Fletcher in the News

Can Congress Block Trump if He Pulls Out of NAFTA? Prof. Trachtman Discusses with Foreign Policy

Joel Trachtman

The future of the North American Free Trade Agreement (NAFTA) hangs in the balance as the latest round of negotiations between the United States, Mexico, and Canada wraps up Tuesday. U.S. President Donald Trump has set out impossible-to-meet demands for Canada and Mexico, and he has threatened to walk away from the nearly 25-year-old trade pact if those countries don’t play ball.

But it may not be that easy — Congress, not the president, may have the ultimate authority to unwind a big trade deal. Numerous lawmakers and legal scholars believe that full withdrawal from NAFTA would require Congressional approval — or at the very least, lead to lengthy court battles that could delay the U.S. departure for years...

...Joel Trachtman, a professor of international law at Tufts University, argues that Trump cannot terminate U.S. participation in a foreign trade agreement without the consent of Congress. He cites the 1994 Supreme Court case Barclays v. California, which held that “the Constitution expressly grants Congress, not the President, the power to ‘regulate Commerce with foreign Nations.’”

“The president doesn’t have power to unilaterally withdraw the United States from trade agreements, including NAFTA,” Trachtman told Foreign Policy. “He could do it with congressional authorization, but there is no congressional authorization that currently exists.”...

...Trachtman recommends Congress take preemptive action to remove that uncertainty.

“If President Trump proposes to give notice to terminate NAFTA without congressional approval, U.S. exporters, and U.S. consumers, and perhaps also U.S. members of Congress, should sue,” he wrote in May for The Hill.

“Before we reach that point, Congress could pass legislation specifically denying the president authority to terminate these trade agreements, in order to avoid uncertainty. It has the power, and the responsibility, to do so.”

There are other ways to prevent a NAFTA withdrawal from taking effect as well.

“General Motors or a member of Congress could bring a lawsuit — similar to his bans on certain immigrants,” Trachtman told FP. “A court could issue an injunction saying, ‘Don’t do it.’”

Read the full article