Fletcher in the News

Lawyers Begin Sketching Legal Strategy to Challenge Possible Nafta Withdrawal: Prof. Trachtman Discusses with The Wall Street Journal

Congressional trade lawyers and attorneys from private firms in Washington have begun meeting informally to come up with ways to challenge any decision by President Donald Trump to pull out of the North American Free Trade Agreement.

The private attorneys and congressional aides say the contingency planning is in the early stages, and most don't want to discuss the matter publicly while the talks are continuing. But with Nafta negotiations having hit their most difficult stage so far in the round that ended this week, and Mr. Trump repeatedly warning that he will pull out of the pact if trading partners can't agree to U.S. demands for "America First" provisions, the talks over how to respond to a withdrawal have taken on a new urgency, according to those involved...

...Legal experts see two main avenues for challenging a withdrawal: Opponents could challenge the president's ability to exit an international commercial deal as unconstitutional, or challenge his ability to reverse a law passed by Congress -- in this case, parts of the Nafta implementing legislation -- without congressional consent.

In the first case, the challenge would begin if Mr. Trump formally informs Mexico and Canada of plans to withdraw from Nafta, launching the process by which countries are allowed to exit from the deal under the 1992 treaty. Countries can inform trading partners of actual withdrawal six months or more after sending notice.

Lawyers involved in the discussions say it would be difficult to stop Mr. Trump from sending the initial notice of withdrawal, since the executive branch enjoys a special ability to communicate official policy decisions to foreign governments.

But after the notice, lawmakers or companies that stand to be injured by the withdrawal could seek an injunction in federal court to prevent it.

"Congress or General Motors might send an injunction to prevent that second notice to actually withdraw," said Joel Trachtman, professor of international law at Tufts University, citing a hypothetical example. "I think any member or Congress can sue and frankly any business that could be harmed could sue."

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