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122 Colum. L. Rev. Forum 1 (2022)

handle is hein.journals/sidbarc122 and id is 1 raw text is: COLUMBIA LAW REVIEW FORUM
VOL. 122                      JANUARY 10, 2022                     PAGES 1-17
Kathleen Claussen*
For many years, the executive branch has concluded foreign commer-
cial agreements with trading partners pursuant to delegated authority
from Congress. The deals govern the contours of a wide range of U.S.
inbound and outbound trade: from food safety rules for imported pro-
ducts to procedures and specifications of exported goods, to name two.
The problem is that often no one-apart from the executive branch nego-
tiators-knows what these deals contain. A lack of transparency rules
has inhibited the publication of and reporting to Congress of these unseen
deals. Dozens if not hundreds offoreign commercial deals are unseen in
two ways: (1) The executive branch rarely makes their texts readily avail-
able, and (2) the texts of many such deals appear largely to have been lost
by the executive branch itself This Piece lays out how the Biden Admin-
istration and Congress could ameliorate such problems in the trade trans-
parency and recordkeeping systems. It identifies the flaws in our separa-
tion of trade law powers that have led to the hiddenness of such deals,
drawing from interviews with U. S. officials that help to shed light on the
deals' obscurity. Expecting that the Biden Administration is likely to rely
on these deals despite these acute problems, this Piece suggests changes to
the system without hampering the executive's use of this increasingly
important tool.
In 2020, the United States entered into at least thirty-two different
commercial agreements with U.S. trading partners governing myriad top-
ics, from automobiles to special commercial zones.1 Take, for example, the
* Associate Professor, University of Miami School of Law; Non-Resident Senior Fel-
low, Institute of International Economic Law, Georgetown University Law Center. Special
thanks to the several U.S. government staff who were willing to be interviewed for this Piece.
Thanks also to Curt Bradley, Oona Hathaway, and participants in the Georgetown Interna-
tional Economic Law Colloquium for their comments and engagement on this sub-
ject. Daria Pietropaolo and Isabelle Janssen provided excellent research assistance. Finally,
I am grateful for the support of the terrific Columbia Law Review team, especially that pro-
vided by Dori Rahbar.
1. For a partial list, see Off. of the U.S. Trade Representative, 2021 Trade Policy
Agenda and 2020 Annual Report of the President of the United States on the Trade Agree-
ments Program   1-34   (2021), https://ustr.gov/sites/default/files/files/reports/2021


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