USTR nomination highlights contradictions in Trump’s trade policy

Robert Lighthizer

Photo courtesy of Wikipedia used under the Creative Commons license.

Trump’s trade policy is a series of contradictions wrapped in a mystery. While advancing a boldfaced pro-business agenda, promising to gut regulations and reduce public spending on healthcare and other social programs, he has also claimed to care about American workers and jobs losses caused by trade agreements like NAFTA that were specifically designed to reduce regulations. While his own businesses have included licensing deals for goods produced in developing countries known for poor labor standards, publicly he attacked U.S. companies that offshored jobs to lower costs and promised to rewrite the rules to somehow bring those vanished jobs back. He promises to negotiate better trade deals but is poisoning the political atmosphere for negotiations with xenophobic proposals such as building a wall and ordering to ban migrants. Exactly how his administration will reconcile all of those contradictions is a mystery, and there are real reasons for alarm over his lack of commitment to international human rights standards.

Exactly who is really in charge of his trade policy is another mystery. While he has nominated Robert Lighthizer as United States Trade Representative (USTR), he has also established a National Trade Council within his administration, led by Peter Navarro, and has indicated that Wilbur Ross, his pick for Commerce Secretary, would lead the negotiations to revamp NAFTA. U.S. trade negotiations have always involved representatives from various government agencies (as well as the corporations  represented on the Trade Advisory Committees), but those collaborations were always led by the USTR. This time, it’s not so clear.

This obfuscation, while important in itself, is also a signal that the Trump administration and his party will continue to ignore a key popular demand on trade: a transparent and democratic negotiating process where ultimately, accountability resides with Congress. Opponents of NAFTA, the Trans-Pacific Partnership (TPP), and the Transatlantic Trade and Investment Partnership (TTIP), including labor, have consistently opposed existing processes that essentially limit Congressional oversight and approval to a thumbs-up or thumbs down vote. Rather than opening up the negotiations to input, the Trump administration appears to be creating an even more byzantine path to trade policy that will prevent members of congress from weighing in, much less allowing for any real public participation by those sectors most affected by trade.

Robert Lighthizer’s nomination as head of USTR is not so much an issue of his qualifications rather it is his intentions and his authority to make any real changes in our failed trade policy. Lighthizer is a lawyer who once served as deputy trade representative and brings significant experience in Congress and the office of the USTR.  He has valuable experience from the other side of the table too, having represented Brazil and China in previous trade talks. (Because of this experience, provisions in the 1995 Lobbying Disclosure Act that would disqualify him from serving as USTR will actually have to be waived by Congress). His firm, Skadden, Arps, Slate, Meagher and Flom LLP, has focused on traditional trade litigation representing corporate interests. 

How he will bring his relevant experience to the role (as confused as that role is) is important to know, and the Senators reviewing his nomination should ask tough questions. First and foremost, he should be asked how he will reconcile the contradictions evident in the current administration’s trade approach, and how he would develop a cohesive trade agenda.

These questions could include:

  1. Farmers in the U.S., and round the world, are suffering from unpredictable and mostly low commodity prices. Agribusiness-export dumping under NAFTA resulted in millions of Mexican farmers being driven from their land. U.S. farmers are also facing the dire consequences of low prices coupled with rising input costs. As part of a commitment to supporting rural America, would you set the sustainable livelihoods of U.S. farmers as an explicit objective in a renegotiated NAFTA?  How could trade rules better protect local foods and farms in all countries?
  2. Prior to renegotiating NAFTA or entering into other trade talks, would you support reforming the U.S. internal trade negotiation process to encourage congressional responsibility for establishing trade objectives as well as supporting the democratic process of legislative debate prior to trade agreement approval?
  3. How do you propose information be gathered on Americans’ priorities on trade? Would you conduct field hearings in rural and urban areas to determine the impact of trade and investment agreements on job creation and wages? Would you support greater transparency in NAFTA and other trade negotiation processes, such as publishing draft negotiating texts before and after each round of talks?
  4. What would be the consequences for binational cooperation with Mexico on issues such as drug enforcement, military cooperation, and immigration, if the NAFTA renegotiation talks were to fail and the U.S. were to withdraw from the agreement?
  5. As a result of Mexico and Canada’s challenge of Country of Origin Labeling (COOL) for meat at the World Trade Organization (WTO), the U.S. has eliminated this popular program. Would you support efforts to reinstate COOL or other changes in trade rules to support consumers’ rights to know about their food? How would you address the issue in the NAFTA talks and other trade forums?
  6. President Trump has indicated a strong preference for bilateral over multilateral trade agreements. How do you propose to balance the need for consistency among international standards on such issues as food safety with the administration’s imperative for one-off deals?
  7. Investor-State Dispute Settlement, which empowers foreign companies to sue governments in private tribunals over public interest laws, is one of the most controversial provisions in international trade agreements. Would you support removing that mechanism from NAFTA and other U.S. trade and investment agreements?
  8. Past agreements have expanded trade in sectors that are major greenhouse gas emitters and could restrict policies on climate change in the future. How will you address climate change in the development of future trade agreements?
  9. The WTO is a flawed, but important institution in setting common trade rules around the world. The U.S. is currently involved in multiple WTO disputes over agriculture and energy. What reforms do you think are necessary at the WTO to improve global cooperation and ensure that trade rules don’t override other international concerns like human rights and environmental sustainability?

Of course, the big underlying problem is that U.S. trade policy is held hostage both by the corporate advisors who actively participate in trade talks, and by the undemocratic Fast Track rules that prevent meaningful public participation or real accountability to Congress.

It is imperative to revamp trade policy so that it supports sustainable economies and livelihoods rather than corporate profits. Civil society groups around the world have been pushing for a radically different framework for trade regulation for decades. Their vision of trade is one that supports sustainable economies and livelihoods, not just simplifying profit-making for a few economically powerful corporations and their financiers. Trump and his advisors are critical of the trade strategy that has been in place in the U.S. since the Reagan years. Yet, with no clear agenda or interest in diplomacy, the idea of tweaking NAFTA or entering into new bilateral deals with better outcomes for working people, farmers and the environment is simply not credible.

It’s hard to see how all of the contradictions in the new trade policy can be reconciled or how to make progress in the face of unprecedented conflicts of interest within this administration, but it won’t be for lack of pressure by farmers, unions, environmentalists and others committed to a very different vision for trade and global governance.