Law Firm Sees Trade Facilitation Downgraded as a White House Priority

DOGE’s plans to reduce the number of employees working at the Department of Commerce could potentially impact that agency’s ability to enforce export compliance and promote trade facilitation, Venable international trade chair Ashley Craig said.

At DHS, where CBP resides, DOGE activity appears to be focused on the civil rights divisions within the department, Craig continued. While Venable attorneys “are relatively confident” that CBP will not undergo significant cost cutting, the agency is also “being stretched” as assets are being deployed to the southern border in support of deportation activities, Craig said.

Meanwhile, the Office of the U.S. Trade Representative is a relatively small agency and could manage to survive DOGE’s cost-cutting efforts, Craig said.

“So, trade facilitation is questionable. I think, arguably, it's not a priority of this current administration,” Craig said. “So, keep an eye on how streamlining and the activities of DOGE may impact on the trade facilitation activities of the federal government.” He added that other agencies that touch upon trade could “also be hit” by DOGE’s plans.

Craig's colleague, trade attorney Liz Lowe, discussed two recent, “under-the-radar,” developments that could impact tariffs and trade policy, and reviewed Trump’s tariff activities since he resumed office in January.

One development is a restriction passed by House Republicans that effectively curtails Congress’ ability to challenge the president’s declaration of national emergencies for the remainder of the year, according to Lowe. The declaration claims there will be no more calendar days in the rest of this session of Congress, through the end of 2025, in a procedural gambit that would block the ability of Congress member critics of Trump's tariffs on Canada and Mexico to challenge that policy legislatively (see 2503110049).

This move also could be an effort by House Republicans to avoid making any public statements about the tariffs, according to Nick Choate, senior policy adviser in Venable’s government relations practice group.

“By basically taking that tool away for the remainder of this calendar year, [Republicans] bought a little bit of time, and perhaps we get a little more certainty with regard to tariffs in the interim,” Choate said.

The other development is a declaration by Secretary of State Marco Rubio that import- or export-related rulemakings qualify for a foreign affairs exemption and are therefore exempt from the Administrative Procedure Act. But trade lawyers suspect that this declaration will be subject to the discretion of the courts (see 2503140013).

While Trump may have sought to close tariff-related loopholes, there are some potential actions that companies could take to somewhat shield themselves, according to Lowe. One is to conduct a customs review, which means looking at all the issues that impact the application of tariffs, such as USMCA eligibility, Chapter 98 eligibility and country of origin as it pertains to potential changes in manufacturing or sourcing to help achieve a substantial transformation.

Looking at ways to reduce declared value is another potential avenue to pursue, according to Lowe, which may involve shifting or sharing the tariff burden to both upstream and downstream partners via contractual provisions or using incoterms to shift customs and duties burdens.

Meanwhile, in Congress, Republicans don’t appear poised to publicly challenge Trump’s policies even though there might be some misgivings about how a policy impacts on the state and local levels, according to Choate.

But where there could be some leverage among Senate Democrats is via certain procedural tools, such as using privileged motions, to override emergency declarations and the tariffs that come with them, according to Choate. This could potentially be an action for Canada, but not for Mexico or China, which are more “politically fraught,” Choate said. However, the House would be unlikely to take up such a measure, he continued.

The big picture is that “this is not a strictly partisan issue in Congress,” Choate said. “Again, I'm going to focus more on the tariffs than other aspects of trade but depending on which state or which district you represent, even Democrats are not universally opposed to the tariffs that the president is imposing. If you're from an auto state or a state with steel production, for example, some of these tariffs might be attractive to you, particularly given labor presences in your district.”

He continued, “So, I do think, while most would probably prefer a more managed, reviewed, notice-and-comment type of procedure that goes into these tariffs, the tariffs themselves are not necessarily a political -- or we see a partisan political -- divide. What you do have, though, is just, frankly, an unwillingness or a fear in Congress of having to vote or intervene on these things right now.”

Also discussed on the webinar was a review by Craig of proposals before Congress to reestablish the U.S.’s shipbuilding capabilities and to hit ocean vessels heading to U.S ports that are of Chinese origin with fees (see 2503240003).