Twenty-First Century Trade Negotiations, the US Constitution, and the Elimination of US State-Level Protectionism

As international trade negotiations expand to address non-tariff barriers in the form of procurement practices, subsidies, and product standards, and new areas such as trade in services and investment, negotiators must constrain sub-federal government protectionism. Political and economic factors will drive the twenty-first century trade negotiator to seek additional constraints beyond those in current agreements. Recent US Supreme Court federalism jurisprudence has created uncertainty in the minds of negotiators as to whether the United States suffers from a constitutional incapacity to accept and implement anti-protectionism obligations and private party enforcement mechanisms with respect to US state governments. However, recent federalism jurisprudence related to the Commerce Clause, 10th Amendment, and 11th Amendment does not create any legal incapacity. Rather, negotiators will have to overcome the significant but not insurmountable political reluctance of the United States to comprehensively constrain state-level protectionism. Copyright 1999 by Oxford University Press.