Trump sets clock ticking on Congress
Naomi Powell analyzes U.S. president’s ultimatum for Congress on USMCA deal.
U.S. President Donald Trump has reignited his threat to withdraw from the North American Free Trade Agreement and with it, a well-worn debate among scholars about the limits of presidential power when it comes to trade. The U.S. president made his latest pledge to terminate the 24-year-old trilateral pact as he was preparing to leave the G20 summit in Buenos Aires, an event that included the ceremonial signing of the new United States-Mexico-Canada Agreement (USMCA). “I’ll be terminating it within a relatively short period of time,” Trump told reporters aboard Air Force One. “That’ll be terminated so Congress will have a choice of the USMCA or pre-NAFTA, which worked very well.”
In a sense the comments were nothing new. Canada and Mexico were both on the receiving end of Trump’s pledges to scrap NAFTA during the difficult 15 months of negotiations to revamp the deal. But this time, Trump’s take-it or leave-it scenario was directed at the newly elected Democratic Congress: Approve the USMCA or have no deal at all. Indeed, the USMCA is facing resistance from Congressional Democrats who have criticized the strength and enforceability of the new deal’s labour and environmental standards.
“What Trump’s obviously trying to do is start a clock,” said Curtis Bradley, a Duke University law professor and editor of the international-law journal of the American Law Institute.
“I think he strategically believes this makes it more likely the new NAFTA will simply be approved. The question is, can he use this threat as leverage? My guess is he can.”
Under the Commerce clause of the U.S. Constitution, the president has the power to make trade deals — that is, act as spokesperson and negotiator for the country, with the final deal requiring the approval of Congress. However, when it comes to the president’s power to terminate deals, the clause is “silent.” That gap has prompted a longstanding debate among legal scholars. While some argue a withdrawal must be approved by Congress, others point to a pattern of historical practice in which presidents have unilaterally withdrawn from treaties “for most of the 20th century,” said Bradley.
“As a matter of practice it is established,” he said. “Trump has done it already on a number of treaties.”
Not everyone agrees. The U.S. Constitution specifically deprives the president of the power to regulate commerce, argues Joel Trachtman, a trade expert and professor of international law at the Fletcher School at Tufts University in Medford, Mass. And while there are some instances in which the president has acted unilaterally to terminate commercial treaties, far more cases have involved the participation of Congress, he said. Trachtman says the commerce clause has been “interpreted by the Supreme Court as depriving the president of power to regulate commerce. The withdrawal from NAFTA would be the regulation of commerce and so, in my view, he doesn’t have the power to do that.” The likely fallout if Trump triggers a U.S. withdrawal from NAFTA “would definitely be litigation,” Trachtman said.
Under Article 2205 of NAFTA, any country can withdraw from the deal with six months notice. Ending the arrangement would likely require a second notification and a lawsuit would probably seek an injunction on that action, he said. What if Trump were ultimately successful in terminating the deal? When the original NAFTA was brought into force, its predecessor, the 1988 Canada-U.S. Free Trade Agreement (CUSFTA), was suspended. “We had an exchange of notes with the Americans that said if something happens with the NAFTA, the FTA would come back into being,” said John Weekes, Canada’s chief negotiator on the original deal.
But while those letters may have set out a clear intention, “it’s hard to say they ’d be legally enforceable now,” Weekes said.