure on their trade.”44
If compensation cannot be agreed on, retaliation is permitted
almost immediately in cases where the justification for the
safeguard measure is based only on a relative increase in imports,
but it has to wait three years if there has been an absolute
increase in imports.45
Why Rebalance at All?
The basic idea behind rebalancing is as follows. When countries
negotiate trade agreements, the concessions and other obligations
they take on—including commitments to reduce tariffs,
commitments to avoid certain protectionist domestic laws, and
various other requirements—are part of an overall balance.
Roughly speaking, each side accepts a particular degree of
liberalization or other obligations, which constitutes the balance
that was agreed to.
There are times when things get out of balance, however. One
example is when a government that is a party to the agreement
believes that another party has taken actions that violate the
agreement. After adjudication of the dispute, if a violation is
found, the offending government can remove or modify the measure or
offer some sort of compensation. If it does neither, it will be
subject to trade retaliation by the complaining government in an
amount equivalent to the effect of the violation. In this way,
balance is restored.
In some circumstances, adjudication is not first required. In
the context of safeguards, the very nature of the measure indicates
that the balance has been upset. If a government imposes a tariff
or quota as a safeguard measure, with rare exceptions that measure
will constitute withdrawal or modification of a tariff concession
or breach of the obligation not to impose quotas. When that
happens, the balance needs to be restored. Ideally, rebalancing
would take place through compensation in the form of trade
liberalization in other areas by the government imposing the
safeguard measure. However, when compensation cannot be worked out,
the affected countries are allowed to raise their own tariffs in an
equivalent amount. Such a scenario may not be ideal, but it acts as
a deterrent against the abuse of safeguard measures.
A Rebalancing Proposal for National Security
Under WTO rules, governments may impose tariffs and other trade
restrictions beyond what was agreed for a variety of reasons,
including for temporary protection as safeguards; as a response to
dumping or subsidies; for environmental, public morals, or public
health reasons; or in support of national security. Whether to make
rebalancing available is a political and policy decision.
Traditionally, immediate rebalancing has been available only for
safeguards, but the case could be made for rebalancing in other
In the national security context, there are several arguments
for allowing a similar kind of rebalancing. First, retaliation is
already happening. In the case of the Section 232 tariffs, as noted
above, a number of governments have declared the measures to be
safeguard measures and have applied retaliatory tariffs.
Instituting rebalancing rules in these cases would provide an
opportunity to replace retaliatory tariffs with compensatory
liberalization, which is impossible with the current retaliatory
tariffs as the United States does not accept that the safeguards
rules even apply here. In addition, in circumstances when
compensation is impossible, rebalancing would formalize the
retaliation process and make it more orderly, limiting the
possibility of a trade war that spirals out of control.
Second, as explained earlier, WTO dispute settlement probably
cannot help here. A ruling that the Section 232 measures violate
GATT obligations and are not justified under Article XXI is
unlikely to make the United States comply, and retaliation is
already being imposed by many countries even without
Third, national security measures are like safeguard measures in
the sense that there is often no debate about their consistency
with the rules. It is acknowledged that they violate the rules, and
national security is offered as the excuse. This makes national
security more like safeguard measures than, say, environmental
regulations, where the responding party generally argues that the
regulation is not in violation.
Finally, rebalancing would afford an important benefit by
limiting the abuse of the provisions. A full WTO dispute proceeding
typically lasts from two to four years, depending on the complexity
of the case. National security measures are particularly
susceptible to abuse due to the vagueness of the national security
exception’s language, and rebalancing would reduce the time
that governments can impose import restrictions for national
security purposes without any response from trading partners.
Rebalancing of national security measures can draw on principles
from the safeguards arena but would have its own characteristics
and a different focus.
One of the primary goals of national security rebalancing would
be transparency. As things stand now, governments have the ability
to impose trade restrictions for protectionist purposes but can
later invoke Article XXI during litigation. It would be preferable
to have all national security trade restrictions notified as such
immediately to foster proper debate and discussion. Bringing these
cases to light early, and having WTO members think carefully about
the proper scope of the exception, would be of great value. To this
end, the national security rebalancing rules should encourage
notification and explanation of national security tariffs by
offering more time before rebalancing can be applied when
restrictions have been notified. For example, rebalancing can be
immediate when an Article XXI justification is invoked as part of
litigation when no notification or explanation has been given, but
must wait six months to a year when notification has been
To help oversee the discussions, a WTO Committee on National
Security Measures should be formed to examine these measures and
any proposed rebalancing. Members should meet regularly to consider
the practice in this area.
Compensation is the preferred approach to rebalancing. Ideally,
governments that impose tariffs or other restrictions on specific
products for national security purposes would offer to reduce
tariffs or restrictions on other products or services. Adding
services as a compensation option may be significant. One of the
reasons compensation has worked less well in recent years in the
safeguards context is that as tariff levels have decreased, it has
become harder for countries invoking safeguards to find alternative
products on which they could give meaningful
concessions.46 Adding services to the mix would
open a wide range of compensation possibilities, especially
considering how few services commitments most countries have made
and thus how much potential exists for additional
Negotiations over the extent of the compensation will never be
easy, but they can be facilitated through carefully designed rules.
For example, there could be a requirement that in order to impose
an import restriction for national security reasons, a government
must identify three products or services for which it would
consider negotiating compensatory liberalization.
When compensation cannot be agreed upon, however, retaliation
designed to restore balance is a possibility. To prevent abuse, a
quick arbitration process should be established for determining
whether any retaliation is commensurate with the economic impact of
the national security restrictions in question.
Not every dispute can be resolved through litigation. U.S.
constitutional law has the political question doctrine. A similar
principle may be appropriate for certain international trade
The proposals outlined here are designed to help provide a
political solution to disputes over trade restrictions based on
national security. They are fairly straightforward as a policy
matter, although much more debate is needed.
The politics are more complicated, of course. The Trump
administration is the main party pushing the boundaries of national
security restrictions, so for the time being the United States is
unlikely to be open to any reforms. The views of a future U.S.
administration are uncertain but may not differ considerably from
the current position.
As a result, any hope for change may have to come from other
governments as they negotiate bilaterally, regionally, or on a
plurilateral basis with countries that are interested in pursuing
this idea. Governments that are concerned about the abuse of
national security measures can incorporate provisions along these
lines in agreements they sign that do not involve the United
States. In this way, the norm can spread, with the hope that its
usefulness will be demonstrated and with the aim of eventual
inclusion in a multilateral agreement.
1. See Article XIV bis,
General Agreement on Trade in Service, and Article 73, Agreement on
Trade-Related Aspects of Intellectual Property Rights.
2. Simon Lester,
“The Drafting History of GATT Article XXI: The U.S. View of
the Scope of the Security Exception,” International
Economic Law and Policy Blog, March 11, 2018; Simon Lester,
“The Drafting History of GATT Article XXI: Where Did
‘Considers’ Come From?,” International
Economic Law and Policy Blog, March 13, 2018.
3. Roger P. Alford,
“The Self-Judging WTO Security Exception,” Utah Law
Review 3 (2011): 697, 706-25. See also Tania Voon, “The
Security Exception in WTO Law: Entering a New Era,”
American Journal of International Law 113 (2019):
4. 19 U.S.C.
5. 19 U.S.C.
6. 19 U.S.C.
7. Congressional Research
Service, “Section 232 Investigations: Overview and Issues for
Congress,” April 2, 2019.
8. In addition, in a case
on machine tools that was initiated in 1983, a formal decision on
the Section 232 case was deferred, and the president “instead
sought voluntary restraint agreements starting in 1986 with leading
foreign suppliers and developed a domestic plan of programs to help
revitalize the industry.” Congressional Research Service,
“Section 232 Investigations: Overview and Issues for
Congress,” Table B-1, April 2, 2019.
9. Legislative proposals
aimed at restricting presidential power under Section 232 include
the Bicameral Congressional Trade Authority Act of 2019, sponsored
by Senator Pat Toomey and others (Bicameral Congressional Trade
Authority Act of 2019, S.287/H.R.940, 116th Cong. ); and the
Trade Security Act of 2019, sponsored by Senator Rob Portman and
others (Trade Security Act of 2019, S.365/H.R.1008, 116th Cong.
). With regard to the courts, the Swiss company Severstal
filed a case challenging the Section 232 steel tariffs, but after
the Court of International Trade rejected a motion for a temporary
restraining order, the parties filed a joint motion to dismiss.
Inside U.S. Trade, “CIT Judge Unconvinced Severstal Can
Succeed on Merits in 232 Challenge,” InsideTrade.com, April
5, 2018. In addition, the American Institute for International
Steel brought a case claiming that the Section 232 statute is
unconstitutional, which is currently pending before the Court of
International Trade. Inside U.S. Trade, “In Steel Case, CIT
Judges Probe Broad Executive Powers under Section 232,”
InsideTrade.com, December 21, 2018.
10. Susan Jones,
“Trump: ‘Put American Steel and Aluminum Back into the
Backbone of Our Country,’” CNSNews, June 29, 2016.
11. Administration of
Donald J. Trump, “Memorandum on Steel Imports and Threats to
National Security,” April 20, 2017; Administration of Donald
J. Trump, “Memorandum on Aluminum Imports and Threats to
National Security,” April 27, 2017.
12. Department of
Commerce, “Notice of Request for Public Comments and Public
Hearing on Section 232 National Security Investigation of Imports
of Steel,” 82 Fed. Reg. 19205, April 26, 2017; Department of
Commerce, “Notice of Request for Public Comments and Public
Hearing on Section 232 National Security Investigation of Imports
of Aluminum,” 82 Fed. Reg. 21509, May 9, 2017.
13. Office of Public
Affairs, U.S. Department of Commerce, “Secretary Ross
Releases Steel and Aluminum 232 Reports in Coordination with White
House,” press release, February 16, 2018.
14. Congressional Research
Service, “Section 232 Investigations: Overview and Issues for
Congress,” Table D-1, April 2, 2019.
15. Sherman Robinson et
al., “Trump’s Proposed Auto Tariffs Would Throw U.S.
Automakers and Workers under the Bus,” Peterson Institute
for International Economics, May 31, 2018.
16. Ellen Mitchell,
“Trump Tariffs Create Uncertainty for Pentagon,”
The Hill, March 11, 2018.
17. Mitchell, “Trump
Tariffs Create Uncertainty for Pentagon.”
18. Donald J. Trump
(@realDonaldTrump), “We must protect our country and our
workers. Our steel industry is in bad shape. IF YOU DON’T
HAVE STEEL, YOU DON’T HAVE A COUNTRY!,” Twitter post,
March 2, 2018, 5:01 a.m.
19. Andrew Mayeda,
“Trump Turns Steel Tariffs into NAFTA Bargaining Chip,”
Bloomberg.com, March 6, 2018.
20. A White House fact
sheet explained, “President Donald J. Trump is addressing
global overcapacity and unfair trade practices in the steel and
aluminum industries by putting in place a 25 percent tariff on
steel imports and 10 percent tariff on aluminum imports.”
White House, “President Donald J. Trump Is Addressing Unfair
Trade Practices That Threaten to Harm Our National Security,”
Fact Sheet, March 8, 2018.
21. Donald J. Trump
(@realDonaldTrump), “I am a Tariff Man. When people or
countries come in to raid the great wealth of our Nation, I want
them to pay for the privilege of doing so. It will always be the
best way to max out our economic power. We are right now taking in
$billions in Tariffs. MAKE AMERICA RICH AGAIN,” Twitter post,
December 4, 2018.
22. Canada imposed 10-25
percent tariffs on approximately $12.05 billion of U.S. exports.
Mexico imposed tariffs ranging from 7 to 25 percent on $3.52
billion of U.S. exports. The European Union imposed 10-25 percent
duties on $2.91 billion worth of U.S. products. China imposed 15-25
percent tariffs on $2.52 billion worth of U.S. products. Russia and
Turkey also imposed tariffs on selected U.S. products, ranging from
4 to 140 percent. See Congressional Research Service,
“Section 232 Investigations: Overview and Issues for
Congress,” April 2, 2019, figure 5; International Trade
Administration, “Current Foreign Retaliatory
23. Simon Lester,
“Panels Composed in the Section 232/Retaliation Cases,”
International Economic Law and Policy Blog, January 28,
24. World Trade
Organization, “Panels Established to Review U.S. Steel and
Aluminum Tariffs, Countermeasures on U.S. Imports,” November
25. David Lawder and David
Shepardson, “U.S. Agency Submits Auto Tariff Probe Report to
White House,” Reuters, February 17, 2019.
26. Robinson et al.,
“Trump’s Proposed Auto Tariffs Would Throw U.S.
Automakers and Workers under the Bus.”
27. Doug Palmer and Megan
Cassella, “U.S. Allies Warn of Retaliation If Trump Imposes
Auto Tariffs,” Politico, July 19, 2018.
28. Alford, “The
Self-Judging WTO Security Exception.”
29. Lester, “The
Drafting History of GATT Article XXI: The U.S. View of the Scope of
the Security Exception”; Lester, “The Drafting History
of GATT Article XXI: Where Did ‘Considers’ Come
From?”; Lester, “More GATT Article XXI Negotiating
History,” International Economic Law and Policy
Blog, May 1, 2018.
30. Russia states that
“neither the Panel nor the WTO as an institution has a
jurisdiction” over the dispute. Russia’s first written
submission, para. 7, cited in “European Union Third-Party
Written Submission, Russia—Measures Concerning Traffic in
Transit (DS512),” para. 10, November 8, 2017. Along the same
lines, the United States argues, “The text of Article XXI,
establishing that its invocation is non-justiciable, is supported
by the drafting history of Article XXI. In particular, certain
proposals from the United States during that process demonstrate
that the revisions to what became Article XXI reflect the intention
of the negotiators that the defence be self-judging, and not
subject to the same review as the general exceptions contained in
GATT 1994 Article XX.” “Responses of the United States
of America to Questions from the Panel and Russia to Third Parties,
Russia—Measures Concerning Traffic in Transit
(DS512),” para. 3, February 20, 2018.
31. For instance, the EU
argues that “Article XXI of GATT 1994 is a justiciable
provision and that its invocation by a defending party does not
have the effect of excluding the jurisdiction of a panel.”
“European Union Third-Party Written Submission,
Russia—Measures Concerning Traffic in Transit (DS512),”
para. 21, November 8, 2017; and Australia argues, “[T]his
deference to Russia does not preclude the Panel from undertaking
any review of Russia’s invocation of Article XXI(b)
or dispense with the Panel’s obligation to undertake an
objective assessment of the matter before it, including an
objective assessment of the facts of the case.”
“Australia’s Third-Party Executive Summary,
Russia—Measures Concerning Traffic in Transit (DS512),”
para. 30, February 27, 2018.
32. WTO Panel Report,
“Russia—Measures Concerning Traffic in Transit,”
WT/DS512/R, adopted April 26, 2019.
33. James Bacchus,
“How to Solve the WTO Judicial Crisis,” Cato
at Liberty (blog), August 6, 2018.
34. In a recent DSB
meeting, the United States reiterated that its invocation of
Article XXI should not be reviewed by the panel: “[A WTO
review] would undermine the legitimacy of the WTO’s dispute
settlement system and even the viability of the WTO as a
whole.” Inside U.S. Trade, “Azevêdo: Challenging U.S.
232 Tariffs at WTO a ‘Risky’ Strategy,”
InsideTrade.com, December 6, 2018.
35. Gina Chon,
“Trump’s Anti-WTO Rhetoric Hurts America First,”
Reuters.com, December 11, 2017.
36. For an overview of
rebalancing under the Safeguards Agreement, see Matthew R. Nicely
and David T. Hardin, “Article 8 of the WTO Safeguards
Agreement: Reforming the Right to Rebalance,” St.
John’s Journal of Legal Commentary 23 (2008): 699.
37. Simon Lester,
“How to Determine If a Measure Constitutes a Safeguard
Measure,” International Economic Law and Policy
Blog, August 15, 2018.
38. United States of
America and Mexico, Reciprocal Trade Agreement, article XI, para.
2, December 23, 1942, 57 Stat. 833 (1943), E.A.S. No. 311.
39. John Jackson,
World Trade and the Law of GATT (Charlottesville, VA:
Michie Company, 1969), p. 565.
40. Suggested Charter for
an International Trade Organization of the United Nations, article
29, para. 2, Publication 2598, Washington: Department of State.
41. London Draft of a
Charter for an International Trade Organization, article 34, para.
2, Report of the First Session of the Preparatory Committee, UN
Conference on Trade and Employment, UN Doc. E/PC/T/33 (Oct.
42. GATT, article XIX,
paras. 2 and 3, April 15, 1994, 1867 U.N.T.S. 187.
History of Article XIX and Its Place in GATT,” Background
Note by the Secretariat, MTN.GNG/NG9/W/7, para. 22, September 16,
1987; and GATT Analytical Index, p. 525.
44. Article 8, para. 1,
Agreement on Safeguards, April 15, 1994, WTO Agreement, Annex
45. Article 8, para. 3,
Agreement on Safeguards states, “The right of suspension
referred to in paragraph 2 shall not be exercised for the first
three years that a safeguard measure is in effect, provided that
the safeguard measure has been taken as a result of an absolute
increase in imports and that such a measure conforms to the
provisions of this Agreement.”
46. John Jackson, The
World Trading System (Cambridge, MA: MIT Press, 1994), p. 168;
Chad Bown and Meredith Crowley, “Safeguards in the World
Trade Organization,” February 2003. (“Although
compensation for safeguard measures was often negotiated in the
1960s and 1970s, as tariff rates fell and more products came to be
freely traded, as a practical matter, it became difficult for
countries to agree on compensation packages”); see also
Matthew R. Nicely and David T. Hardin, “Article 8 of the WTO
Safeguards Agreement: Reforming the Right to Rebalance,”
St. John’s Journal of Legal Commentary 23 (2008):