Document Type

Article

Publication Date

Winter 2022

Abstract

The modern consensus is that U.S. trade law is made through statute and through large congressional-executive agreements, both of which maintain Congress' constitutional primacy over the regulation of foreign commerce. Contrary to this understanding, however, short, targeted agreements negotiated by the U.S. executive with foreign trading partners - recently referred to as "mini-deals" - have become a fixture of the trade law landscape over the last three decades in staggering number. More than 1,200 such agreements govern the movement of goods and services in and out of the United States from and to 130 countries. Such deals are not only now one of the primary ways trade law is made but also are likely to be the principal tool for trade lawmaking in the Biden Administration. Yet, despite their ubiquity, we know almost nothing about them. This Article explains how this transformation in U.S. trade law has occurred as a growing foreign commercial bureaucracy began to engage readily with foreign partners.

The Article provides an unprecedented look at trade mini-deals, where they come from, how they are made, and what they do. The data show a growing reliance by the executive on mini-deals to achieve foreign commercial goals in the last thirty years and a significant expansion of their scope in the last five years. They are not so "mini" anymore. The data also reveal that these agreements often slip under the radar of our ordinary accountability and monitoring regimes and have been missed by prior scholarship. Their obscurity has enabled them to grow quietly in importance as a means to achieve trade and regulatory policy aims. They have become a preferred tool for good reason, even if they suffer from procedural flaws.

The picture that emerges from this review disrupts prior understandings of the foreign commercial legal topography, demonstrating that both the trade and transnational regulatory landscapes are much more textured than previously understood. The Article uses this hand-collected quantitative and qualitative data set to sketch a more accurate portrait of how our trade law is made. It argues that such agreements serve constructive legislative and rulemaking purposes, supplementing statutes and regulations and sometimes substituting for them. The analysis presented here underscores the profound and cross-cutting bureaucratic authority across foreign relations and the administrative state. Given the importance of this transnational activity and its implications, the Article also opens a new field for interdisciplinary scholarly research.

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