On many occasions President Trump has threatened to terminate the North American Free Trade Agreement (NAFTA), or as he calls it, “the catastrophe known as NAFTA.” Many legal experts believe that just as a President cannot enter into a new trade agreement without congressional approval, he also cannot withdraw from an existing trade agreement without congressional approval. Aside from any misunderstanding the administration may have about how Americans benefit from NAFTA, any attempt to terminate it without congressional approval would likely trigger a lawsuit and possibly could lead to an embarrassing loss for the Trump administration.
Joel P. Trachtman, Professor of International Law, The Fletcher School of Law and Diplomacy:
There are some interpretative arguments to the effect that Congress has implicitly authorized the President to terminate trade agreements, for example, by approving the NAFTA agreement which includes a termination clause, but they seem unpersuasive because (i) that termination clause explicitly gives the U.S., not the President, the right to terminate, and (ii) Congress explicitly delegated other powers to the President and meticulously avoided delegating termination power to him.
It would be inconsistent with the Constitution’s clear assignment of power to regulate commerce to Congress to accord the President broad power to regulate, or re-regulate, commerce through a unilateral termination power.1
Timothy Meyer, Professor of Law, Vanderbilt University:
Whether you agree with him or not, his threat to unilaterally back out of NAFTA and other trade deals on his hit list may be a hollow one for a simple reason: the U.S. Constitution. Our country’s founding document places limits on a president’s ability to cease complying with the provisions of a U.S. trade agreement [implemented by Congress] – absent congressional approval.
The president may very well be able to withdraw from international agreements like NAFTA and KORUS without further congressional authorization. But the president cannot constitutionally ignore or cancel the domestic laws passed by Congress simply by withdrawing from an international commitment. In other words, even if the United States leaves NAFTA, the president will still be bound to implement the agreement’s rules on the terms dictated by Congress until Congress says otherwise.2
John B. McNeece III, Senior Fellow, UC San Diego Center for U.S.-Mexican Studies:
Congressional approval of a trade agreement such as NAFTA by means of legislation signed by the President presents the quintessential case of Congress acting to regulate Commerce with foreign Nations and to lay duties and imposts. By unilaterally withdrawing from NAFTA without authorization from Congress, the President would be infringing on Congress’ constitutional powers and overturning legislation passed pursuant to those powers.
A lawsuit challenging President Trump’s unilateral termination of NAFTA would certainly be heavily contested. Nevertheless, such a lawsuit would be well-founded in U.S. laws and the Constitution.3
Paul J. Larkin Jr., Senior Legal Research Fellow, Institute for Constitutional Government, The Heritage Foundation:
Article I does not refer to Congressional-Executive Agreements. Instead, it refers to Bills, Orders, Resolutions, and anything else that can become law only if it passes through the Bicameralism and Presentment requirements of Section 7. Only what satisfies those requirements can become a “Law,” which is the critical term. The Framers cared less about what an X was called than about how that X could become a “Law.” So, if both Houses of Congress pass the same version of such an agreement and the President signs it, the X becomes a “Law” regardless of what label it had beforehand. If a Free Trade Agreement went through the Bicameralism and Presentment process and the president signed it, it is a “Law,” and the president cannot disregard it.4
Julian Ku, law professor, Hofstra University Law School, and John Yoo, law professor, UC Berkeley and visiting scholar, American Enterprise Institute:
Like all modern trade pacts, NAFTA is a congressional-executive agreement created by statute, not treaty. Trump cannot terminate it — or even renegotiate it — without the approval of Congress.
Whether the United States should leave NAFTA is an issue open to political debate. But who gets to decide to leave is not. The Constitution requires that the president and Congress must jointly agree whether to leave NAFTA.5
Nowhere in U.S. statute is there any explicit delegation of authority to the President to unilaterally withdraw from a trade agreement. Although legal experts are divided on what would happen if the administration attempted to terminate NAFTA anyway, it would be no surprise if the end result was an awkward -- if not humiliating -- legal defeat.
1. Joel Trachtman, Professor of International Law, The Fletcher School of Law and Diplomacy, “Can President Trump Terminate NAFTA or KORUS Without Congressional Approval?,” Econofact, November 7, 2017, https://econofact.org/can-president-trump-terminate-nafta-or-korus-without-congressional-approval.
2. Tim Meyer, Professor of Law, Vanderbilt University, “Trump’s threat to withdraw from NAFTA may hit a hurdle: The US Constitution,” The Conversation, August 15, 2017, https://theconversation.com/trumps-threat-to-withdraw-from-nafta-may-hit-a-hurdle-the-us-constitution-81444.
3. John B. McNeece III, Senior Fellow, UC San Diego Center for U.S.-Mexican Studies, “Congress Must Approve a Withdrawal from NAFTA,” https://usmex.ucsd.edu/_files/nafta-essays-mcneece.pdf.
4. Paul J. Larkin Jr., Senior Legal Research Fellow, Institute for Constitutional Government, The Heritage Foundation, email dated August 7, 2017.
5. Julian Ku, law professor, Hofstra University Law School, and John Yoo, law professor, UC Berkeley and visiting scholar, American Enterprise Institute, “Trump might be stuck with NAFTA,” Los Angeles Times, November 29, 2016, https://www.latimes.com/opinion/op-ed/la-oe-yoo-ku-trump-nafta-20161129-story.html.