The Yale Law Journal

February 2020

The New National Security Challenge to the Economic Order

International TradeNational Security

abstract. National security policies increasingly threaten the rules that govern trade and investment flows. This problem is deeper and far more intractable than recent high-profile controversies, such as disputes over the Trump Administration’s steel and aluminum tariffs, suggest. Governments worldwide have adopted national security policies that address an increasingly wide array of risks and vulnerabilities, including climate change; pandemic disease; cybercrime; terrorism; and threats to infrastructure, industry, and the media. These policies are also increasingly likely to conflict with trade and investment rules. In other words, while today’s high-profile controversies center on alleged abuses of national security in economic law, it is the potential for good-faith but novel national security claims that poses a more significant and permanent threat to the system.

This Article is the first to map the new national security challenge and consider its implications for reforming the economic order. It demonstrates that the twenty-first-century expansion of national security policy undermines existing models for separating security measures from ordinary economic regulation. What is needed, it argues, is a new model for reintegrating the economic order with the national security state. To that end, this Article identifies reforms that allow for some oversight of increasingly novel national security claims while preserving flexibility for governments to redefine their security policies in response to twenty-first-century threats.

author. Acting Assistant Professor of Lawyering, New York University School of Law. Many thanks to José E. Alvarez, Alberto Alvarez-Jimenez, Julian Arato, Simon Batifort, Ilya Beylin, Pamela Bookman, Elena Chachko, Kathleen Claussen, Harlan Cohen, Melissa Durkee, Robin Effron, Seth Endo, Geoffrey Gertz, Carla Greenberg, Mohamed Helal, Esther Hong, Robert Howse, Rebecca Ingber, Maryam Jamshidi, Tal Kastner, Benedict Kingsbury, Steven Koh, Nicolas Lamp, Simon Lester, Will Moon, Stratos Pahis, Mona Pinchis-Paulsen, Sergio Puig, Danya Reda, Anthea Roberts, Shalev Roisman, Aaron Simowitz, Thomas Streinz, Emily Winston, Alyson Zureick, and participants in conferences and workshops at McGill University, Brooklyn Law School, the Cato Institute, and New York University School of Law. Thanks also to Rachel Brown, Josh Zoffer, and the staff of the Yale Law Journal for careful, skilled, and conscientious editing.