The Evolving Trade Administration: Contemporary Legal Scholarship on U.S. and EU Implementation of Tariff and Trade Policy (Part I)

As the global trading system undergoes measureable strain, driven largely by the United States' renewed shift toward protectionism, it is increasingly important to examine trade administration frameworks in both the U.S. and the EU. Such an examination is necessary to understand how global trade governance may evolve in the coming years and how cooperation and resilience within the international community may be strengthened.

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The Federal Hall at Wall and Nassau Streets in lower Manhattan housed the establishment of the United States Customs Service, a federal agency created to collect tariffs at points of entry and safeguard the revenue of the newly independent nation.^[2] Centuries later, the Customs Service has evolved into a vast network of administrative agencies operating under the capacious umbrella of United States (U.S.) tariff and trade law.^[3] From America’s earliest days, commercial exchange has not only facilitated the creation of global supply chains but has also shaped political alliances and domestic development.

Trade agreements and the conduct of trade partners have historically played a significant role in domestic economic growth, international supply chains, and geopolitical outcomes. From the preferential Corn Laws of nineteenth-century Britain, which sparked debates over protectionism and liberalism, to the colonial trade networks that defined European imperial competition, trade policy has long been intertwined with State governance and international diplomacy.^[4] The economic devastation following World War I, exacerbated by protectionist measures like the Smoot-Hawley Tariff Act of 1930, exemplified how certain trade policies could deepen global crises.^[5] Conversely, after World War II, the Marshall Plan and the creation of the General Agreement on Tariffs and Trade (“GATT”) demonstrated the stabilizing power of cooperative trade frameworks.^[6] From early experiments in preferential tariffs and multilateral agreements to today’s intricate regime of free trade agreements (“FTA”) and strategic tariff policies, trade policy remains an invaluable mechanism for improving domestic economic stability, supporting private-sector growth, and bolstering multilateral institutions. As States navigate technological innovation, shifting geopolitical dynamics, and even global pandemics, trade remains an important tool for prosperity and stability. ^[7]

Against this historical backdrop, a comparative approach offers a useful framework for examining U.S. trade administration. The promulgation and enforcement of trade laws depends on various statutory frameworks and administrative structures. Central to this process—and most critical for the purposes of this blog—is the delegation of authority to agencies tasked with interpreting, developing, and implementing trade laws. These administrative bodies serve as the operational core of domestic trade governance, translating legislative and executive mandates into actionable regulations that shape economic behavior domestically and abroad.^[8] There is variation in how administrative agencies interpret and enforce trade policies. This variation reflects more than technical expertise or bureaucratic discretion. Agencies operate within a broader political landscape, meaning their agendas are often shaped by the priorities of the executive or legislative bodies and the scope of authority granted to them by statute. As a result, agency behavior is neither uniform nor autonomous.

Further, the jurisdictional comparison between the U.S. and the EU is inherently asymmetrical; the EU is a supranational body established in the twentieth century, while the U.S. trade administration dates to the country’s founding. Despite this distinction, examining the foundational differences that structure the two jurisdictions remains critical for understanding their contemporary administrative behavior. Additionally, because trade administration in both jurisdictions operates within a political context, this analysis will account for the political forces that shape administrative conduct.

The development of trade administration in the U.S. reflects an interplay among constitutional design, economic exigencies, and political evolutions. What emerges, as Kathleen Claussen and other scholars have argued, is not a linear evolution, but a reconfiguration of authority, oscillating between congressional control and presidential discretion.^[9] In Trade Administration, Kathleen Claussen introduces a “vast trade-lawmaking administrative apparatus” that operates through sui generis processes enabling unsupervised monitoring, rulemaking, adjudication, and enforcement.^[10] Her analysis focuses on the United States Trade Representative (USTR), which she characterizes as a “super-agency” that oversees other agency action but bypasses statutory requirements, including notice-and-comment procedures and judicial review.^[11] Claussen contends that the trade administrative state is distinctive in that it “both reject[s] administrative law features and inject[s] international law primacy into the administrative process.”^[12] This historical analysis grounds Claussen’s critique of the modern managerial model of trade administration, highlighting its drawbacks, such as limited opportunity for judicial review, and its benefits, such as increased U.S. commitments to international trade law.^[13] Throughout her article, Claussen underscores the value of agency expertise while calling for greater administrative review, accountability, and adherence to statutory procedures.^[14]

Tom Campbell, in his articlePresidential Authority to Impose Tariffs, examines the devolution of Congress’s constitutional authority over tariffs to the president, particularly when the president asserts authority in the absence of statutory grants.^[15] Campbell traces the history of broad interpretations of the International Economic Emergency Powers Act (IEEPA), arguing that such interpretations disturb the constitutional balance between Congress’s tariff-setting power and presidential authority.^[16] Campbell claims that the IEEPA’s broad language and application violate principles of statutory construction, undermine the separation of powers, and distort the international trading order scheme.^[17] To illustrate the illegitimacy of presidential tariff authority absent explicit congressional delegation, Campbell distinguishes between tariffs and quantitative restrictions, such as quotas. Tariffs, he argues, should remain in the legislative domain, as they generate revenue, encourage pro-consumer responses, and provide no offsetting reciprocal advantages to exporting countries that can be leveraged into “voluntary controls.”^[18] In contrast, quotas are typically products of negotiations between countries and, therefore, should exist in the realm of the executive.^[19] Campbell concludes by reiterating the inappropriateness of presidential tariff authority and denouncing Congress’s “supine posture regarding the erosion of its comparative spheres of influence vis-à-vis the executive branch.”^[20] Taken together, Claussen’s and Campbell’s critiques frame the structural tensions within the contemporary U.S trade administration.

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^[1] Free Trade Agreement 1935, Wikimedia Commons (Aug. 18, 2019), https://commons.wikimedia.org/wiki/File:FreeTradeAgreement1935.jpg

^[2] See Kathleen Claussen, Trade Administration, UNIV. OF MIA. SCH. OF L. 845, 856 (2021) (explaining fifth Act of Congress established federal Customs Service for collecting tariffs at ports of entry, but its responsibilities quickly expanded to design, construction, staffing, and management of lighthouses in customs districts).

^[3] See id. at 868 (explaining Congress sought to push trade law and policy decisions out of legislative process and into executive authority; executive agencies assumed fact-finding roles, investigatory capacities, quasi-judicial functions, and more).

^[4] See Kevin H. O’Rourke, British Trade Policy in the 19^th Century: A Review Article, 16 Eur. J. of Pol. Econ. (Nov., 2000) (outlining history of British trade policy and use of preferential tariff treatment).

^[5] See CFI Team, Smoot-Hawley Tariff Act, CFI, https://corporatefinanceinstitute.com/resources/economics/smoot-hawley-tariff-act/ (explaining American agricultural bodies pushed federal government to safeguard agricultural goods against imports, leading President Hoover to rais tariffs by 20%, prompting retaliatory tariffs from trading partners, and U.S. exports falling from $7 billion to $2.5 billion in three years).

^[6] See Michael Tomz, et al., Membership Has its Privileges: The Impact of GATT on International Trade, Stan. Ctr. for Int’l Dev., (Aug. 2005) (describing how multilateral pacts, such as GATT, promote trade by helping countries coordinate efficient outcomes and allowing concessions between any two participants to automatically pass to others through the most-favored-nation principle).

^[7] See Global Cooperation at a Crossroads: Possibility amid Rising Geopolitical Uncertainty, World Economic Forum, (Jan. 7, 2025) https://www.weforum.org/press/2025/01/global-cooperation-at-a-crossroads-possibility-amid-rising-geopolitical-uncertainty/ (discussing Global Cooperation Barometer indications that international cooperation has weakened, and political leaders must account for emerging technologies shaping the global landscape).

^[8] See Kathleen Claussen, supra note 2 (introducing “executing-branch-lawmaking apparatus with monitoring, rulemaking, adjudicating, and enforcement features that operate in considerable shadow”).

^[9] See id. (explaining trade lawmaking is embedded within the “trade administrative state” which requires a better balance between congressional and presidential power).

^[10] See Claussen, supra note 2, at 847 (introducing trade lawmaking body that sits inside executive branch and wields substantial administrative controls).

^[11] See id. at 849–850 (defining USTR as super-agency that oversees other agency rulemaking bodies and can compel actions from other areas of the federal government). Claussen explains the diminished congressional role and greater authority to the executive branch empowered the relatively new power dynamic in the USTR. See id.

^[12] See id. at 850 (explaining USTR intervenes with domestic rulemaking processes where it finds that rules proposed by other agencies are not compliant with international law).

^[13] See id. at 869 (defining “managerialism” in context of U.S. trade administration). Claussen argues that managerial trade administration emerged in response to market and legislative forces. She illustrates this by examining the USTR’s managerial functions, including oversight, monitoring, and enforcement, which exemplify the modern trade administration’s managerial dynamic. Id.

^[14] See id. at 916 (calling for enhanced accountability and transparency by adding procedural, mitigating steps to reduce negative impact of managerial model of trade administration).

^[15] See Tom Campbell, Presidential Authority to Impose Tariffs, 83 LA. L. REV. 595, 596 (Mar. 10, 2023) (explaining power constitutionally vested in Congress has been ceded to president, notably in areas of commander-in-chief authority and tariff authority).

^[16] See id. at 596–598 (describing IEEPA as example of striking assertion of presidential authority over tariffs without congressional permission). Campbell specifically references President Trump’s threats to heighten tariffs to intimidate Mexico into stopping immigrants from entering the United States illegally. President Trump’s threats and assertion of tariff authority were never subject to judicial challenge. Id.

^[17] See id. at 599–605(highlighting economic differences between tariffs and quantitative restrictions, and arguing former fits better within legislative domain, while latter belongs in executive domain).

^[18] See id. at 617 (explaining inappropriateness of presidential tariff authority is clear in cases of tariffs imposed on single country, which violates most-favored-nations (MFN) premise since founding of General Agreement on Tariffs and Trade (GATT)).

^[19] See id. at 616 (explaining appropriateness of circumstances in which president is given authority over quantitative restrictions since president has great scope of action to negotiate “voluntary” quantitative import restraints).

^[20] See id. at 617–618 (describing Congress’s willingness to “accept the loss of its constitutional prerogative...”).