Given the centrality of national security to the rationale advanced by the Trump administration in justifying the recently levied tariffs against steel and aluminum, you might think this term might be defined somewhere, either in the relevant legislation or sections of the U.S. Code from which the president is drawing his authority to act.
And you would be wrong.
The same administration officials—namely Peter Navarro and Wilbur Ross, both of whom are trade-nativists, labeling concerns about an impending trade war hysteria and “fake news” are also touting the president’s action as necessary because of some looming national emergency, in which a surplus of domestic steel appears to be the sole factor on which the country’s survival hinges. The facts of what might occasion such a crisis are trivialities apparently as irrelevant as the likely price increases Navarro and Ross have been downplaying.
The supposed exigencies of these tariffs rests on the multi-faceted claim that (1) the steel industry is suffering a catastrophic decline, (2) that declining production capacity threatens the long-term viability of the steel industry and (3) that this could potentially spell disaster in the case of a national emergency.
In two reports generated by Ross in his capacity as Secretary of Commerce, which respectively outline the state of the steel and aluminum industries, the powers granted the executive under Section 232 of the 1962 Trade Expansion Act are referenced when national security is mentioned.
But this section of the Act offers no concrete definition as to what constitutes a national security matter or what might be considered a viable challenge to it.
The relevant section of the law in question references national security several times.
It authorizes both the president and the Director of the Department of Emergency Management “in the light of the requirements of national security and without excluding other relevant factors” to:
give consideration to domestic production needed for projected national defense requirements, the capacity of domestic industries to meet such requirements, existing and anticipated availabilities of the human resources, products, raw materials, and other supplies and services essential to the national defense, the requirements of growth of such industries and such supplies and services including the investment, exploration, and development necessary to assure such growth, and the importation of goods in terms of their quantities, availabilities, character, and use as those affect such industries and the capacity of the United States to meet national security requirements.
But this, much as the broader quest to find some concrete meaning behind the national security rationale that gives such concrete authority to executive action, is a circuitous statement.
Some clarity is gained from this piece of the Trade Expansion Act in that it offers a firm idea of the relationship between domestic industries and their ability to sufficiently provide defensive agencies with materials needed to guarantee the nation’s security. But, again, the scope of what constitutes a threat to the nation’s security, which seems a key piece of information if domestic industry is to provision the nation against threats, is unclear. As are the factors which are being weighed to determine whether domestic industry is in a position to fulfill the crucial task with which they’ve been charged.
The Act does name a few specific factors—“any substantial unemployment, decrease in revenues of government, loss of skills or investment, or other serious effects resulting from the displacement of any domestic products by excessive imports” to be weighed in considering tariffs.
And the Trump administration has latched onto a few of these. In his proclamation announcing the imposition of tariffs against steel, the president borrows heavily from Ross’ report on the state of the industry, identifying the “increased level of global excess capacity [against 2001 levels], the increased level of imports, the reduction in basic oxygen furnace facilities, the number of idled facilities despite increased demand for steel in critical industries, and the potential impact of further plant closures on capacity needed in a national emergency” as rising to the level of a national security threat.
These factors do indeed touch upon many of the conditions named in Section 232 of the 1962 Trade Expansion Act, but the fundamental problem remains: their connection to national security is offered as a fait accompli. The specific national security threat (though, in the context of 1962, is obviously related to the specter of global communism) is never defined, nor are the exact ways in which the named elements—unemployment, decline in revenue, etc.—will stymie a national emergency defined.
The nebulous nature of a “national emergency” and the exact nature of the relationship between it and domestic economic conditions, which is established but never explicated, are in large part a result of the degree of discretion given to the president and the various heads of executive departments upon whom he calls for information.
In some ways, this is only rational. It must be remembered, after all, that the Trade Expansion Act was written under the specter of global communism. Even if certain ties between national security and domestic production remain, the exact nature of this relationship has presumably evolved along with the state of global politics.
But imprecise language covers a great deal of sins. As terms are left to be defined with reference to a specific situation, they simultaneously mean nothing and everything: nothing because they are placeholders for a rationale to be inserted later by the relevant actors, and everything because these same actors can endrun the need to offer a specific rationale by simply citing the authority of a statute.
Trump and Ross, the lead actors in this protectionist drama, never offer any specific evidence to justify their assertion that circumstances that impair the national security exist. Trump in his proclamation cites Ross, who cites the 1962 Trade Expansion Act, which merely asserts that there is a relationship between the domestic economy and national security.
They do not give any benchmark for what a healthy steel industry would look like, a metric that would allow the rest of us to better understand whether their hyperbole is justified. Nor do they provide evidence to show that imported steel is the cause of the supposed catastrophic decline in U.S. steel or that tariffs would rectify the perilous situation we ostensibly face. Sure, there’s math in Ross’ report that details a high import to export ratio for steel, but no direct tie to the decline of U.S. steel is ever established (nor, for that matter, is the rise of new materials ever given consideration). And even if it were, that is still a step removed from demonstrably proving that the downturn in economic production is a viable national security threat, whatever that means.
It stands to reason that if you give the executive sweeping authority and empower him to act on his discretion, he’s going to do so, and without paying attention to any implied process of strict scrutiny written into vaguely worded legislation. Rather, its much easier to feign this by citing the rationale of a credible official, who in turn can cite the rationale of another credible official, who can point to statutes that give his position credibility. By the time you’ve arrived at the original source, you’ve gone through so many convoluted steps that you’ve forgotten exactly what you were searching for.
This is all too true in this case. To find a definition of “national security” one has to pour through so many presidential proclamations, executive department reports, sections of U.S. Code and their subsequent amendments, that words have stopped to lose their meaning, as each statute relies on so many others for its definition.
Also published on Medium.