Heath: The New National Security Challenge to the Economic Order

J. Benton Heath (New York Univ. - Law) has posted The New National Security Challenge to the Economic Order (Yale Law Journal, forthcoming). Here's the abstract:

National security policies are increasingly threatening the rules that govern trade and investment flows. This problem goes much deeper and is far more intractable than is suggested by current high-profile controversies, such as recent disputes over the Trump administration’s steel and aluminum tariffs. 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. And these policies are increasingly likely to conflict with trade and investment rules. In other words, while today’s high-profile controversies have focused on alleged abuses of national security in economic law, it is the potential for good-faith but novel national security claims that may pose a more significant and permanent threat to the system in the long run.

This Article is the first to systematically map the “new” national security challenge and to consider its implications for the reform of the economic order. It demonstrates that the expansion of national security policy in the twenty-first century undermines our 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.