CWR > Volume 5(2); 2019 > Prof. Malawer's US-China Trade Commentary
Research Paper
Published online: September 1, 2019

Trump, Trade and National Security: Will Federal Courts Rein in the President?

Stuart S. Malawer
George Mason University
3351 Fairfax Dr., MS 3B1, Arlington, Virginia 22201 USA
Corresponding Author:

ⓒ Copyright YIJUN Institute of International Law. This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License ( which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.


President Trump has, for the first time in the US trade history, aggressively redefined the US trade policy as a supporting actor in the US national security policy. His presidential actions have involved a broad array of legislation, such as trade sanctions and export controls. Most astonishing is that President Trump has imposed trade restrictions by relying upon unilateral findings of national security risks or the existence of national emergencies. We are now at a point where federal courts in the US have been asked to review the validity of presidential trade actions, specifically the central legality of the broad delegation of congressional trade authority over the last 75 years. I predict that the federal courts will uphold the separation of powers in the face of the outrageous and unprecedented onslaught of presidential tariff and trade actions by a president relying upon dubious claims of national security and national emergency.

Keywords : National Security, National Emergency, Section 232, Separation of Powers, Non-delegation of Legislative Function, Trade Policy, Federal Litigation and Trade, WTO Litigation

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