Abstract
For many years, the executive branch has concluded foreign commercial 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 products to procedures and specifications of exported goods, to name two. The problem is that often no one—apart from the executive branch negotiators—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 of foreign commercial deals are unseen in two ways: (1) The executive branch rarely makes their texts readily available, 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 Administration and Congress could ameliorate such problems in the trade transparency and recordkeeping systems. It identifies the flaws in our separation 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.