A panel ruling last week from the World Trade Organization that U.S. tariffs imposed on Chinese products beginning in 2018 violate WTO rules is both unsurprising and—I’m sorry to say—unimportant. By acting as judge, jury, and executioner, the Trump administration clearly breached the most basic rules of the trading system. The essence of the covenant among WTO members is to deter what is rightly described as vigilantism, where a member decides for itself that it is aggrieved by another member’s practices and unilaterally metes out rough justice in the form of trade restrictions. It affirms the rule of law over the law of the jungle.
Under WTO rules, a member that believes it is aggrieved by another member’s practices must file a formal complaint and—absent resolution following formal consultations—present its claims to a dispute panel, which hears from both sides and renders findings with respect to those claims. Ultimately, if a member found to be in violation of an agreement fails to come into conformity, then retaliation (the “withdrawal of concessions,” in diplomatese) can be authorized by the WTO. Accordingly, regardless of whether you or I or U.S. Trade Representative Robert Lighthizer believes the Chinese practices that gave rise to the U.S. tariffs are predatory, unfair, or violative of China’s own WTO obligations, in the context of agreed international trade rules, the United States was wrong to act as it did. That’s clear. End of story.
But, that outcome is of limited practical utility. The Trump administration is not about to comply with an adverse ruling from an international body it regards with deep skepticism, especially when the finding is considered a victory for China. Moreover, the United States isn’t technically out of compliance until after it has exhausted its appeals. Alas, thanks to the determined refusal of the United States to endorse any new candidates to serve on the WTO Appellate Body (there’s supposed to be a bench of seven jurists, with three assigned to each case) before sitting jurists’ terms expired, the appeals process is now defunct.
So now what? Well, the best place to deal with the China tariffs is at home—in the United States. This is first and foremost, a matter of domestic concern. U.S. consumers and businesses who suffer the costs of the tariffs, as well as anyone rightfully concerned about executive abuse of power or Congress’s capitulation of its constitutional authorities, should be using the U.S. courts to call out the administration’s violations of the Trade Act of 1974 and, better still, to argue that pertinent sections of the Trade Act amount to an unconstitutional delegation of legislative authority to the executive branch.
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