Withdrawing from NAFTA
66 Pages Posted: 21 Sep 2018 Last revised: 26 Sep 2018
Date Written: September 20, 2018
Since the 2016 campaign trail, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution but rather a congressional-executive agreement, a creature of dubious constitutionality and ill-defined withdrawal and termination authority. This Article reviews the scope of that authority and concludes that unilateral Presidential withdrawal from NAFTA, while not without support, is ultimately unlawful. On the one hand, unilateral Presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to terminate in the event of a lawful United States withdrawal from NAFTA. However, the President probably lacks statutory or constitutional authority to withdraw from NAFTA, and litigants might effectively overcome political question hurdles by arguing that the NAFTA Implementation Act should not terminate where the President’s action exceeds the scope of his authority. Finally, since the Legislative branch possesses the core constitutional authority over foreign commerce, Congress would also have several political remedies if it wishes to foreclose unilateral Executive withdrawal from NAFTA or other congressional-executive agreements.
Keywords: international law, constitutional law, treaty clause, executive power, congressional-executive agreement, Donald Trump, North American Free Trade Agreement, NAFTA, NAFTA Implementation Act, withdrawal, unilateral withdrawal, administrative law
JEL Classification: K00, K1, K10, K3, K33
Suggested Citation: Suggested Citation