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.