U.S. Trade Policy and Regulation Under Trump 2.0: Key Takeaways from “Week One”

Client Alert  |  January 27, 2025


After months of speculation regarding the possible contours of the United States’ international trade policies under a second Trump administration, the President’s unprecedented flurry of initial executive actions was light on actual, immediate changes to U.S. trade policy.

As detailed below, with few exceptions, the actions have essentially set the stage for (and in some cases set up the legal structure for) future moves without yet implementing policy changes.

Five Key Themes

Despite the absence of formal policy changes, taken as a whole, the executive actions (which include policy memoranda, scores of legally binding executive orders (E.O.s), as well as press and formal statements) set out some broad themes that will likely guide President Trump and his administration as he pursues his trade agenda.  While many of these themes were present in his first term (and others echo former presidents, including the early twentieth century’s William McKinley), the actions taken so far indicate that his second term team is more sophisticated, knowledgeable of the federal bureaucracy, and capable of acting on these themes quickly and sustainably than was the team in place during the previous Trump administration.

First, as he indicated during the campaign, President Trump continues to see trade as a “zero sum game,” turning away from decades of broad bipartisan recognition of the benefits to the United States of free trade governed by U.S legislation and trade agreements intended to protect U.S. interests from unfair trade practices.  By focusing on the trade deficit as an irrefutable indication of American weakness (and foreign powers’ strength) and making broad statements to business elite that if they do not develop manufacturing in the United States they will face tariffs and other consequences, the Trump team has indicated little desire to find a middle ground on trade issues.  President Trump’s broader distrust of the multilateral trading system suggests the United States’ block against the World Trade Organization’s Appellate Body – which has been in place since Trump’s first term and has left the WTO essentially rudderless – is unlikely to be resolved in the near future.  Indeed, the President has asked for a review of all existing U.S. trade agreements, including the World Trade Organization Agreement on Government Procurement.

Second, the President will leverage trade for other policy goals far removed from trade.  While U.S. legislation has always made this the case with sanctions and export controls (which have clear national security goals often unrelated to trade), the Trump team has indicated a willingness to threaten countries with trade-related consequences if they do not invest in border security (Canada), increase defense spending (NATO states), comply with his immigration policies (Mexico and Colombia), and to potentially extract other geopolitical concessions (such as those involving Denmark/Greenland and Panama).  While this novel use of trade measures was apparent in his first term, President Trump now seems set to move even more forcefully and broadly in this regard during his second administration.

Third, the President appears to be gearing up for aggressive trade enforcement to make up for what he deems insufficient trade enforcement by the Biden administration.  His use of the pejorative description of “loopholes“ in describing current export controls provisions and his direction to his Executive branch to address such shortcomings indicates a potentially uniquely muscular approach that his trade-related senior staff – including Trade and Manufacturing Senior Counselor Peter Navarro, Commerce Secretary-nominee Howard Ludnick, Treasury Secretary-nominee Scott Bessent, and U.S. Trade Representative-nominee Jamieson Greer – have supported in their public statements and testimony. The President has also indicated that his administration will pursue very aggressive efforts in applying the antidumping and countervailing duty statutes, the most broadly applied U.S. “unfair trade” provisions.

Fourth, and related to aggressive enforcement, in many trade-related statements, the administration has spoken of a goal of expanding how the United States should “encourage” third country compliance with U.S. trade controls (such as export controls and sanctions).  This suggests a return to a key feature of President Trump’s first term – the use of unilateral trade measures directed against allies and competitors alike – and an imminent expansion of the United States’ extraterritorial trade enforcement.  Extraterritorial trade measures have always been both a critical force multiplier in furthering U.S. policy (such as secondary sanctions) while simultaneously being a source of increasing friction between the United States and other countries.  Unlike in the President’s first term, potential target countries have been preparing – in some cases for more than a year – to respond to these efforts and potentially institute retaliatory measures.  However, as in his first term, President Trump appears as yet unconcerned about any reprisals.

Fifth, President Trump appears set on using essentially unchecked executive authorities to pursue most of his trade agenda rather than rely on or wait for legislation.  In his first term President Trump primarily relied on a mix of existing statutory authorities that allowed limited congressional oversight (such as using legislation undergirding U.S. sanctions to quickly impose tariffs) alongside more traditional tools (such as the longstanding Section 301 and 232 trade statutes which require often lengthy investigations prior to the imposition of tariffs).  In this second Trump administration, however, it appears that the administration will rely more heavily on executive tools.  Given the Republican control of Congress, President Trump may not receive significant initial congressional pushback regarding any concerns that he may be overstepping his authority.  However, this approach is highly likely to result in immediate litigation that could result in judicially imposed limitations on these authorities (as aggrieved parties seek redress in the courts) and may well prompt congressional efforts to amend these authorities if the Republicans lose one or both houses of Congress in the 2026 midterm elections.

Top Takeaways from the “Week One” Executive Trade Actions

Please refer to Gibson Dunn’s “Executive Order Tracker” for a complete and current listing of all the E.O.s issued by the Trump White House in the initial days of his second term, as well as Gibson Dunn’s Regulatory Outlook for International Trade Following the 2024 Election which details the firm’s broader post-election assessment of where Trump trade policy might be headed.

The list below contains a short description and categorization of executive trade actions as well as links to more in-depth analyses Gibson Dunn has undertaken on several individual executive actions.

I. Tariffs (and More): Not Yet Announced, But Major Changes Are Likely Given the Broad Trade Review Ordered

Possible U.S. tariffs have been a core issue as a second Trump Presidency loomed.  Despite candidate Trump’s indications that tariffs would be a “day one” event, as of the publication date of this alert there has been no change to U.S. tariffs.  However, we note that this situation could change at any time, and President Trump has continued to threaten potential tariffs against China, the EU, Canada, Mexico, Colombia and others, indicating he may seek to impose (or at least announce) some tariffs as early as February 1, 2025.

Through week one, however, Trump’s main tariff-related measures were contained in his “America First Trade Policy” memorandum issued on January 20, 2025, in which he directed parts of the Executive branch, including the Departments of State, Treasury, Commerce and Defense, the U.S. Trade Representative, and various other offices and agencies, to review numerous aspects of the U.S. trade landscape for economic, national security and others risks, and by April 1, 2025, to report back with any findings and recommendations for remedial action.  The Policy notes that such proposals could include tariffs but also a host of other possible approaches.  Importantly this memorandum contains no legally binding changes to trade policy.

The memorandum is very broad, but key sections of the memorandum require investigations of many trade-related issues, including the following:

  • The “causes of our country’s large United States annual trade deficit,” and (ominously) a recommendation of “appropriate measures, such as a global supplemental tariff”;
  • Foreign unfair trade practices and currency manipulation;
  • All existing U.S. trade agreements (including the United States-Mexico-Canada Agreement (USMCA)), as well as views on opportunities for new bilateral trade agreements;
  • A deep dive on various aspects of the economic and trade relationship with China;
  • Unlawful migration and fentanyl flows from Canada, Mexico, and the PRC;
  • A “full economic and security review of the United States’ industrial and manufacturing base”;
  • The U.S. import treatment of steel and aluminum;
  • The feasibility of and recommendations for implementing an “External Revenue Service (ERS) to collect tariffs, duties, and other foreign trade-related revenues”; and
  • The policies and regulations concerning the application of antidumping and countervailing duty (AD/CVD) laws.

In addition, the memorandum also calls for a wholesale reassessment of other major trade regulatory programs such as U.S. export controls, the rules covering U.S. outbound investment into China, and the recently announced rules regarding imports of “connected vehicles.”

II. Rescissions and Rule Moratorium

President Trump rescinded more than 70 E.O.s issued by previous administrations – including some that had been in place for decades.  He also declared a moratorium, pending further review by his appointees, on the issuance, proposal, or publication of any new regulatory rules.  Finally, he directed agencies to consider postponing for 60 days the effective date for any rules that have been published in the Federal Register or otherwise issued which have not taken effect.

While the freezing of such rules is not unusual for a new administration, the breadth of President Trump’s order (and our assessment that, due to vast policy differences between President Biden and President Trump, many such rules could in fact be radically altered) makes this an impactful (even if on its face technical) legally binding order.  As noted below, several of the rescission orders and rule moratoria have significant trade implications.

III. Broad Review Ordered, but Near-Term Uncertainty in Applicability of Certain U.S. Export Controls

President Trump’s America First Trade Policy memorandum describes trade policy as “a critical component to national security” that will be used to enhance the “industrial and technological advantages” of the United States, defend the United States’s “economic and national security,” and benefit “American workers, manufacturers, farmers, ranchers, entrepreneurs, and businesses.”  As part of this effort, the U.S. Secretaries of State and Commerce, in conjunction with other agency heads, are directed to “review the United States export control system and advise on modifications in light of developments involving strategic adversaries or geopolitical rivals as well as all other relevant national security and global considerations.”

What the Trump administration’s effort will ultimately entail is uncertain.  As a core question, it is unclear whether President Trump will continue the prior administration’s aggressive use of export controls to limit the abilities of geopolitical rivals to obtain access to and develop their own ability to manufacture technologies that are core to different emerging technologies such as the training of AI frontier models and quantum computing.

The memorandum specifically requires recommendations to “maintain, obtain, and enhance” the United States’ “technological edge” and to “identify and eliminate loopholes in existing export controls.”  These efforts are likely to focus on emerging technologies that pose a threat to national security, such as advanced semiconductors, quantum computing, connected devices, and other next generation technologies already under review by the Emerging Technology Division of the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) and partner agencies.

In its final weeks in office, the Biden administration issued a significant number of export controls-focused regulations imposing wide-ranging restrictions on advanced chips, connected vehicles, artificial intelligence (AI) diffusion, and related emerging technologies.  Though many of these regulations were accompanied by delayed compliance dates, the extensive obligations they impose – including worldwide, quota-metered, licensing requirements on the export of computing power and on the frontier AI models that are trained using this computing power – raised concerns across various industries and prompted questions concerning implementation.

Questions remain as to whether these individual regulations will be amended, repealed, or postponed considering Trump’s rescission of various Biden E.O.s and the issuance of the rule moratorium.

Significantly, despite President Trump’s recission of President Biden’s E.O. 14110 on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” and call for review of any actions thereunder, the Biden team’s Framework for Artificial Intelligence Diffusion regulations draw upon multiple additional authorities, including the Export Control Reform Act of 2018.  Consequently, the mere recission of E.O. 14110 is unlikely to singlehandedly spell the end of the proposed AI diffusion controls.

Moreover, the express policy drivers for the AI Diffusion Rule appear aligned with President Trump’s mandate to eliminate his perceived “loopholes” in U.S. export controls that may have enabled geopolitical rivals of the United States to obtain access to the computing power required to train AI models and his mandate to ensure that the United States maintains the technological edge in frontier AI model training.  Indeed, although Trump rescinded E.O. 14110, he also issued his own E.O. calling for several agencies to develop within 180 days a plan to “sustain and enhance America’s global AI dominance.”

What is even less clear, especially given President Trump’s willingness (and perhaps preference) to act unilaterally, is whether the Trump Administration will take steps to maintain the bespoke coalition of countries (core among them the Netherlands, Japan, and South Korea) that the Biden Administration created and which has been used to develop uniform controls on technologies that are foundational to the next generation of developments in frontier AI model training, quantum computing, and synthetic biology.

As the confirmation of President Trump’s political appointees progresses, we will gain a clearer picture of what the administration will prioritize in terms of export controls and related national security risks.  We assess that a focus on addressing emerging technologies that pose national security risks will likely be a throughline from the previous administration.  While President Trump will impose his own stamp on new and pending regulations, many of the geopolitical risks that shaped U.S. national security and technology policy during Trump’s first administration and Biden’s remain the same.

IV. Temporary Reprieve for TikTok

Reversing his hardline stance toward the popular social media company during his first term, President Trump directed the Attorney General not to take any action for 75 days to enforce the Protecting Americans from Foreign Adversary Controlled Applications Act (Pub. L. 118-50, div. H) which effectively banned the app in the United States on January 19, 2025, in order for his administration to confer with relevant stakeholders.  The first Trump administration E.O. banning TikTok was being challenged in U.S. courts at the time it was rescinded by the Biden administration in 2021.

Even so, and indicative of the uncertainty with which some in the business community have greeted some of the president’s pronouncements, despite the reprieve, as of the date of the memorandum, the availability of the TikTok app remains limited.

V. Economic Sanctions

Even as President Trump has stated his desire to use sanctions sparingly (and in one of his initial actions he even cancelled a sanctions program related to the West Bank), some of his initial actions and statements – including his Treasury nominee’s speaking of expanding sanctions on Russia during his confirmation hearings and President Trump’s threatening additional sanctions on Russian president Putin if he did not agree to negotiate an end to his war on Ukraine – suggest a likely continuation of his record-setting use of sanctions during his first term.

a. Potential (Re-)authorization of Sanctions Targeting the International Criminal Court

President Trump rescinded E.O. 14022, which had previously terminated E.O. 13928’s national emergency with respect to the International Criminal Court (ICC) and corresponding authorization of sanctions targeting the ICC’s personnel or persons determined to have provided material support to certain of its operations.  Importantly, no new sanctions were announced.

While it is unclear whether the rescission of E.O. 14022 equates to the reinstatement of E.O. 13928 – given the likely legal necessity that President Trump would have to redeclare the “national emergency” with respect to the Court, which is a prerequisite for such sanctions – additional action is likely necessary to reinstitute such sanctions.  While the absence of a newly promulgated emergency may be the basis for litigation if sanctions were to emerge now, not only could President Trump reissue an emergency with the stroke of a pen, but also the direction of travel against the ICC is clear.  This direction is supported by a Congress that has its own ICC sanctions bill that has passed the House and is awaiting Senate action – and which threatens the use of the very aggressive George W. Bush-era anti-ICC law, “Hague Invasion Act.”  The Trump administration is clearly no friend of the ICC and in the absence of any alteration in the Court’s policies and actions, we fully expect sanctions measures to be imposed against the Court and/or its various components, offices, and personnel.

b. Reinstatement of Cuba’s Designation as a State Sponsor of Terrorism

On January 20, President Trump reinstated Cuba’s designation as a State Sponsor of Terrorism (SST).  The Biden administration had rescinded Cuba’s designation as an SST less than a week earlier, pursuant to a Vatican-brokered agreement with the Cuban government.  Given the first Trump administration’s hawkish economic policy with respect to Cuba (the United States designated Cuba as an SST in the final days of the first Trump administration, on January 12, 2021), the reinstating of Cuba’s SST designation was broadly anticipated.

This action, coupled with the appointment of Senator Marco Rubio as Secretary of State, also presages further restrictive measures targeting Cuba.  As of this writing, the Treasury Department, Office of Foreign Assets Control’s (OFAC’s) May 2024 amendments to the Cuban Assets Control Regulations remain in effect (as do many aspects of President Obama’s broader easing of Cuba-related sanctions from his second term).  The new Trump administration may seek to roll back these and other accommodations toward Cuba.  This includes President Biden’s suspension of Title III of the Helms-Burton Act, which provides for private rights of action against parties deemed to be trafficking in formerly-U.S.- person owned property in Cuba that was nationalized under Castro.  During his first term, President Trump had revoked the suspension of that title, which had been in place under every administration since the act was passed in 1996 and led to a spate of lawsuits.  President Biden’s suspension meant that no new cases could be filed under Title III.  This is likely to change under the new administration.

Additionally, the Cuba Restricted List, initially implemented during the first Trump administration through National Security Presidential Memorandum 5 and later revoked by President Biden shortly before leaving office, may soon be reinstated.

c. Call for Addition of Drug Cartels to Terrorism Sanctions Lists

On January 20, President Trump signed an Executive Order paving the way for the designation of certain international cartels as Foreign Terrorist Organizations (FTO) and Specially Designated Global Terrorists (SDGT).  The order does not create any new blocked persons.  Rather, it directs the Secretary of State to “take all appropriate action” to identify cartels and other organizations described in the order within 14 days.  The order further directs the Attorney General and Secretary of Homeland Security to make “operational preparations” to implement any related invocations of the Alien Enemies Act, which is a controversial wartime power of the president to restrain and remove nonnaturalized persons within the United States who are “natives, citizens, denizens, or subjects of” a hostile nation.  Whether a president could use such powers during peacetime is virtually certain to raise judicial challenge.

The United States currently maintains the Counter Narcotics Trafficking Sanctions Program and regularly designates cartels, their members, and affiliates under various related authorities.  Indeed, all the largest cartels thought most likely to be the focus of this order are already sanctioned under these (and/or other) sanctions authorities maintained by OFAC.  Designating cartels and their affiliates as SDGTs would not alter their sanctioned status.

Adding the FTO designation would impose certain additional risks.  Specifically, designation as an FTO (1) renders representatives and members of the FTO, if they are not a U.S. citizen or U.S. national, inadmissible to the United States; (2) exposes persons subject to U.S. jurisdiction to criminal liability for knowingly providing “material support or resources” to the FTO; and (3) provides for certain private rights of action.  This E.O., therefore, is indicative of the President’s desire to use sanctions as a tool in furtherance of his immigration policy and in support of his border-related national emergency.  Some have already indicated that an FTO designation could implicate U.S. business interests in Mexico due to how integrated some of the cartels are into that country’s formal economy.

d. Potential Redesignation of Ansarallah as an FTO

On January 22, President Trump also issued an Executive Order that will put in motion the process to re-designate Ansarallah (also known as the Houthis) as an FTO by March 8, 2025.  Under the order, an FTO designation would take place at any point within a 15-day period (February 22 to March 8) that is set to follow a 30-day information-gathering period (January 23 to February 21).  Following Ansarallah’s designation as an FTO, the order further directs the Secretary of State and the Administrator of USAID to terminate any projects, grants, or contracts they identify as having involved entities that either made payments to Ansarallah and its affiliates or that “criticized international efforts to counter Ansar Allah while failing to document Ansar Allah’s abuses sufficiently.”

As noted in Gibson Dunn’s 2023 Year-End Sanctions and Export Controls Update, the Biden administration had previously designated Ansarallah as an SDGT—and de-listed the group as an FTO – principally due to concerns about the impact of the designation on humanitarian projects in Yemen.  Like the potential upcoming FTO designation, Ansarallah’s designation as an SDGT came with a 30-day delay.  However, unlike in the case of Ansarallah’s SDGT designation, OFAC has not yet issued general licenses or guidance that might provide NGOs comfort to continue providing lawful humanitarian assistance to the Yemeni people that may involve Ansarallah.  Given that an FTO designation carries more onerous restrictions than the SDGT designation, including possible criminal liability for parties that provide “material support” to such a group, there is a substantial risk that designating the Houthis as an FTO may once again deter humanitarian organizations from providing critical aid to the country.

VI. Pause of Foreign Aid

President Trump issued an Executive Order establishing a 90-day pause in U.S. foreign assistance pending “assessment of programmatic efficiencies and consistency with United State foreign policy.”  The policy applies to new obligations and disbursements of development assistance funds to foreign countries and implementing NGOs, international organizations, and contractors.  While it includes important carve outs for emergency food provisioning, the E.O. authorizes the Department of State, in consultation with the Office of Management and Budget (OMB), to issue guidelines for department and agency heads to review their respective foreign aid programs.

Practically, the pause is designed principally to review existing foreign aid programs (which does not necessarily imply their elimination and/or wind-down).  Still, the purpose of the policy freeze outlined in section 1 of the E.O. strongly suggests a shift toward a reconsidering of, and potentially an elimination or limiting of, certain foreign aid programs.  The U.S. government currently maintains foreign aid programs related to over 200 countries, valued in total at USD $68 billion, a substantial part of which is allocated to Ukraine.

VII. Possible Expansion of Outbound Investment Regime

The America First Trade Policy memorandum also calls for a review of the recently implemented program regulating outbound U.S. investments involving Chinese persons operating in certain high-tech sectors and activities effective as of January 2, 2025.  Specifically, the memorandum calls for a review of E.O. 14105, which provided the basis for the program as well as the final implementing rule.  Our previous client alert provided a detailed overview of this new regulatory regime.

Likely responding to congressional interest in legislation expanding the types of industries subject to the program’s control (and in line with the President’s clear preference to take control of the policy narrative by undertaking executive actions rather than being subjected to congressional mandates), the America First Trade Policy memorandum mandates the Department of the Treasury to assess whether the current controls in the outbound investment regulations are sufficient to address national security interests, and to make recommendations for any further modification by April 1, 2025.

The new outbound investment regime has already created significant compliance challenges as companies and financial institutions grapple with ways to implement and adjust policies, procedures, and corporate agreements to comply with the new rules and account for shifting legal and commercial risk profiles and appetites.  It is likely these compliance concerns will multiply post-April 2025.

The Gibson Dunn team is closely following these developments and will be publishing more analysis as the situation develops.  In the meantime, Gibson Dunn lawyers stand ready to answer any questions as companies and organizations navigate the new policy environment.


The following Gibson Dunn lawyers prepared this update: Adam M. Smith, Ronald Kirk, Donald Harrison, David Wolber, Christopher T. Timura, Stephenie Gosnell Handler, Samantha Sewall, Audi Syarief, Chris Mullen, Lindsay Wardlaw, Mason Gauch, Zach Kosbie, Karsten Ball, Hui Fang, and Soo-Min Chae.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. For additional information about how we may assist you, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or the following leaders and members of the firm’s International Trade practice group:

United States:
Ronald Kirk – Co-Chair, Dallas (+1 214.698.3295, [email protected])
Adam M. Smith – Co-Chair, Washington, D.C. (+1 202.887.3547, [email protected])
Stephenie Gosnell Handler – Washington, D.C. (+1 202.955.8510, [email protected])
Donald Harrison – Washington, D.C. (+1 202.955.8560, [email protected])
Christopher T. Timura – Washington, D.C. (+1 202.887.3690, [email protected])
David P. Burns – Washington, D.C. (+1 202.887.3786, [email protected])
Nicola T. Hanna – Los Angeles (+1 213.229.7269, [email protected])
Courtney M. Brown – Washington, D.C. (+1 202.955.8685, [email protected])
Amanda H. Neely – Washington, D.C. (+1 202.777.9566, [email protected])
Samantha Sewall – Washington, D.C. (+1 202.887.3509, [email protected])
Michelle A. Weinbaum – Washington, D.C. (+1 202.955.8274, [email protected])
Karsten Ball – Washington, D.C. (+1 202.777.9341, [email protected])
Hugh N. Danilack – Washington, D.C. (+1 202.777.9536, [email protected])
Mason Gauch – Houston (+1 346.718.6723, [email protected])
Chris R. Mullen – Washington, D.C. (+1 202.955.8250, [email protected])
Sarah L. Pongrace – New York (+1 212.351.3972, [email protected])
Anna Searcey – Washington, D.C. (+1 202.887.3655, [email protected])
Audi K. Syarief – Washington, D.C. (+1 202.955.8266, [email protected])
Scott R. Toussaint – Washington, D.C. (+1 202.887.3588, [email protected])
Lindsay Bernsen Wardlaw – Washington, D.C. (+1 202.777.9475, [email protected])
Shuo (Josh) Zhang – Washington, D.C. (+1 202.955.8270, [email protected])

Asia:
Kelly Austin – Denver/Hong Kong (+1 303.298.5980, [email protected])
David A. Wolber – Hong Kong (+852 2214 3764, [email protected])
Fang Xue – Beijing (+86 10 6502 8687, [email protected])
Qi Yue – Beijing (+86 10 6502 8534, [email protected])
Dharak Bhavsar – Hong Kong (+852 2214 3755, [email protected])
Arnold Pun – Hong Kong (+852 2214 3838, [email protected])

Europe:
Attila Borsos – Brussels (+32 2 554 72 10, [email protected])
Patrick Doris – London (+44 207 071 4276, [email protected])
Michelle M. Kirschner – London (+44 20 7071 4212, [email protected])
Penny Madden KC – London (+44 20 7071 4226, [email protected])
Irene Polieri – London (+44 20 7071 4199, [email protected])
Benno Schwarz – Munich (+49 89 189 33 110, [email protected])
Nikita Malevanny – Munich (+49 89 189 33 224, [email protected])
Melina Kronester – Munich (+49 89 189 33 225, [email protected])
Vanessa Ludwig – Frankfurt (+49 69 247 411 531, [email protected])

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