While corporations do not enjoy unfettered freedom—they are constrained by legal, political, and social requirements and expectations—governments must have legitimate grounds when they compel corporations to act. After investigating the nationwide semiconductor shortage, the U.S. Secretary of Commerce warned that the government might invoke national security to compel semiconductor producers to disclose sensitive business information. The government has also invoked national security to justify extensive tariffs imposed on imported steel and aluminum products, leading to a major trade dispute. Years of neoliberal policy have created a perceived (though not necessarily functional) separation between government and industry. This separation encourages and, to some extent, necessitates the government to invoke the most compelling reasons, such as national security grounds, to justify its interventions with private industry.
This article explains the inherent risks of such national security invocations to corporate freedom and international trade. It presents an alternative approach, under which corporate interests and government industrial policy can be better aligned. The role of government in the economy and private industry must be reconsidered. Adopting a new approach will facilitate a mutually beneficial partnership between government and industry, helping to avoid inappropriate recourse to national security obligations for commercial purposes in domestic and international contexts. This proposed partnership will not be inconsistent with the preservation of corporate autonomy and freedom but will actually help to preserve these interests when government interventions are inevitable to address national economic issues such as the semiconductor shortage.
National Security as a Means to a Commercial End: Call for a New Approach,
102 Neb. L. Rev. 1
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