{"id":9805,"date":"2017-08-19T23:24:07","date_gmt":"2017-08-19T23:24:07","guid":{"rendered":"http:\/\/www.lifeandnews.com\/articles\/?p=9805"},"modified":"2017-08-20T23:27:18","modified_gmt":"2017-08-20T23:27:18","slug":"trumps-threat-to-withdraw-from-nafta-may-hit-a-hurdle-the-us-constitution","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/trumps-threat-to-withdraw-from-nafta-may-hit-a-hurdle-the-us-constitution\/","title":{"rendered":"Trump’s threat to withdraw from NAFTA may hit a hurdle: The US Constitution"},"content":{"rendered":"

Tim Meyer<\/a>, Vanderbilt University<\/a><\/em><\/span><\/p>\n

On Aug. 16, representatives of the U.S., Canada and Mexico formally begin renegotiating the North American Free Trade Agreement<\/a> (NAFTA), an accord that has governed matters of trade and security on the continent for 23 years. <\/p>\n

President Donald Trump has repeatedly threatened<\/a> to withdraw the United States from NAFTA and similar trade agreements if other nations are unwilling to renegotiate to terms he likes.<\/p>\n

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. <\/p>\n

Our country\u2019s founding document places limits on a president\u2019s ability to cease complying with the provisions of a U.S. trade agreement \u2013 absent congressional approval. <\/p>\n

\n \"\"
\n President Trump met with Mexican President Enrique Pena Nieto at the G20 Summit in Hamburg in July.<\/span>
\n AP Photo\/Evan Vucci<\/span><\/span>
\n <\/figcaption><\/figure>\n

A perfect negotiating strategy<\/h2>\n

The U.S. recently released its objectives<\/a> for renegotiating NAFTA. The threat to withdraw if those objectives are not met is an element of the U.S. negotiating strategy that deserves attention. <\/p>\n

President Trump comes to the table after repeatedly declaring his intention to scrap NAFTA during the campaign<\/a> and reportedly going as far as<\/a> to prepare an executive order in April to begin withdrawal.<\/p>\n

Despite the apparent change of heart, he insists that he stands prepared<\/a> to terminate NAFTA if he is \u201cunable to make a fair deal.\u201d <\/p>\n

Although NAFTA has been the main target of Trump\u2019s displeasure, it\u2019s not the only one. <\/p>\n

The president said roughly the same thing<\/a> about the U.S.-South Korea Free Trade Agreement<\/a> (known as KORUS), declaring that \u201cwe are going to renegotiate that deal or terminate it.\u201d<\/p>\n

From a negotiating standpoint, threatening to withdraw makes perfect sense. If the United States isn\u2019t willing to opt out of a trade deal, other nations have little incentive to offer a better one. The issue is murkier, however, from a legal perspective. <\/p>\n

The Constitution is oddly silent on the question of how the United States ends its international commitments. Most foreign relations lawyers believe that the president has the authority to withdraw from treaties without congressional consent<\/a>, and presidents of both parties have acted on that basis. <\/p>\n

But trade agreements are different from, say, defense agreements, where the courts have declined to restrain the president\u2019s unilateral termination power. The Constitution plainly assigns power over the policy areas covered by trade agreements \u2013 foreign trade and tariffs (taxes levied on imported goods) \u2013 to Congress, not the president.<\/p>\n

\n \"\"
\n This photo made available by the U.S. National Archives shows a portion of the first page of the United States Constitution.<\/span>
\n National Archives via AP<\/span><\/span>
\n <\/figcaption><\/figure>\n

Constitutional limits<\/h2>\n

Article I, Sec. 8 of the Constitution provides<\/a> that \u201cCongress shall have the power to lay and collect taxes, duties, imposts and excises\u201d and \u201cregulate commerce with foreign Nations.\u201d Congress uses these powers to pass legislation that translates each trade agreement into federal law. <\/p>\n

To be sure, since the 1930s Congress has used these laws<\/a> to delegate responsibility for setting tariffs to the president. The NAFTA Implementation Act<\/a>, for example, is a federal law that grants the president the authority to set tariffs in accordance with the terms of NAFTA. <\/p>\n

But even if the United States were no longer bound by NAFTA as an international agreement, the NAFTA Implementation Act would remain on the books unless Congress repealed it. The president would thus likely still be bound by federal law to set tariffs that complied with NAFTA.<\/p>\n

If NAFTA ceased to exist, wouldn\u2019t the legislation that assumes NAFTA is in place also lose its force? The legislation implementing more recent free trade agreements says as much explicitly. For example, the statute that implements KORUS states that it \u201cshall cease to have effect\u201d<\/a> on the date that KORUS itself terminates. <\/p>\n

The thing is, the Supreme Court has held this kind of provision unconstitutional. In Clinton v. New York<\/a>, the Supreme Court ruled that Congress cannot delegate to the president the authority to unilaterally repeal a statute. That case struck down the Line Item Veto Act<\/a>, which allowed the president sign a bill into law but then unilaterally \u201ccancel\u201d individual spending measures within the new law. <\/p>\n

The same logic should apply to trade agreements. 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. <\/p>\n

In other words, even if the United States leaves NAFTA, the president will still be bound to implement the agreement\u2019s rules on the terms dictated by Congress until Congress says otherwise. <\/p>\n

Doubts on delegation<\/h2>\n

President Trump might have another problem too. <\/p>\n

The Constitution explicitly gives Congress the power to set tariffs and govern foreign commerce. Congress, in turn, usually delegates this authority to set tariff rates to the president. The constitutional \u201cnondelegation doctrine<\/a>,\u201d however, requires that Congress establish standards to guide the president\u2019s choices when he exercises delegated authority. <\/p>\n

A growing number of judges and commentators have urged the courts to more strictly enforce the nondelegation doctrine<\/a>. Most notably, President Trump\u2019s appointee to the Supreme Court, Neil Gorsuch (for whom, in full disclosure, I clerked), has expressed skepticism about the breadth of some congressional delegations<\/a>. <\/p>\n

Requiring that tariffs (or other trade policies) be set in accordance with trade agreements like NAFTA satisfies the nondelegation doctrine. But if the president can evade the standards Congress has imposed by withdrawing from trade agreements, then arguably Congress has violated the Constitution by failing to sufficiently constrain the president\u2019s authority. <\/p>\n

In other words, laws like the NAFTA Implementation Act that implement trade agreements could be unconstitutional if the president were free to ignore them. To avoid this constitutional problem, courts would likely require that Congress act before the president can cease complying with the laws that implement U.S. trade agreements. <\/p>\n

A better strategy<\/h2>\n

President Trump, of course, has other tools at his disposal to increase pressure on our trading partners to renegotiate trade deals. <\/p>\n

He can use the rules and institutions of trade agreements themselves to challenge unlawful trade practices, as the administration has already announced it intends to do<\/a> at the World Trade Organization.<\/p>\n

But if he is serious about the threat of withdrawal, the president\u2019s best strategy may be to seek legislation authorizing him to retaliate against our trading partners if negotiations are not successful. <\/p>\n

\"TheThat legislation may be difficult to get through a Congress that is generally pro-free trade. But elements in both parties seem to have an appetite for rethinking what trade agreements should look like. And the president has defied expectations before.<\/p>\n

Tim Meyer<\/a>, Professor of Law, Vanderbilt University<\/a><\/em><\/span><\/p>\n

This article was originally published on The Conversation<\/a>. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Tim Meyer, Vanderbilt University On Aug. 16, representatives of the U.S., Canada and Mexico formally begin renegotiating the North American Free Trade Agreement (NAFTA), an accord that has governed matters of trade and security on the continent for 23 years. President Donald Trump has repeatedly threatened to withdraw the United States from NAFTA and similar […]<\/p>\n","protected":false},"author":44,"featured_media":9806,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[5,277],"tags":[2292,1011,1336,1885,2970,2971,1558,1561,686,2296],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/9805"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=9805"}],"version-history":[{"count":1,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/9805\/revisions"}],"predecessor-version":[{"id":9807,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/9805\/revisions\/9807"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/9806"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=9805"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=9805"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=9805"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}