NAFTA WITHDRAWAL AND THE LAW - SOME QUESTIONS

"Even if President Trump has the authority to trigger U.S. withdrawal from the NAFTA without formal congressional approval, it is unclear whether withdrawal would automatically terminate the North American Free Trade Implementation Act."

White & Case Authors:
William Clinton, Scott S. Lincicome,
Brian Picone, Richard Eglin, and William Barrett
August 30, 2017

On August 30, 2017, the above-named authors from the law firm White & Case posted a paper on the firm's website with the title "Termination or Modification of U.S. Trade Agreements." In light of President Trump's repeated threats to withdraw from the North American Free Trade Agreement and other trade deals, their paper could hardly be more timely, more important, or more provocative.

The paper deals with the full range of U.S. trade agreements, from U.S. membership in the World Trade Organization, to NAFTA, to bilateral agreements like KORUS, the U.S.-Korea Free Trade Agreement. While there are striking similarities in how the relevant laws handle the issue of withdrawal for different agreements, there are some significant differences as well. Over and above all the bits of legal language is the fact that "there is almost no precedent governing the legal provisions at issue here." 

 
The authors make that point in the very first paragraph of their paper, and they also make this one:

They further explain that: 

"[E]ach U.S. trade agreement is actually governed by three different U.S. laws: the Trade Act of 1974; the specific version of TPA [Trade Promotion Authority] in effect at the time of the agreement's implementation; and the act implementing the agreement's specific commitments into U.S. law. In some cases, these laws contradict each other on the question at issue (e.g., tariff modification), thus raising significant questions regarding the proper statutory interpretation." 

 
You will want to read the full article for yourself. We'll note here just one other observation from it. The White & Case authors have stated their uncertainty about the status of the act implementing NAFTA if the President were to withdraw from the agreement. We have made that today's featured quote because we think it a question worth thinking about. It is also worth mentioning that the situation is somewhat clearer with respect to KORUS and other bilateral FTAs, because, as the paper explains, "the implementing acts state that the provisions set forth therein have no legal effect upon termination of the relevant FTA."

Of course, if the U.S. pulling out of NAFTA is just a bit of scary rhetoric with no basis in reality, then maybe we can forget about the questions raised here. Or maybe not. Here we shall limit ourselves to the issues relating to NAFTA, leaving other agreements, such as KORUS and the WTO for another time. 

Question No. 1. Is it realistic to think that President Trump might decide to pull the United States out of NAFTA? It is. He has often threatened to do just that, and the example of TPP suggests that such threats need to be taken seriously. We hasten to add that TPP was a negotiation, not an agreement, but its history is still worth noting. 

More to the point, people much closer to the negotiations than your editor are clearly worried. That came through loud and clear in the compelling op-ed article in yesterday's Wall Street Journal by Thomas Donohue, the president and CEO of the U.S. Chamber of Commerce. "This vision [of a NAFTA pull-out by the U.S.] isn't so far-fetched when you consider the increasingly precarious state of play in the effort to modernize the North American Free Trade Agreement," he wrote.

In the same piece, Mr. Donohue argued that "Quitting NAFTA would be an economic, political, and national-security disaster."

Question No. 2. Does the President have the authority to pull out of NAFTA? Yes and maybe. Clearly the President thinks he has that authority, and, for the most part, the world agrees. Even Mr. Donohue said that pulling out "is within the White House's authority." That is not to say, however, that, if the President were to formally take the United States out of NAFTA, there wouldn't be legal challenges to that action. Almost certainly, there would be, and in today fractious judicial environment it is hard to say how those challenges would play out.

Question No. 3. What will Congress do? At some point, Congress will do something. The 2016 election and the current drama over NAFTA and KORUS have challenged the assumptions that underpin an array of statutes. Politically, they beg the question, does it really make sense to legislate in the belief that a free-trade oriented Executive will always face a parochial and protectionist Congress? More fundamentally, these current developments pose a Constitutional challenge. If the President can undo major trading arrangements with the stroke of a pen, arrangements that are sanctified by Congress, codified in law, and that affect the lives of millions, does Congress really have the power "to regulate Commerce with foreign nations?" 

To our knowledge no Congressional leader has forcefully confronted that issue head on. Not yet. And there may be wisdom in that. It doesn't really make sense for Congress to take away the President's leverage in the middle of a negotiation. 

In the wake of a U.S. withdrawal from NAFTA, however, the issue would come to the fore quickly. In the absence of such a withdrawal, on the other hand, all of this will remain largely academic, with this exception. The next time Congress writes a trade bill, our guess is that they will put some fresh thinking into the issues associated with getting out of it. And we may not have long to wait. After all, the current NAFTA negotiations might be successful. We hope they are. And the fruits of those negotiations might need an implementing bill. Opportunity awaits.