NAFTA

Nixing NAFTA: Trump Might Not Have as Much Power as He Thinks

Congress may have final say on the trade deal.

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Al Drago/CNP/AdMedia/Newscom

President Donald Trump has made it clear he's willing to terminate the North American Free Trade Agreement, but legal experts aren't sure he has the authority to do so.

Under the U.S. Constitution, Congress is given the power to "regulate commerce with foreign nations," suggesting it has the a final decision on NAFTA. Article II of the Constitution, however, grants the president the power to conduct foreign policy.

Is NAFTA is a foreign or commerce treaty? Most legal academics believe the power should reside with Congress, according to Scott Lincicome, adjunct scholar at the Cato Institute, a free market think tank based in Washington, D.C.

NAFTA is technically a congressional-executive agreement and not a treaty, leading some to believe that it falls under congressional power to regulate foreign commerce.

"The thinking on this is, look, this isn't a standard treaty that falls far more clearly under the foreign affairs powers of the president and constitutional provisions on treaties," Lincicome said at a recent Cato event.

To justify his potential executive action, Trump has pointed to NAFTA's Article 2205, which says the country can withdraw from the trade agreement in six months after providing written notice.

Yet Bill Reinsch, a distinguished fellow at the Stimson Center, expressed skepticism in remarks made at Cato recently that Trump alone can trigger Article 2205.

"The [NAFTA] statute is quite clear that the United States could withdraw, but the statute doesn't go beyond saying who the United States is." Reinsch said.

The issue of withdrawal is written ambiguously into NAFTA. It does not speak to whether the legislative or the executive branch has the power to take that first step.

Even if Congress has the final authority on pulling out, the president has significant control over other aspects of the treaty, and could do significant damage to the deal, Jon R. Johnson, a senior fellow at the CD Howe Institute, a Canadian policy think tank, wrote in January.

Johnson, an advisor on international trade to the Canadian government during the original NAFTA negotiations, said that when Congress approved NAFTA in 1993, it left enforcement of tariffs to then-President Bill Clinton. Johnson believes that given the track record of Congress in delegating authority to the executive branch, Trump could raise tariffs.

"Congress has delegated powers to the president to act unilaterally to address national emergencies and balance-of-payments and national security situations. These powers include the ability to raise tariffs and to adopt other border measures." Johnson wrote.

Ultimately, Trump may have to settle for halfway measures, and not because the legal arguments could prove difficult. Terminating NAFTA would be controversial. According to a Gallup Poll, 48 percent of Americans support the trade agreement. Only six percent favor outright withdrawal.

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  1. “Congress has delegated powers to the president to act unilaterally to address national emergencies and balance-of-payments and national security situations….

    Referring to a feckless group of individuals who have repeatedly shirked their sworn duties is not, in my opinion, a sound manner in which to decide Constitutional precedent.

    1. So? A Democratic Republic isn’t doesn’t always make sound decisions. But it does have rules by which it is empowered to make those decisions. Given that some of our worst decisions tend to be constitutionally questionable (starting wars without congressional approval, executive orders of all stripes, etc) it seems a might bit better to me to adhere to those rules wherever possible, rather than leave it to one executive with total power to direct the international trade of the country.

      From a political perspective, this looks only to create more GOP on GOP friendly fire.

  2. legal experts aren’t sure he has the authority to [terminate the North American Free Trade Agreement]

    I put it to you, legal “experts”: does he not have a pen? Does he not have a telephone?

    I rest my case.

    1. “My pen is the best. Here, let me show it to you.”


  3. “The [NAFTA] statute is quite clear that the United States could withdraw, but the statute doesn’t go beyond saying who the United States is.” Reinsch said.


    The issue of withdrawal is written ambiguously into NAFTA. It does not speak to whether the legislative or the executive branch has the power to take that first step.

    Umm…well that sounds like a faulty document then. Why not renegotiate NAFTA when it’s a managed trade deal? Are you telling me nothing has changed since circa 1990 that might warrant looking into that option?

    1. It’s an international agreement, so I’m not surprised it didn’t specify how each country goes about withdrawing. I do agree that should have been addressed by Congress at the time. Or perhaps we need a constitutional amendment to more clearly spell out the process for these things. My feeling is that the default should be that withdrawal requires the same process that entering it took. So if the agreement was entered into with congressional approval, congressional approval should be required to withdraw.

      Do you really trust Trump to “renegotiate” NAFTA in a way that improves it?


      1. Do you really trust Trump to “renegotiate” NAFTA in a way that improves it?

        Considering I didn’t trust the Clinton administration to negotiate it in the first place, I honestly don’t know anymore. Maybe?

        1. It wasn’t negotiated by Clinton. It was negotiated by George H. W. Bush.

          NAFTA
          Following diplomatic negotiations dating back to 1990 among the three nations, U.S. President George H. W. Bush, Canadian Prime Minister Brian Mulroney and Mexican President Carlos Salinas signed the agreement in their respective capitals on December 17, 1992.[14] The signed agreement was then ratified by each nation’s legislative or parliamentary branch.
          After much consideration and emotional discussion, the House of Representatives passed the North American Free Trade Agreement Implementation Act on November 17, 1993, 234?200. The agreement’s supporters included 132 Republicans and 102 Democrats. The bill passed the Senate on November 20, 1993, 61?38.[15] Senate supporters were 34 Republicans and 27 Democrats. Clinton signed it into law on December 8, 1993; the agreement went into effect on January 1, 1994.

      2. Do you really trust Trump to “renegotiate” NAFTA in a way that improves it?

        No, I don’t. I don’t think he’s very good at his job as President and it’s likely he’d make a mess of any treaty or trade agreement that he tries to “renegotiate” such that any minor gains would be eaten up by the disruptions caused by his ham-fisted handling of it. Moreover, I think Mr. Trump’s idea of what would be “improve” NAFTA would be making it easier for countries to put up more trade barriers to imports from the other countries whereas my idea of how to “improve” NAFTA would be to further reduce the barriers that it leaves in place.

    2. It does sound like it was drafted sloppily. But if it was meant to be an actual treaty, then the ambiguity about who in the United States can cancel it would be understandable. Was it intended to be a treaty, but was unable to get the required 2/3 Senate approval? So instead it became an “agreement” that needed only simple majorities in both houses? Do Canada and/or Mexico consider NAFTA to be a treaty?

  4. “NAFTA is technically a congressional-executive agreement and not a treaty, leading some to believe that it falls under congressional power to regulate foreign commerce.”

    If it’s not a treaty, then it’s invalid from the very beginning and should be renounced for that reason.

    1. NAFTA was challenged at least twice to the Supreme Court but they did not want to get involved so they said that the the plaintiffs had no standing. Only a majority of Congress would have standing and since a majority voted for NAFTA then it was not overturned.

      This is even though the Constitution clearly says that Treaties must be passed by 2/3 of the Senate. But the Constitution is just a piece of paper which the Supreme Court and Congress don’t think they need to follow

      1. The title of the the North American Free Trade Agreement is “The North American Free Trade Agreement”.
        It is not a treaty, it is an “Agreement”. And it is an act of Congress, passed by the legislatures of all three countries and signed into law by their respective executive branches. So basically, it is US law, which has to be repealed by an act of congress.

        Nyah. Nyah.

        1. What happened to the pen and phone method?

        2. But if the Constitution says that treaties must be ratified by a 2/3 vote in the Senate and since a treaty is just an agreement between two or more countries then how can Congress make agreements with foreign countries without calling them a treaty and getting a 2/3 vote in the Senate?

          The Constitution says that Senators have a 6 year term in office, can they just declare that a Senate Year equals two years and then be in office for 12 years without being reelected?

          1. For goodness’ sake, don’t give them ideas.

          2. how can Congress make agreements with foreign countries without calling them a treaty and getting a 2/3 vote in the Senate?

            Congress can pass laws by majority vote, can’t it? The “agreement” is just a bunch of irrelevant words coming out of the mouths of political leaders. The fact that a bunch of foreign and domestic politicans said a bunch of stuff doesn’t negate the ability of Congress to regulate foreign commerce. It’s sort of a flaw in the constitution that simply calling something that can be done unilaterally by congress anyway a “treaty” suddenly means it requires a 2/3 vote. The framers obviously didn’t think that one through completely.

  5. “Nixing NAFTA: Trump Might Not Have as Much Power as He Thinks”

    Trump has the power

    1. Why do people keep linking to this fucking song?

      1. Technically, it’s just me doing the same link over and over.

        1. Does that annoy you? Huh? Does that annoy you?

        2. Okay. I wasn’t sure if it was always you. Then my question remains only slightly altered. Why? Why?

          1. Because I’m annoying?

            1. Anyway, the song gives me an unwarranted self-confidence and self-esteem, what’s not to like?

              1. It reminds me of our country’s darkest hour. A time when Nu-Metal and Third Eye Blind roamed freely and without censure.

  6. Now you see the genius of Obama, who just made international deals without no help from no congress.

  7. If it is a treaty, the president has unilateral authority to nix it. Confirmed by SCOTUS when Jimmy Carter tried to throw Taiwan under the Commie bus.

    1. So, it seems this is not a treaty anyway. Hum, who is in charge of the enforcement branch of the federal government and what if they don’t want to enforce it? Damn, this is a tough one.

  8. Terminating NAFTA would be controversial. According to a Gallup Poll, 48 percent of Americans support the trade agreement. Only six percent favor outright withdraw.

    What percentage favor renegotiating the deal in order to get more favorable terms? Since that seems to be President Trump’s position, I’d be curious to see how many people favor that. Personally I think NAFTA has been a net plus for the United States and while it’s possible we could get better terms than what the Bush 41 and Clinton administrations negotiated, I’m not convinced that Trump is up to the task and it’s just as likely that the chaos he’d cause would eat up any gains we’d get from renegotiating the deal.

    1. The other problem is “more favorable terms” is a very vague statement.

      1. Yes. To some people it means “you open your markets to our products more”. To Trump it means “we close our markets to your products more”.

  9. Where were these ‘legal experts’ when Obo decided to hand out money to medical insurance companies?

  10. As always, the question isn’t really “does he have the authority”. It’s “would congress stop him”?

    Maybe I’m just a cynic, but I doubt that a Republican-lead congress would sue the president to assert it’s authority on the issue. It’s possible that individual legislators (or a band of them) could argue that they individually have standing, but especially if the majority half of congress argues that they don’t, I don’t see that going well regardless of merits.

    In short: whether or not President Trump technically has the authority to withdraw from NAFTA, he probably has the effective authority to do so.

    1. He has the authority and Congress won’t stop him.

      1. I stand corrected by HM above.

  11. As noted above, NAFTA was implemented not by ratifying the agreement itself, but by Congress passing a bill North American Free Trade Agreement Implementation Act (emphasis added). The bill amends US law to bring US law into conformity with the agreement.

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