The Cable

Can Congress Block Trump if He Pulls Out of NAFTA?

The president claims the decision is his to make. Lawmakers and legal scholars aren’t so sure.

President Donald Trump speaks at a rally on June 21 in Cedar Rapids, Iowa. Trump spoke about renegotiating NAFTA and building a border wall that would produce solar power during the rally.  (Scott Olson/Getty Images)
President Donald Trump speaks at a rally on June 21 in Cedar Rapids, Iowa. Trump spoke about renegotiating NAFTA and building a border wall that would produce solar power during the rally. (Scott Olson/Getty Images)

The future of the North American Free Trade Agreement (NAFTA) hangs in the balance as the latest round of negotiations between the United States, Mexico, and Canada wraps up Tuesday. U.S. President Donald Trump has set out impossible-to-meet demands for Canada and Mexico, and he has threatened to walk away from the nearly 25-year-old trade pact if those countries don’t play ball.

But it may not be that easy — Congress, not the president, may have the ultimate authority to unwind a big trade deal. Numerous lawmakers and legal scholars believe that full withdrawal from NAFTA would require Congressional approval — or at the very least, lead to lengthy court battles that could delay the U.S. departure for years.

U.S. trade negotiators have come to the latest round of talks with tough demands, including that the agreement be re-ratified every five years; that half of all automotive components be built in the United States, not in the other countries; and that it scraps the investor dispute settlement system that Mexico and Canada both like. Both those countries have categorically rejected the proposals, calling them “red lines,” and vowed to walk away from the negotiating table.

That uncertainty over the future of NAFTA is spooking financial markets, killing the Mexican peso, angering major industries in all three countries, and worsening relations between the United States, Canada, and Mexico. Dismantling the pact would require rebuilding global supply chains and would mean a return to tariffs on goods the United States imports and exports — all of which would be painful.

That’s tempting some members of Congress to step in before major economic damage is done.

On Sunday, U.S. Rep. Richard Neal (D-Mass.), ranking member of the House Ways and Means Committee, suggested that Congress had the power to inhibit withdrawal from NAFTA. If the president “even suggests that the United States should leave NAFTA, to undo that relationship, you would have to go back to Congress,” Neal said in an interview on Canadian television. “And that would be a much more difficult task for him.”

Neal’s assertion isn’t unfounded. A May 2017 report from the Congressional Research Service notes that the president clearly has the authority to end U.S. participation in international agreements, and NAFTA allows member countries to withdraw if they give six months’ notice to the other members. But, the report notes, “Despite the President’s ability to withdraw from the agreement, the repeal of statutory provisions implementing NAFTA would likely require congressional assent.”

Those statutory provisions refer to the NAFTA Implementation Act, the piece of legislation that actually put NAFTA provisions into force by ending tariffs and taking other measures. The president has no power to unilaterally undo a congressional statute; that would require an act of Congress. Under that reading, even if Trump were able to technically withdraw from NAFTA, the agreement’s trade provisions would largely remain in force.

There is no consensus among legal scholars, though.

Joel Trachtman, a professor of international law at Tufts University, argues that Trump cannot terminate U.S. participation in a foreign trade agreement without the consent of Congress. He cites the 1994 Supreme Court case Barclays v. California, which held that “the Constitution expressly grants Congress, not the President, the power to ‘regulate Commerce with foreign Nations.’”

“The president doesn’t have power to unilaterally withdraw the United States from trade agreements, including NAFTA,” Trachtman told Foreign Policy. “He could do it with congressional authorization, but there is no congressional authorization that currently exists.”

Jon Johnson, who advised the Canadian government on NAFTA negotiations in the 1990s, agrees. “Since NAFTA was approved by Congress under the authority expressly granted to Congress under the Commerce Clause, it follows that only Congress has the power to reverse that approval and cause the United States to withdraw from NAFTA,” he wrote in a January report.

But other scholars disagree. Michael Ramsey, a professor at the University of California San Diego School of Law, told Bloomberg, “The president generally has the ability to withdraw the United States from international agreements — that’s part of his constitutional executive power in foreign affairs.”

Trachtman recommends Congress take preemptive action to remove that uncertainty.

“If President Trump proposes to give notice to terminate NAFTA without congressional approval, U.S. exporters, and U.S. consumers, and perhaps also U.S. members of Congress, should sue,” he wrote in May for The Hill.

“Before we reach that point, Congress could pass legislation specifically denying the president authority to terminate these trade agreements, in order to avoid uncertainty. It has the power, and the responsibility, to do so.”

There are other ways to prevent a NAFTA withdrawal from taking effect as well.

“General Motors or a member of Congress could bring a lawsuit — similar to his bans on certain immigrants,” Trachtman told FP. “A court could issue an injunction saying, ‘Don’t do it.’”

Bethany Allen-Ebrahimian is a contributing writer at Foreign Policy. @BethanyAllenEbr

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