The renegotiation of the 1993 North American Free Trade Agreement begins this week. President Trump has threatened that if he does not achieve his goals, he will terminate U.S. participation in NAFTA. But he does not understand, or admit, that he cannot do it on his own. Many in Congress fear that termination would cause economic upheaval, loss of jobs, and losses to firms, not to mention higher prices for U.S. consumers.
NAFTA is a reciprocal agreement by which Mexico and Canada reduce barriers to our exports in exchange for the U.S. reducing barriers to their exports. This means that U.S. industries that export goods and services to Mexico or Canada — and the workers in those industries — would be hurt by any termination of NAFTA.
While the president, under the Constitution, is the main spokesperson and negotiator for the U.S., the Constitution says, and the Supreme Court has affirmed, that this does not mean that the president dictates our foreign policy. The president has power in foreign relations that varies under the Constitution according to the context. Pursuant to the Commerce Clause, the president is at his weakest in the field of trade.
The president and Congress have been misled by the conventional wisdom among some constitutional scholars, which holds that the president has authority to terminate U.S. treaties in all fields, despite lacking the power to make treaties by himself. This conventional wisdom is based on identification in practice of instances in recent history in which the president has terminated some treaties without congressional approval.
Importantly, the Founders generally seem to have believed that the president lacked independent authority to terminate treaties. Where the Constitution does not expressly determine the allocation of power, sometimes practice can be a basis for interpreting the Constitution. So the conventional wisdom interprets the Constitution to allow unilateral termination of treaties by presidents.
This conventional wisdom treats all international agreements, regardless of subject matter, the same. And yet, the Supreme Court has said, in the 1994 case of Barclays v. California, that “the Constitution expressly grants Congress, not the president, the power to “regulate commerce with foreign nations.” If the president, acting alone, were to terminate U.S. participation in NAFTA, he would be imposing regulation on commerce, without congressional participation.
This would be an unconstitutional usurpation of the powers granted to Congress. The practice with respect to the category of commercial agreements is decidedly mixed, with the president most often relying on congressional authority to terminate U.S. participation in commercial agreements. Therefore, the practice in this area does not support an independent presidential power to terminate.
The Supreme Court has never addressed this issue of independent presidential power to terminate treaties. When it came up in connection with the 1979 case of Goldwater v. Carter, a plurality of the Supreme Court found that it was a nonjusticiable “political question.” The conventional wisdom is, in part, based on the practical perspective that, under the political question doctrine, the Court would not intervene to stop a president from acting independently. However, the more recent 2012 Supreme Court case of Zivotofsky v. Clinton suggests that the Supreme Court would hear a case in this field.
While Congress can make specific delegations of powers to the president in the field of trade, it has steadfastly avoided delegating power to the president to terminate trade agreements. So there is little basis for an argument of implicit delegation by virtue of the inclusion in these agreements of clauses allowing the member countries to withdraw.
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. 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. The Founders wisely determined that Congress, not the president, is the “decider” in the field of trade.
The views expressed by contributors are their own and are not the views of The Hill.