Analysis

Biden Win Would Shift, Not Shatter, Trump China Policy

Law360 (September 11, 2020, 9:18 PM EDT) -- Democratic presidential nominee Joe Biden is largely positioning his campaign as a strict rebuke of the Trump administration, but when it comes to China trade policy, a Biden presidency would likely only bring subtle changes.

Taken in a vacuum, many of the items on Biden's economic agenda would not appear out of place in the Trump administration's talking points. The plan contains generic promises to rebuild U.S. manufacturing, punish companies for moving offshore and "take aggressive trade enforcement actions against China."

At the same time, the campaign colors President Donald Trump's escalating tariff battle with Beijing, and the trade deal he struck as a truce, "an unmitigated disaster."

But the Biden campaign has offered little in the way of articulating how the former vice president's approach would differ from Trump's should he win the presidency in November, leading experts to surmise that Biden is not planning a big shake-up on the China front.

"Most people believe that there will be a difference in tone and rhetoric but less of a difference in actual policy," former Clinton administration trade official William Reinsch told Law360. "What Trump is doing is a classic case of right diagnosis, wrong prescription. There would be less volatility [under Biden] in the policy, less threat and bluster."

Both camps generally share the view that China's economic rise has been fueled by a litany of unfair trade practices including intellectual property theft, excessive state subsidization and state-sponsored cyber-espionage. But the extent to which Biden's prescription would differ from Trump's is something of an open question, and representatives for his campaign did not respond to requests for comment.

So far, the Biden team has been coy about its plan to deal with the new tariffs imposed by Trump. These include levies on roughly $370 billion worth of Chinese goods, as well as duties on steel and aluminum from around the globe imposed in 2018 on the basis of national security.

Biden initially said in August that he would remove the tariffs on Chinese goods, but that position was later softened by the campaign, which has said Biden would "re-evaluate" those levies upon taking office.

Some of the fiercest criticism of Trump's tariff approach has come from within his own party, leaving Biden in a tricky spot to craft a response. To the extent Biden would eliminate Trump's tariffs on China, he likely would only do so in the context of extracting new commitments from Beijing through negotiation, Reinsch said.

"[Biden's] objective will be to clean up the mess, to get rid of the tariffs because they are hurting us as much or more than the Chinese, but he's not going to do it for free," he said. "There will be a negotiation, and the Chinese will give him enough to get rid of some or all of these things and reset the relationship."

The Trump administration publicly floated such a plan earlier this year when it struck a "phase one" trade deal with China, which required Beijing to increase its purchases of certain U.S. goods but left the bulk of administration's tariffs in place.

Those levies were to be peeled away if the parties could make progress on more substantive issues in a "phase two" agreement. That second-phase effort has mostly been shelved in the wake of the coronavirus outbreak and new tensions with Beijing, but it's one that Biden could easily revive as he looks to put his own stamp on U.S.-China relations.

"Any time you have a new administration, you have an opportunity to reset," Hogan Lovells partner Jonathan Stoel told Law360.

One way Biden has attempted to distinguish himself from Trump is by promising to rally U.S. allies to exert coordinated economic pressure. The campaign has reiterated a common critique of the Trump approach, which has seen the U.S. escalate tensions with close partners like the European Union and mostly go it alone against China.

"Rather than picking fights with our allies and undermining respect for America, Biden will work with our closest allies, mobilizing more than half the world's economy to better deliver for our workers," the campaign's platform says.

While that critique is not new, the Biden campaign's formal documents are light on explaining exactly what concerted action the former vice president would take or how he would convince other countries to join him.

"It's not at all clear we'll be able to work with our allies, and they never really back it up," said Derek Scissors, a China trade expert at the conservative think tank American Enterprise Institute. "Which allies and on what issue? What are you going to propose to them, what will you give up in exchange, what will you do when they don't want to cooperate? None of that is ever addressed."

One option could be to partner with close allies to pursue sweeping cases against China at the World Trade Organization, but therein lies another complication for Biden, as Trump has spent much of his term fostering an icy relationship with the multilateral trade body the U.S. helped build in the 1990s.

Trump never made good on his threat to withdraw from the WTO entirely, but his administration has shuttered Geneva's top legal authority, the Appellate Body, by blocking new judges from filling vacant seats over the panel's purported encroachment on U.S. sovereignty.

The move has left the WTO in an existential funk, as its members scramble to piece together a package of reforms that could placate the U.S.

Biden has voiced support for the global trading system, but he also helped push the Trans-Pacific Partnership as vice president, which would have created a new slate of trade rules outside the scope of Geneva.

"Biden has historically supported the WTO, he has historically supported multilateral discussions and eventual trade pacts. … I think we would re-embrace the WTO," Venable LLP partner Ashley Craig told Law360. "He may take the opportunity to address those [issues] and get us back closer to Geneva than we are today."

The campaign has not taken a public position on restoring the Appellate Body or the extent to which it would look to re-engage with the WTO, but any plan to exert coordinated pressure on China would likely involve mending fences on the international stage.

If elected, Biden figures to inherit ongoing trade talks with Kenya and the United Kingdom that began under Trump, and will also be tasked with continuing to implement the U.S.-Mexico-Canada Agreement that took effect this year.

But the campaign has been mostly silent on the question of pursuing new trade agreements with allies to exert pressure on China, leading some to believe it's not a high-priority agenda item.

"That would be a mistake," Hogan Lovells partner and former U.S. trade official Kelly Ann Shaw said. "I would hope that whoever is sitting in the Oval Office would continue the policy of addressing foreign trade barriers, but at this moment I'm not sure that's in the cards at least for the first year of a potential Biden administration."

Biden also figures to follow Trump's lead in cracking down on IP theft and security concerns within China's telecommunications industry.

Trump placed Chinese telecom giant Huawei on an export blacklist last year, but AEI's Scissors said the door is open for Biden to potentially go beyond Trump by implementing new export controls on foundational and emerging technologies that passed Congress in 2018 but have been slow to materialize under Trump.

"You can be to the hawkish side of Trump on this issue without being super hawkish,'' Scissors said. "I can see them being tougher than the Trump administration on this issue. A Biden administration wouldn't have to do anything radical. … They can come in and say, 'You know, I think we're going to implement the export controls that an overwhelming number of Democrats voted for.'"

The heated rhetoric of a presidential campaign may be masking growing bipartisan agreement that the economic and security threats posed by China are legitimate and that any variance between the two parties lies in their responses to those threats.

"If Biden wins, I don't think the fundamentals are going to change or that the fundamental suspicions of Chinese actions are going to change," Reinsch said.

--Editing by Aaron Pelc and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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