Can President Trump Withdraw the US From NAFTA?

Word is circulating in Washington, DC that President Trump is considering withdrawing the United States from the North American Free Trade Agreement between the US, Canada, and Mexico. While it’s not clear whether he will (Republicans are reportedly urging Trump not to withdraw from the agreement) or why he is considering such a move (does he really want the US out of NAFTA or is this just a brinksmanship-like move to try to create better negotiating terms and win conditions more favorable to the US?), it’s also unclear whether the president can, in fact, unilaterally terminate the US’s participation in the agreement.

The Constitution, which specifies the process by which the US joins a treaty (negotiated and signed by the president and subjected to advice and consent by two-thirds of the Senate) is silent on the issue of treaty termination. However, it is (more or less) well-established that the president can, subject to the specific termination language in each agreement, withdraw the US from agreements without Senate consultation. President Carter withdrew the US from a mutual defense treaty with Taiwan and President Bush withdrew the US from the 1972 Ant-Ballistic Missile Treaty, both without any role for the Senate.

But, NAFTA is not a treaty; rather, it is a congressional-executive agreement (CEA). A CEA is negotiated by the executive branch, but is presented to both the House of Representatives and the Senate as a piece of legislation, rather than being submitted to the Senate for advice and consent. Trade agreements are often enacted in the US as CEAs because they require a huge amount of implementing legislation, which given Congress’s constitutionally-mandated role in domestic economic policy and interstate commerce, demands a more active role of both branches than the treaty clause provides.

Because NAFTA is a CEA it’s unclear whether the president can withdraw the US in the same way as it it were a treaty. NAFTA does contain a withdrawal clause that provides for termination of a country’s participation six months after notification of intent to withdraw. But this still leaves two important questions. First, since both the House and the Senate voted on NAFTA, can the withdrawal clause be initiated solely by the president or would Trump need a congressional vote? Second (and this is, to me, the more interesting question), since NAFTA itself is not a self-executing treaty but rather a CEA that has been implemented by laws, what happens to those laws if the US does end its involvement in the agreement? Or, to put it another way, does withdrawal from NAFTA automatically terminate the implementing legislation? Some of the NAFTA implementing legislation contains language indicating that the law will be nullified upon termination of the agreement, but not all of it does.

The first question has been debated in multiple contexts: Julian Ku suggests that the president cannot unilateral terminate a CEA, while Michael Ramsey disagrees. I tend to think that the president’s foreign affairs authority, and especially the power to negotiate agreements (which can be understood to include the power to terminate those agreements ) and the logic of termination (it should be difficult for the US to get into an international agreement, but it makes less sense to envision that the Congress should be able to keep the US in an agreement that the president has decided are no longer in the national interest) argue in favor of allowing unilateral executive termination.

The second question is much more difficult, however. The constitutional separation of the executive from the legislative power is one of the most important structural features of the Constitution. It is hard to imagine a situation in which the president could be constitutionally allowed to nullify a raft of duly-passed laws by withdrawing from an international agreement. Furthermore, the presentation clause provides that the way by which the president can reject laws is through the veto which is subject to being overridden by two-thirds votes in both houses of Congress. The Constitution clearly subordinates the president’s role in legislation to that of Congress, and Congress is the ultimate arbiter of what laws do and do not get passed.

On the other hand, it seems weird that the president could withdraw the US from an international agreement and yet the agreement would largely remain in force by dint of the implementing legislation continuing in place. That seems to eviscerate the meaning of withdrawal.

And yet that is, to my mind, what is required. The Constitution allows the president to choose the format any international agreement will take; while there is a powerful logic in favor of conducting trade agreements, the Constitution does not require it. By choosing to involve Congress in the making of the agreement, the president is also involving Congress in its unmaking. Termination still has some effect, as the US would no longer be bound by anything not specifically implemented in legislation and significant amounts of legislation would be automatically nullified in the event of withdrawal.

So, while President Trump can withdraw the US from NAFTA, that withdrawal will not end all of the US’s compliance with the agreement. For that, he will need Congress. If his rationale for threatening withdrawal is really an effort to improve his bargaining position, that might not matter. But if he really wants to end the free trade between the US, Canada, and Mexico, that will take a lot more work than the stroke of a pen.

Deterrence Calculations in North Korea

As North Korea prepares for what many people believe will be its sixth nuclear test, and in the aftermath of recent ballistic missile tests, tensions between the US and North Korea are rising. US military officials have stated that the US is “assessing military options” while North Korea, in its typically hyperbolic manner, has threatened “nuclear thunderbolts” and to destroy US military bases in South Korea as well as the presidential palace in Seoul if the US uses force. President Trump has sent the carrier battle group led by the USS Carl Vinson to the region and warned that the US will act if China can’t or won’t use its leverage to restrain North Korea, while China in turn is urging both countries to walk back their rhetoric or risk seeing the situation spin out of control.

Both sides are attempting to deter the other. The US seeks to deter North Korea from testing a nuclear device and ballistic missiles; North Korea seeks to deter the US from using force to destroy its weapons capabilities or as punishment. Can either side succeed in deterring the other? Will North Korea conduct its test? Is the use of force by one side or the other likely?

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On the Timing, Legality, Strategy, and Effect of the Strike on Syria

Yesterday, the US launched 59 Tomahawk cruise missiles against Syria, striking an air base that President Trump alleged played a direct role in the gruesome nerve gas attack of Tuesday. The attack prompted the usual questions: Why now? Is it legal? What effect will the strike have on Syria? On the US’s role in the Syrian civil war?

Why now? If we take President Trump at his word, the horrific nature of the effects of nerve gas, likely coupled with the video evidence of children gasping for their last breaths, altered his assessment of the wisdom of leaving the Assad regime in place or allowing it to conduct chemical weapons attacks unpunished. That the strike occurred two days after the chemical attack and (for now) seems to be limited to a single air base claimed to be involved in some way (whether that means there is a chemical weapons facility there or simply that the planes that dropped the chemical agents launched from there is as of yet unknown. The New York Times has a nice feature on the targets) supports the logic that this represents a specific response to a specific event.

Past presidents have spoken of seeing all the horrors and miseries of the world and realizing that they actually had the power and tools to do something about them (not necessarily to solve them, however). Seeing starving Somali children on (what was then the relatively new) CNN was, in most accounts, motivated President George H. W. Bush to intervene in Somalia. Watching the video of the attack is undeniably horrifying and it’s perfectly reasonable to believe that Trump, who almost certainly has never seen or even thought about such things before, was shocked to his core and felt he had to act.

But, could the attack be a diversion? It’s no secret that things haven’t been going well for the Trump administration lately, and it’s also no secret that military actions tend to produce an immediate upsurge of public support–the so-called “rally-around-the-flag effect”–for the president. It’s not impossible, but I see it as unlikely. Presidents often face bad timing when they seek to use military force. Recall President Clinton’s air strikes against Iraq in Operation Desert Fox on the eve of his impeachment trial. It’s hard to imagine the Joint Chiefs, the theater commanders, the Secretary of Defense, and the National Security Adviser all going along with a military strike that has no perceived value or is motivated solely by domestic political concerns. That’s not to say that the use of force won’t benefit Trump in the court of public opinion; I’m just skeptical that it’s the primary motivation.

Was it legal? Does the president of the United States have the right to attack another sovereign state with which the US is not at war and that does not pose an immediate, direct threat to the US or US citizens? Article I, Sec. 8 gives Congress the power “to declare war” but it does not declare what that power encompasses? Put simply, are all uses of force “war” in a legal sense that require congressional authorization? If not, can the president use force whenever and wherever he sees fit? (NOTE: as I’m not really a scholar of international law, I’ll leave the question of whether the attack was legal under IL to others. If you’re interested, you can find good analyses here (in favor) and here, here and here (against).

Continue reading “On the Timing, Legality, Strategy, and Effect of the Strike on Syria”

The Canary Sings!

Steve Bannon has been removed from the NSC Principals Committee. As the New York Times is reporting, “A new order issued by Mr. Trump, dated Tuesday and made public on Wednesday, removes Mr. Bannon from the principals committee, restores the chairman of the Joint Chiefs and intelligence director and also adds the energy secretary, C.I.A. director and United Nations ambassador.”

This is a huge victory for Secretary Mattis and General McMaster who have been pushing against the Trump administration to depoliticize the foreign policy decision making processes, appoint their own deputies, and otherwise resist the seemingly unstrategic decisions of the administration. As I blogged in the inaugural post of Security Dilemmas, whether Mattis and McMaster stayed in the government would be a huge sign as to whether “[Mattis] (the post was written before McMaster replaced Flynn as NSA) is able to implement the policies he prefers and is not being forced to move too far from those positions. If, however, Mattis resigns abruptly or early on in the first administration, that could very well be a sign that President Trump may be demanding implementation of his policies in the Pentagon, and perhaps across the whole government.”

Now it seems not only that they’re staying, but that they’re winning. They haven’t won every one of these battles, but they’ve won the most important ones. Removing Bannon from the NSC Principals Committee is a clear sign that Trump listens to and trusts Mattis and McMaster, that Bannon does not control the president’s every move, and that sane, rational decision makers who have a clear sense of the importance of the traditional role of the US are in control. It’s a good day for American foreign policy, American national interest, and global peace and security.