Sam Jayne / Axios

President Trump wants to invoke a national security provision to stop the "dumping" of cheap steel into America, but trade lawyers believe Trump's public statements —and dubious legal reasoning — could expose the administration to significant legal problems.

  • The White House's rhetoric: The administration in April identified dumping as the impetus for Trump "standing up" for the steel and aluminum industries.
  • Trump last week on Air Force One:"They're dumping steel and destroying our steel industry, they've been doing it for decades, and I'm stopping it."
  • Why it matters: International trade experts, including NYU Law professor Robert Howse, told Axios that Trump made a big mistake by identifying "dumping" as his basis for imposing retaliatory tariffs on national security grounds. There are already laws on the books to remedy dumping, and if Trump invokes the national security provision to impose new tariffs, other nations will immediately challenge him because they're operating under a World Trade Organization agreement that has no national security exceptions.

If this self-sabotaging scenario sounds familiar, that's because lawyers fighting Trump's travel ban used his bombastic tweets and public statements as evidence he was motivated by a desire to ban Muslims from America rather than his stated mission of keeping out terrorists.

How this works: The Trump administration has launched an investigation under Section 232 of the Trade Expansion Act to explore how to stop foreign countries "dumping" artificially cheap steel into the U.S. market. The Trump administration labels this a national security threat because it undermines American manufacturers. Trump's team would likely try to justify its actions to the WTO by citing Article XXI of the General Agreement on Tariffs and Trade, which allows countries to make trade decisions based on "the protection" of "essential security interests."

But the White House might never be able to use its preferred defense for steel tariffs using the GATT because the WTO already has a superseding Anti-Dumping Agreement that specifically disciplines such cases — and it doesn't allow for a dumping case based on "national security" or contain any national security exceptions. Given that the administration has been clear that dumping is a centerpiece of its Section 232 investigation, a WTO member could choose bring a legal challenge under the Anti-Dumping Agreement to preempt the administration's Article XXI plan.

The approach has other problems: Trade experts view Article XXI — designed for emergencies or wartime — as a third rail in international trade law. If Trump invokes it he would threaten the WTO's legitimacy and potentially spark a global trade war. The U.S. also has domestic laws surrounding dumping that were recently expanded by Congress early last year, and White House could face a domestic legal challenge to any action against steel dumping — for example, from an auto manufacturer or a foreign exporter — before it has to face down the WTO.

What trade lawyers are asking: Is this the strategy of a nationalist administration set to paint either an international trade organization or the judicial branch as diametrically opposed to its America first policy or, similar to the roll-out of the travel ban, is the administration not prepared for the impact of the president's public statements?

Go deeper

3 hours ago - Technology

TikTok to pull out of Hong Kong

Illustration: Aïda Amer/Axios

TikTok said Monday night that it would pull its social video platform out of the Google and Apple app stores in Hong Kong amid a restrictive new law that went into effect last week.

Why it matters: TikTok's move comes as many large tech companies say they are still evaluating how to respond to the Hong Kong law.

5 hours ago - World

Ethiopia's Nobel Peace laureate cracks down on ethnic violence

The image of a Nobel Peace laureate in military fatigues encapsulates the moment in which Ethiopia finds itself — on the verge of a transition to democracy, a descent into violence or, perhaps, a precarious combination of the two.

Driving the news: At least 166 people were killed after an iconic musician, Haacaaluu Hundeessaa, was murdered last Monday in Addis Ababa, the capital. Prime Minister Abiy Ahmed responded to the violence by sending in troops and shutting off the internet. High-profile opposition leaders were arrested, along with some 2,300 others.

Updated 7 hours ago - Health

Atlanta Mayor Keisha Lance Bottoms tests positive for coronavirus

Atlanta Mayor Keisha Lance Bottoms said on Monday that she has tested positive for the coronavirus after displaying no symptoms.

Why it matters: Bottoms, one of several Black women on the shortlist to be Joe Biden's running mate, has risen to national prominence in recent months as part of mass protests over racism and police brutality — driven in part by the killing of Rayshard Brooks by Atlanta police.