Just a week before the inauguration, in the real world of 2025, what will actually happen — to borrow from lyrics from a slightly later era — still ain’t exactly clear. Mr. Trump has proposed at least five different policies, mostly incompatible. One is an overall 10% or 20% tariff — the most Hoover-like option, with tariffs as much as ten times their current rate. Another is the imposition of tariffs on particular countries as tools for particular issues such as migration, and a third is stopping trade with China, Canada, and Mexico in particular. Last year’s Republican platform added a “Rube Goldberg”-style scheme in which each U.S. tariff line is equal to or higher than every analogous tariff line in every other country, and the tariff schedule balloons out to millions of lines; another option is traditional, Hoover-era tariff legislation. The most recent, via press trial balloons, is tariffs on products administration officials decide are especially sensitive. 

Tariffs are occasionally necessary, of course. Governments can use them appropriately to give industries struggling with import surges or subsidized competition space to recover (as the Biden administration did last year with respect to Chinese-produced electric vehicles), or to isolate aggressor governments as with the punitive tariffs imposed on Russia in 2022. But they always raise costs — a strange choice for Mr. Trump to make, after the advantages his campaign drew from the inflation burst of 2021-2023 — and, in general, tend to lower living standards and erode industrial competitiveness. Depending on the way the incoming administration tries to impose them, they can also harm the separation of powers and the Constitution. And looking ahead, the Biden administration’s experience demonstrates the error of trying to answer by blurring differences or proposing “lite” versions of the same thing.

This doesn’t mean critics need a very detailed response now. That isn’t necessary until the administration program becomes clear. But they do need to lay the intellectual foundation for it soon. Here, then, are four principles, meant to bridge the Constitutional, economic, strategic, and political issues the various Trump proposals raise: 

• Defend the Constitution and oppose attempts to rule by decrees.
• Connect tariff policy, both as taxation and trade policy, to growth, work, prices and family budgets, and living standards.
• Stand by America’s neighbors and allies.
• Offer a positive alternative.

I. MOVING BEYOND BIDENOMICS

In applying these principles, there’s no need for Democrats — or liberals in general, or others concerned about living standards, competitiveness, and America’s place in the world — to feel bound by Bidenomics. To the contrary, a new agenda needs some clear breaks with it.

President Biden’s program had some very positive results: low unemployment, steady growth, and faster decarbonization. Its “industrial strategy” programs, if expensive, do seem to have strengthened the semiconductor industry and might still prove durable ways to reduce emissions in automobiles and power plants. The Biden team also leaves some useful trade policy starting points:  Commerce Secretary Raimondo’s innovative export promotion programs, Secretary Yellen’s Treasury concept of “friendshoring” as a way to ensure diverse sourcing and pool allied strengths in a more dangerous world, and Vice President Harris’s campaign summary of a broad tariff increase as fundamentally a tax increase on working families all make sense.

But Bidenomics also had failures and missed opportunities, and ended as a political liability. The White House badly oversold its “industrial strategy” as something that could create a much larger manufacturing sector, as opposed to the very important but less cosmic semiconductor and emissions-reduction plans. (Manufacturing, at 10.9% of GDP before Mr. Trump’s initial round of tariffs in 2018/19, fell to 10.3% by 2021. Its share now, industrial strategy or not, is 10.0%.) In trade policy as in some other areas, Bidenomics missed an opportunity to cut prices for families — obviously, the working-class public’s single largest concern last year — and make sure the first Trump administration bore its appropriate share of blame for inflation, by leaving the 2018/19 tariffs largely untouched and declaring the permanent tariff system untouchable. It stranded the U.S.’ $3 trillion export sector by giving up on lowering foreign trade barriers and promoting digital trade. Most important, as we warned nearly two years ago, its concession of tariff issues to Trump without a fight in 2021-2023 proved a grave political weakness in 2024, leaving Vice President Harris’ valiant campaign without a positive alternative to Trump’s tariff increases.

II. FOUR PRINCIPLES

The coming years require something else. What might it be? Trumpism will be better defined within a few months. Within a few years, any of its various proposals will likely create new problems (or recreate old ones) that require solutions we cannot now define. So, for now, a detailed response would be premature. But as a point of departure, here are four principles meant as a foundation for critiques of Trumpism and the development of alternatives:

1. Defend the Constitution. First, prevent breaches of the separation of powers, and insist that Congress consider any change in tariff policy in a Constitutionally appropriate way. The Constitution’s Article I, Section 8, gives Congress unambiguous authority over “Taxes, Duties, Imposts, and Excises,” and for good reason. No single individual, president or not, should have the power to create his or her own tax system out of nothing. That, at minimum, risks impulsive and ill-considered decisions. Even more seriously, it creates a standing temptation for all future presidents to use tariffs to reward personal friends and supporters, and likewise to punish critics, business rivals, and disaffected states.  

As a legal matter, Congress has passed a number of laws “delegating” tariff policymaking to presidents in certain situations. Some seem Constitutionally sensible and convenient. Others, such as the International Emergency Economic Powers Act and sections 301 and 232 of U.S. trade law, give presidents too much unchecked power. But even in these cases, no law is meant to allow a president to create his own tariff system. Whether or not courts find such a step “unconstitutional,” given precedent from case law and Congressional drafting errors, as an obvious breach of an unambiguous Congressional power, it would certainly be “anti-Constitutional.” Congress should oppose the perversion of any current law for this purpose, insist that no general tariff increase ever occur absent a formal vote, and reject any attempt to impose tariffs by decree.

2. Connect trade and tariff policies to American living standards, work, and growth. Second, define tariff policy correctly as tax and trade policy, and analyze its effects on the basis of its impact on working family living standards, business competitiveness, and growth.

As Laura Duffy explained in her PPI paper last fall, tariffs are a poor form of taxation, distinguished from broader income or consumption taxes for narrow base and high rates, and for opacity, regressivity, and inequity. They are opaque because they are hidden from the consumers who bear their costs — one reason PPI and other polling tend to find tariffs a low-priority issue (pro or con) among working-class families. They are regressive because, in their role as a form of sales tax, they tax only goods, and less affluent families spend twice as much of their income on goods — clothes, shoes, cars, toothbrushes, Band-Aids, food, rugs, TVs, chairs — as rich families. Even today, tariffs account for a quarter of the cost of cheap shoes, and add 10% to the price of mass-market stainless steel forks and spoons. Adding another 10% or 20% tariff, or whatever the actual Trump administration policy turns out to be, to this adds immediately to their cash-register prices. A tariff increase, therefore, presages not only higher prices in the abstract — but higher prices mostly on things important to hourly-wage families. (And remember the Trump platform’s top single promise last year: “restore price stability, and quickly bring down prices”). And they are inequitable for businesses as well as families, since they tax goods-using industries — manufacturers, farmers, building contractors, retail outlets, restaurants — but not services- and investment-intensive sectors like financial services or real estate.

In trade policy, tariffs do have legitimate policy roles — for example, as part of a program to isolate aggressor governments (as with the removal of Russia’s MFN status in 2022), or giving temporary support to industries facing import surges or competitive troubles, and needing some space to upgrade. But policymakers should reserve tariffs for these kinds of unusual circumstances. The better trade policy approach is to build the export sector — a $3 trillion part of the U.S. economy, leading the world in farming, energy, and services exports, and second in the world for manufacturing — and find ways to promote it. Exporters pay high wages and earn a fifth of all U.S. farm income; they are disproportionately successful manufacturers, lead the world in cutting-edge innovation from digital technology to biotech, and range from world-famous medicine and aerospace firms to small chocolatiers and specialized musical-instrument makers. All are easy targets for the foreign governments who will retaliate against U.S. tariff hikes and breach of agreements. These are national assets, and policy should encourage their success, rather than turning them into trade war cannon fodder.

3. Stand by America’s allies and neighbors: Third, protect and build, rather than disrupt and erode, America’s strategic relationships with allies and neighbors. The U.S. is rare among historic world powers to have both long-term alliances with most of the world’s advanced economies, and deep and friendly ties with its immediate neighbors. These are strategic assets built over decades and core elements of any serious economic or national security strategy for the next decades. 

So it is especially disturbing to see Mr. Trump use his free time in these transition months to pick fights, including through tariff threats, with neighbors and allies from Canada and Denmark to Mexico and Panama. Economics apart, these countries have often stood with the U.S. when it counted a lot. Remember, for example, that Denmark, with its 6 million people and 21,000 military personnel, lost 43 soldiers not so long ago in Iraq and Afghanistan. Canada lost 158. Neither deserves repayment with bullying and economic threats. Certainly, difficult policy issues and disputes turn up at times in alliance and big-neighbor relationships — military spending, export controls, border issues, narcotics control — are all important topics on which the U.S. has legitimate interests, and sometimes disagreements. But to think you can solve any of them more easily by alienating the relevant governments and publics is arrogant. And to forget the very large value we draw from mutually beneficial trade, technological partnerships, and cross-border investment with allies and neighbors is self-destructive folly. Democrats should stand by our alliances and good-neighbor relationships as major national strengths, even if the incoming administration hasn’t yet learned their value.

4. Provide a positive, reformist, alternative: Fourth, define the outlines of a better trade approach. Though a very detailed program is premature, three lines of policy can form a basic vision that offers both household and national benefit:

• International engagement: Pool strengths and deepen ties with neighbors and allies through updated, reciprocal trade agreements. Trade negotiations and agreements can help both find non-inflationary sources of growth by expanding markets for America’s exporting factories, farmers, energy, and services industries, and diversity and secure supply chains by deepening relationships with neighbors and allies. This can include U.S.-Europe agreements with the United Kingdom as an immediate choice, a return to the 15-country Trans-Pacific Partnership — now functioning very well as the “CPTPP” for Japan, Australia, and other allies, including the U.K. — and using the 2026 “review” of the “USMCA” to broaden it to Caribbean, Central, and South American countries. The content of such agreements would change in some ways from the FTAs negotiated in the 2000s — probably, for example, through coordination of export control policies vis-à-vis authoritarian countries, joint approaches to Chinese over-capacity, and subsidies in some industries, energy and LNG supply to Europe and Asia, secure access to and joint development of critical minerals and other essential industrial inputs, and other matters — but would remain in the internationalist strategic tradition.
• Domestic reform: Lower costs for families and industry. Balancing this outward-looking, optimistic approach to negotiations, move on from defending Constitutional government to restoring it, and from opposing regressive tariff hikes to developing a new approach that makes trade policy fairer and cuts costs for families. At a more personal level, Congress can ease the cost of living by reforming the permanent tariff system, stripping regressivity and sexism out of the clothing, silverware, shoe, and other consumer goods schedules — where hundreds of lines simply raise the prices of cheap mass-market goods not made in the U.S. for decades, and the higher rates imposed on women’s clothes as opposed to men’s extracts $2.5 billion from women each year — and making the functioning of this system transparent. Here the starting point is the Pink Tariffs Study Act introduced last spring by Representatives Lizzie Fletcher and Brittany Pettersen. 
• Protect the Constitution: Finally, ensure Constitutionally appropriate policymaking by safeguarding Congress’ control over tariff rates.  Here, the starting point is the Prevent Tariff Abuse bill introduced by Representatives Suzanne DelBene and Don Beyer, which bars the use of tariffs through the International Emergency Economic Powers Act.

CONCLUSION

These are of course starting points and principles meant as guidelines for a period of uncertainty and flux. They identify areas in which policymaking needs to be strengthened and guarded against abuse, new threats and destructive ideas to oppose, and lines of policy that can help families stretch their budgets, strengthen U.S. industries, and safeguard America’s place in the world.

In trade as in some other matters, the Trump administration is taking office next week with a variety of incompatible promises, threats, Hooverist rhetoric, and eccentric references to the late President William McKinley. This means the next years may create new challenges that analysts can intelligently guess at but can’t predict with real precision, and a detailed response will have to. But though even a week before the inauguration, its program ain’t exactly clear, two things do seem certain:

One, Mr. Trump’s tariff threats — whichever among them proves to be the “real” policy — are bad ideas. All of them, though in different ways, would leave Americans with lower living standards, higher-cost and less competitive businesses, and eroded national security.

Two, critics of these threats should not repeat the Biden administration’s attempts to blur differences with Trumpism and propose softer versions of it. Instead, they need a forthright critique and an alternative that can deliver the opposite of Trumpism: a lower cost of living, more competitive agriculture and industries, and a stronger position in a more dangerous world.

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Is there life for the World Trade Organization (WTO) after neoliberalism? The WTO is often assumed to exist to provide “neoliberal standards and rules for interaction in the global economy.” What role might the WTO have in a post-neoliberal world, where maximizing the free movement of goods, services, and capital is no longer presumed to be the desired path to development and growth?

Today, the going wisdom is that the WTO is no longer fit for purpose, and even its supporters have suggested that major institutional reform is essential for its survival. While the WTO was once seen by many as the standard bearer for global economic governance, in recent years, the WTO has been hit by escalating critique from virtually all corners, and has been consigned to irrelevance by many. If, as a leading Financial Times business journalist has declared, “[t]he bottom line is that globalization as we’ve known it for the last half century is over” and “we need much more focus on the local,” the WTO appears fated to die, as some of its critics have already predicted, albeit slowly and painfully.

On this logic, the WTO’s Twelfth Ministerial Conference (MC12) in June 2022 in Geneva should have taken on the character of a funeral or wake. Instead, at the eleventh hour, after days of marathon negotiating sessions, the MC12 resulted in several significant multilateral agreements on issues such as WTO reform, e-commerce, fisheries subsidies, agriculture, and food security (the “Geneva package”). Still, some of these accords were merely undertakings to keep negotiating, or require additional talks to become final. So depending on your perspective, the MC12 either resurrected the WTO from the dead to live again, or merely kept a mortally wounded WTO on “life support.”

In this Article, we aim to contribute, as legal scholars, to the debate about the WTO’s future after the MC12, in a post-neoliberal world—a time that some have even described as “deglobalization.” Our objective is not to sketch a new, comprehensive model of global justice or global economic governance to suit the times. Instead, by focusing on the underlying legal architecture of the WTO, we want to suggest that the WTO’s legal order is already well-suited to pivot to a post-neoliberal world. It is fundamentally compatible with an era where no single governance paradigm has emerged to replace neoliberalism, and where states are actively experimenting with a return to strong domestic economic governance, including industrial policies, as well as what former Canadian international trade and foreign affairs minister Chrystia Freeland described as “values-based” domestic and regional trade policies, which take into account fairness to workers as well as principles of human rights and democracy.

In this Article, we argue that the WTO’s legal architecture is fundamentally pluralist, building in acceptance and respect for different political and economic systems, and different approaches to governance and industrial policies among diverse nations. Despite some troubling departures from pluralism during its history, such as the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), taken together and understood in their best light, the WTO’s legal disciplines protect the normative, economic, political, and ideological diversity of states at the domestic level. This architecture allows states to be held accountable where they impose certain collectively sanctioned economic costs or harms on other states through their trade policies. But it simultaneously seeks to ensure that these constraints do not require the adoption of a particular model or system of social or economic governance by any WTO member state.

This claim that the WTO’s legal disciplines are not ideological does not mean, however, that they are “neutral” or value-free. As we shall discuss below, there is a normative logic to the WTO’s legal order, rooted in consensual political agreement that states should avoid imposing certain harms or costs on one another through trade policies, while otherwise preserving domestic regulatory differences. As Dani Rodrik describes the underlying logic: “[The] purpose was never to maximize free trade. It was to achieve the maximum amount of trade compatible with different nations doing their own thing.”

Our analysis also does not deny there have been problematic departures from this commitment to pluralism, particularly during and after the Uruguay Round, as we shall discuss. But these have been mitigated by the WTO’s Appellate Body (AB) case law, which has emphasized the need for a balance between liberalization commitments and the right to regulate. In this way, we shall argue, legal interpretation has played has an essential and constitutive role in the WTO’s commitment to pluralism.

Understanding the WTO’s future role as empowering diversity through pluralism is novel for trade law scholarship. We are not simply arguing that the WTO should protect or respect domestic policy space, that the WTO should merely return to its original legal disciplines as encapsulated in the original General Agreement on Tariffs and Trade (GATT), or that the WTO should embrace embedded liberalism, although we incorporate elements of all of these important prior claims. Instead, our conception of pluralism is forward-looking, and offers suggestions for how to deepen the WTO’s commitment to pluralism by empowering more diverse actors to benefit from the gains of open trade. This means tackling obstacles to such opportunities, including those that do not look like typical trade “barriers.” For example, lack of availability of trade finance and of information technologies means it is much easier for large trading companies to benefit from the legal security the WTO provides than smaller or poorer economic actors, for whom the transaction costs of plugging in directly to the global economy and its opportunities may be prohibitive. Here we see existing initiatives at the WTO on inclusive trade, on trade and gender, and on micro-, small, and medium-sized enterprises as pointing the way toward a more pluralist approach, as well as inclusive implementation of the Trade Facilitation Agreement on customs practices.

We proceed in four Parts. To understand where the WTO should go from here, we need to know where it came from. Thus, in Part I, we offer an introduction to the standard history of the GATT and the WTO. We describe the Organization’s origins with the GATT in 1947, and explain how its membership and mandate expanded over a series of negotiating “rounds,” culminating in the creation of the WTO in 1995, with the conclusion of the Uruguay Round. We also explain how the standard view of this history is that the move from GATT to WTO fully entrenched a nascent neoliberalism in the WTO’s legal disciplines.

This move from the GATT to WTO resulted in unprecedented levels of critique of the multilateral trading system. In Part II, we describe three waves of critique of the WTO as a legal order: what we will call the neoliberal critique, the Seattle critique, and the recent Washington critique. These three types of critiques, we argue, inform in various important ways contemporary debates about the WTO’s future and how to interpret the results of the recent MC12.

In Part III, we offer our own conception of the WTO as an international legal project by offering a rereading of its history and its legal architecture. We argue that the core of the WTO’s legal order protects the domestic pluralism of its member states by allowing them to define their own constitutional orders and industrial policies. We do this by analyzing several foundational aspects of the law of the GATT and the WTO, both procedural and substantive, which entrench pluralism. The identification of the WTO legal system with neoliberalism is therefore an error, although of course there are important deviations from pluralism in the WTO’s history. This pluralist approach, we argue, also requires legal interpretation guided by the notion that the goal or telos of the trade system is not to generate as much free trade or integration as possible, but rather to preserve a healthy balance between the gains from liberalization and the need to protect the diversity of domestic political and economic systems. As such, the AB’s jurisprudence has been crucial in “rebalancing” the WTO toward pluralism.

In light of this exposé of the resilient pluralism of the WTO’s legal architecture, we go on to consider what kind of life the WTO could or should have going forward. In Part IV, we return to the contemporary critiques of the Organization with our pluralist understanding of the WTO in hand. We argue that the neoliberal and Washington critiques of the WTO are largely misplaced, as they misunderstand the Organization’s institutional mandate and underlying norms; and that progressive, Seattle-type critics of the WTO may have to temper their expectations for reform. We also discuss the path forward for the WTO in a post-neoliberal world. We argue that there is a fit between this durable pluralist architecture and relaunching the WTO with a vision of positively facilitating pluralism, diversity, and experimentation in social and economic policy, as a guiding aspiration. This goal seems plausible, given the collapse or erosion of the neoliberal paradigm and the absence of some new emerging overall dominant ideology of globalism. But if pluralism is to become a lodestar, the formal acceptance of difference has to be supplemented by new initiatives that allow for broader inclusion in the global trading system and that redress the imbalance and inequity in the pattern of real winners and losers from the application of its rules. By restating pluralism as a guiding aspiration, we leave ample space for critique, if the WTO again finds itself coopted by the interests of powerful states or unable to move past the dominance of powerful lobbies such as Big Pharma, or where trade under its rules continues to reproduce an arguably inequitable distribution of the benefits and burdens.

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