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

As the global trading system undergoes measurable 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 goverenance may evolve in the coming years and how cooperation and resilience within the international community may be strengthened.

^[1]

Scholarship on Trade Administration Systems in the EU

Unlike the United States (U.S.), whose trade administration grew from colonial roots, the EU emerged as a supranational entity that unified member states and centralized trade bodies. In the aftermath of World War II, the European leaders saw economic integration as a safeguard against future outbreaks of war.^[2] The Schuman Declaration was presented by French foreign minister Robert Schuman in 1950 and proposed pooling coal and steel production under a supranational authority. One year later, the European Coal and Steel Community was signed by six countries, inaugurating what would become the European Coal and Steel Community, which created supranational institutions, including the High Authority, Council of Ministers, and parliamentary assembly.^[3] In 1957, the Treaty of Rome established the European Economic Community, which permitted signatory States committed to a common market to engage in the free movement of goods, people, services, and capital.^[4] The Treaty of Rome also abolished internal customs duties among States and established a Customs Union, imposing the common external tariff on imports from outside the European Economic Community.^[5] During this time, the European Free Trade Association (“EFTA”) emerged as a response to economic integration; the EFTA did not establish a common trade policy, and instead, allowed member States to negotiate their own duties against non-EFTA members. Ultimately, EFTA members joined the European Economic Community (“EEC”) and the EU’s common currency, the euro, was established by the European Monetary System.

The formal trade policy agendas of both the U.S. and the EU emphasize the protection of domestic industry and the enforcement of fair trading practices. Yet, the two jurisdictions pursue these objectives through markedly different institutional and procedural means, informed by their contrasting economic philosophies and governance traditions. These structural and normative differences shape not only how trade policy is formulated but also how it is reviewed, implemented, and contested. In the U.S., trade policymaking is embedded in the federal constitution. Although Congress holds the constitutional power to regulate foreign commerce, it has delegated much of the practical negotiating and implementation authority to executive agencies and the president. As a result, contemporary trade policy often reflects executive priorities grounded in economic growth, global competitiveness, and geopolitical security. Under the Trump Administration, these priorities were further reframed through an “America First” paradigm of domestic industrial revitalization and protectionist tariffs. By contrast, the EU’s supranational structure and executive leadership seek to balance the collective EU interest with the interests of its sovereign member states. The EU trade agenda is informed by its post-World War II commitment to economic integration, regulatory harmonization, and long-term political stability. Consequently, the EU trade governance is characterized by collective decision-making and consensus building. This is reflected in both the establishment of a uniform external trade policy and the obligation to accommodate diverse national interests.

Whether in reaction to colonial monarchial power or twentieth century authoritarianism in Europe, the U.S. and EU both value a form of separation of powers and recognize the dangers of consolidated authority.^[6] However, the practical distribution of trade authority raises important questions. To what extent do contemporary administrative structures consolidate power within the executive? What are the implications of asymmetrical allocations of trade authority for democratic accountability and policy outcomes?

Jörg Broschek’s analysis of federalism and international trade policy in the U.S. and EU provides a useful framework for understanding these questions.^[7] While Broschek primarily addresses the vertical distribution of trade authority, his findings highlight the value and significance of how authority is distributed for policy implementation and democratic participation.^[8] Broschek observes that constituent groups become politically mobilized when they anticipate that trade agreements have the potential to undermine their authority. He notes that constituents in both Europe and the U.S. have expressed concern that certain trade provisions may threaten institutional integrity, citing controversies around ISD mechanisms. Such reactions underscore the extent to which trade governance is not merely a technical undertaking, but a contested political process shaped by institutional prerogatives and constituent values.^[9]

Comparative Analysis of the U.S. and EU

A comparative analysis of U.S. and EU trade law reveals how structural features in trade administration significantly influence each system’s integrity and resilience. Though both jurisdictions rely on executive agencies and maintain judicial review mechanisms capable of scrutinizing trade measures, the balance between executive authority, constitutional boundaries, and institutional oversight differs sharply. These contrasts offer unique opportunities for cross-jurisdictional education. At their root, trade administration in both the U.S. and EU involves a tension between (1) agile policy implementation and executive presence in the global economy and (2) constitutional and statutory commitments to separation of powers, accountability, and international cooperation.

In the U.S. this tension manifests through what Claussen identifies as the “trade administrative state.”^[10] Under this model, trade law is a powerful apparatus that shapes trade policy largely through executive agencies.^[11] What distinguishes this model, according to Claussen, is the emergence of a managerial institution that develops trade policy, enforces trade policy, monitors implementation, and adjudicates compliance.^[12] Additionally, this institution operates outside the ambit of administrative law controls, including notice-and-comment and judicial review procedures, allowing the trade administrative state to exist in some form of constitutional blind spot.^[13] This flaw raises important questions: does the trade administrative state undermine transparency and the separation-of-powers principles that undergird the U.S. Constitution? Or does it paradoxically facilitate agility in an otherwise unfeasible trade law regime? Maybe it has the capacity to do both, and that’s something that needs to be acknowledged by the Supreme Court.

In the EU context, this tension can be visible in Open Strategic Autonomy—a policy framework that attempts to balance the EU’s constitutional commitment to openness and unilateral action. To Gesa Kübek, the concept of “openness” emerges as a constitutional norm in Articles 3(5) and 21 of the TEU; this concept implicates commitments to multilateralism, international cooperation, trade liberalization, and compliance with international law.^[14] However, recent EU instruments adopted under the label of “open strategic autonomy” contradict these constitutional priorities while being unilateral, protectionist, and potentially incompatible with the WTO.^[15] As Kübek argues, the practical implementation of this so-called balance results in unilateral action that dominates cooperative multilateral approaches.^[16] This practical outcome carries significant normative and institutional implications.

The degree of transparency and institutional accountability within trade administration strongly correlates to the vulnerability of said administration. In the U.S. model, as Claussen argues, trade authority has been consolidated in a powerful executive body with relatively weak procedural and substantive checks as compared to oversight in comparable regulatory domains.^[17] What results is a sect of U.S. administration that is hidden from traditional democratic scrutiny, undermining legitimacy and accountability. Without rigorous adherence to procedural checks, there is no assurance that agency behavior reflects democratic interests. Similarly, in the EU, the practical drift towards member State unilateral interests may erode constitutional, treaty-driven commitments to ‘openness’ and transparency.^[18] As Kübek warns, the doctrine of Open Strategic Autonomy may lead to deviations from treaty-based ‘openness.’ For both jurisdictions, without strong institutional safeguards of parliamentary oversight, robust judicial review, and compliance with constitutional and statutory frameworks, trade administration risks becoming subject to opaque executive action.

Both systems acknowledge the benefits of agency-driven trade administration, namely technical expertise and agility, while also recognizing the dangers of excessive executive discretion. In the U.S., this tension has become increasingly visible. Even before the beginning of his second term, President Trump threatened the employment of IEEPA power. His successive uses of this act demonstrate how presidents may invoke “national security” to justify trade actions and further political agendas.^[19] Within the EU, national interests and member-state sovereignty pose a similar tension. A drift toward unilateralism may become palatable under the guise of “national sovereignty” and “national identity.”^[20]To combat such rhetoric, the EU may need to embrace a more principled economic constitution to ensure trade governance operates within a framework of institutional accountability and cooperation. Both systems will continue to confront the persistent pushes to concentrate trade authority into executive hands unless they are anchored by concrete, enforceable mechanisms that ensure transparency. Further, public scrutiny limits political overreach; when government behavior is visible, political leaders face greater electoral incentives to act responsibly, thereby increasing democratic participation and ensuring the integrity of trade governance.^[21]

Trade administration in the U.S. and EU, despite their distinct constitutional foundations and histories, grapples with the challenge of reconciling the need for flexibility, efficiency, and expertise with constitutional commitments to transparency and accountability. Both jurisdictions seek to equip their respective polities with the necessary infrastructure to respond to global economic changes; however, their attempts to calibrate this balance contain flaws. The U.S. model, shaped by centuries of statutory layering and congressional delegation, has created a trade administrative state in which executive agencies exercise significant discretion, often functioning in the shadows of statutory administrative law constraints. This consolidation of authority can both enable rapid, strategic responses to global developments, but it risks insulating trade lawmaking from necessary oversight and constitutional checks.  The EU, in contrast, has established a centralized and constitutionally guided supranational framework that treats trade administration as an instrument for collective economic welfare and political stability. Trade administration in the EU is anchored in constitutional commitments to openness and cooperation, but the practical reality of this system reveals sovereignty, and nationalism can strain those commitments. The EU’s challenge, therefore, is not excessive executive discretion but gradual erosion of constitutional norms that were intended to ensure integration and collective governance.

Together, both jurisdictions demonstrate that constitutional and institutional design does not end with formal delegations of power. Instead, its contours continue to evolve through judicial interpretation, geopolitical dynamics, and economic events. It is imperative that both the U.S. and EU reassess the scope of agency deference and political influence to ensure and establish durable safeguards that promote transparency and constitutional checks. Ultimately, the stability of the global trading order will depend on strengthening the constitutional and statutory frameworks that govern trade administrative action.

---

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

^[2] See Jo Shaw, European Integration, Oxford Pub. Int’l L., (June 2022) (describing nationalist resurgence during inter-war years which resulted in renewed interest in European integration to reduce risk of interstate rivalry). Shaw discusses the ambitions for European integration being a “common market for goods, services, persons, and capital, the establishment of a customs union and common external tariff, the adoption of common policies in areas of competition and state aid to buttress the common market, and a common agricultural policy”). See Id.

^[3] See id. (discussing the TFEU contains institutional provisions clarifying legislative process for Council of EU and European Parliament as co-equal legislators and requires QMV amongst the Member States as ‘ordinary’ default legislative procedure; unanimity is only used in exceptional cases).

^[4] See id. (explaining under EEC, European Commission was still independent from Member States, once appointed; it had executive power and authority to initiate legislation). However, decision-making power shifted to the Council of Ministers, so it lay with representatives of the Member States. See Id.

^[5] See id. (explaining from 1970s on, process of European integration through Treaty of Rome drew European States and from 1994, participants in EFTA were linked to EU through wider economic framework).

^[6] See Timothy Meyer, Trade and the Separation of Powers, 107 California L. Rev. 583 (2019) (discussing how “the imbalance in the constitutional separation of powers on trade issues undermines the commitment to trade federalism embedded in the Constitution).

^[7] See Jörg Broschek, Introduction: Federalism and International Trade Policy. The Rise of Constituents Units’ Engagement in North America and Europe, 33 Regional & Federal, (July 18, 2022) (providing an analysis of comparative federalism and international political economy).

^[8] See id. (claiming “constituent units have established themselves, over time, as actors who participate, directly or indirectly, at different phases of the trade policy cycle”).

^[9] See id. (outlining argument consistent with post-functionalist theory which “refers to the fact that trade agreements are no longer perceived as highly technical documents, but rather as policies that represent ‘fundamental values and identities’”).

^[10] See Claussen, supra note 2. (referring to the “vast landscape of executive branch agencies that write trade rules, monitor the implementation of those riles, adjudicate disputes over their content, and subsequently enforce them”).

^[11] See id. (describing functions of this apparatus).

^[12] See id. (explaining managerial role is played by USTR which supervises most of modern trade lawmaking enterprise).

^[13] See id. (explaining that in trade, due to statute and doctrine, evades administrative law constraints).

^[14] See Gesa Kübek & Isabella Mancini, EU Trade Policy Between Constitutional Openness and Strategic Autonomy, 19 Eur. Const. L. Rev. Cambridge Univ. Press, (Jan. 8, 2024). (adding that ‘openness’ cannot be considered a constitutional norm by itself; it acquires a heightened meaning because it results from several EU foreign policy objectives).

^[15] See Penny Pritzker, Why U.S. Leadership on Trade and Investment is a Linchpin of the International Liberal Order, Brookings, (June 8, 2016) https://www.brookings.edu/articles/why-u-s-leadership-on-trade-and-investment-is-a-linchpin-of-the-international-liberal-order/

^[16] See Gesa Kübek & Isabella Mancini, supra note 33. (arguing that a policy designed in pursuit of ‘open’ strategic autonomy must be informed by constitutional norms of openness in international cooperation, trade liberalization, and international law compliance).

^[17] See Claussen, supra note 2. (explaining lack of oversight alters incentives trade agencies would otherwise face; for example, without checks, agencies are not pressured to provide information ex ante in their rulemaking).

^[18] See Kübek, supra note 33. (describing absence of constitutional norms from open strategic autonomy policy).

^[19] See Elizabeth Goitein, How the President Is Misusing Emergency Powers to Impose Worldwide Tariffs, Brennan Center For Justice, (Apr. 9, 2025) https://www.brennancenter.org/our-work/research-reports/how-president-misusing-emergency-powers-impose-worldwide-tariffs (explaining use of emergency powers to impose tariffs is clear abuse of presidential emergency powers).

^[20] See Armida van Rij et al., How Will Gains by the Far Right Affect the European Parliament and the EU?, Chatham House, (June 11, 2024) https://www.chathamhouse.org/2024/06/how-will-gains-far-right-affect-european-parliament-and-eu (explaining parties on far-right support greater national sovereignty over economic policy decisions).

^[21] See Broschek, supra note 26 (discussing importance of executive transparency for constituent participation).