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Ask George: Does President Trump Have the Authority to Kill NAFTA?

Posted November 28, 2017

With the opinion of trade law experts divided on the subject, the answer isn’t nearly as straightforward as one might think. Some legal scholars believe “there’s a pretty good chance” President Trump has the authority to unilaterally terminate the North American Free Trade Agreement, but many others say only Congress has that power since it ratified and implemented the trade deal through legislation.

In an op-ed last year, law professors Julian Ku and John Yoo speculated that despite Trump railing against NAFTA during the election, denouncing it as a job-killing “disaster” and vowing to withdraw from “the worst trade deal in history” if he was unable to hammer out a “great deal” with Canada and Mexico, he may end up being stuck with the decades-old pact because they noted “under the Constitution’s Commerce Clause, only Congress may alter our tariff, tax and customs laws.”

“The upshot is that President Trump cannot on his own terminate U.S. participation in NAFTA or, for that matter, in the World Trade Organization,” stated the professors. “Congress enacted both agreements as statutes, so they can be reversed only by another, repealing statute enacted by the House and the Senate and then signed by the president,” they explained.

That opinion differs from a communication issued last month by the National Customs Brokers & Forwarders Association of America, Inc. addressing various concerns surrounding a U.S. withdrawal from NAFTA that was prepared by the group’s legal firm, Kent & O’Connor, Inc.

Acknowledging this is “uncharted territory, with few certainties and no simple answers” and also conceding that other legal experts disagree with their conclusion, the NCBFAA response to the question of whether Trump can invoke NAFTA Article 2205 unilaterally without consent or approval of Congress was: “Probably.”

Citing the underlying law authorizing trade negotiations in accordance with so-called “fast-track” procedures, the communication notes the legislation contains a provision dealing with “termination and withdrawal authority” which states: “The President may at any time terminate, in whole or in part, any proclamation made under this Act.”

David Irwin, an economics history professor at Dartmouth College and one of the six experts recently consulted by Vox media on the issue, neatly summed up the problem this way: “Lawyers seem to disagree about whether Trump has the unilateral legal authority to pull us out of NAFTA, or, if he can, whether than even means anything given the NAFTA implementing legislation was passed by Congress and presumably cannot be undone unilaterally by the president.”

“There is little precedent for such an action, so we really don’t know what Congress intended in the withdrawal authority,” Irwin noted, suggesting however that one thing was beyond any doubt: “that any presidential determination to leave NAFTA would be immediately challenged in the courts and some members of Congress will fiercely resist it.”

The inevitability of a legal challenge was echoed by Bennett-Jones partner Matthew Kronby who told the Toronto Star that the question of whether Trump has the authority to kill NAFTA will ultimately be decided by judges. “I think the only certainty is that if Trump were to go ahead and withdraw, or purport to withdraw, there would be lawsuits immediately. And probably injunctions. And this thing will be tied up in courts for a while.”