Julian Ku and John Yoo have an op ed in the LA Times, arguing that the President cannot withdraw the U.S. from NAFTA or the WTO on his own. Their writing, but probably not their thinking, conflates the issue of withdrawal from the treaty, which the President arguably can do on his own, and repeal of the implementing statute, which the President almost certainly cannot achieve on his own. My analysis follows.
President-Elect Trump’s statements that he would renegotiate or terminate U.S. participation in NAFTA, and perhaps also terminate U.S. participation in the WTO, raise the question whether the U.S. President has the constitutional power to do so on his own, or whether he requires Congressional authorization. If President-Elect Trump, when he becomes President, purports to do so without Congressional authorization, there will be U.S. court challenges by at least some legislators. While these challenges are likely to be dismissed as relating to non-justiciable “political questions,” and while perhaps a President Trump could achieve Congressional support, it is worth considering the constitutional context.
All modern U.S. trade agreements, including notably NAFTA and the WTO, include termination clauses, which ordinarily allow a state party to terminate its participation in the treaty on notice. Modern U.S. trade agreements are entered into not under the Treaty Clause of the Constitution, requiring advice and consent of two-thirds of the Senate, but as congressional-executive agreements approved by majority votes of both the Senate and the House of Representatives. The Constitution does not address these congressional-executive agreements, and it does not specify how treaties under the Treaty Clause or treaties approved as congressional-executive agreements are to be terminated. Practice during the past century, and a predominant view among U.S. scholars, holds that treaties may be terminated by the President acting alone. However, under the Commerce Clause of the Constitution, Congress holds exclusive power over the regulation of trade with foreign states. If this power is truly exclusive, it is difficult to find that the President can terminate a trade agreement without explicit or implicit authorization by Congress.
One argument for Presidential power to terminate any international treaty, including trade treaties, is based on the broad executive powers accorded the President under Article II of the Constitution: “The executive power shall be vested in a President of the United States of America.” The basis for this argument is that termination of a treaty is an executive function, but this characterization is not unassailable. For example, it might be argued that an international trade treaty is most analogous to a statute, and indeed is, in modern times, always adopted pursuant to statute, and that therefore a Congressional act repealing the statute—or trade treaty—is required for its termination. In addition, this argument based on broad executive powers must defer to more specific allocations of authority in the Constitution. The Commerce Clause may, as a more specific allocation, therefore operate to deprive the President of this power to act alone.
During the first century of the republic, it was understood that the President needed some form of Congressional or Senate authorization in order to terminate a treaty. Thus, it is difficult to base unilateral presidential termination on originalism, on the broad executive powers allocated under the Constitution, or on an argument that the President is the sole organ for international relations. However, the general practice during the past century seems to have been for presidents to act unilaterally to terminate treaties, including for example, in one 1936 instance, a commercial treaty between the U.S. and Italy. Arguments for sole presidential authority to terminate treaties were based on the 1936 Supreme Court case in United States v. Curtiss-Wright, which referred to the “delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” In the 1952 Steel Seizure Case, Youngstown Sheet and Tube v. Sawyer, Justice Jackson stated that “When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility.”
There is some evidence of this type of congressional inertia in connection with termination of treaties. In 1978, as part of the normalization of relations with the People’s Republic of China, President Carter terminated a mutual defense treaty with Taiwan, without obtaining congressional or Senate approval. A group of Senators and Congressmen brought suit, but the Supreme Court dismissed that suit, with four justices holding that the issue constituted a non-justiciable “political question,” and a fifth holding that the case was not yet ripe for adjudication. While this lawsuit itself is inconsistent with an argument of inertia, it seems to have set the stage for subsequent acquiescence.
Since 1978, presidents have terminated a number of treaties on their own authority, including commercial treaties such as the 1985 termination by President Reagan of the Treaty of Friendship, Commerce, and Navigation with Nicaragua. By 1987, the prevailing view in the U.S. international law community, reflected in the American Law Institute’s Restatement (Third) of Foreign Relations Law, was that the President has authority acting alone to terminate treaties, unless that power is restricted by statute.
The remaining question to address is whether this prevailing view, and the general acquiescence in presidential terminations of treaties, applies with respect to trade treaties like NAFTA and the WTO. First, it bears repeating that trade agreements are in a special category because Congress has exclusive power over commerce. So the President’s authority to terminate must depend on his general executive authority or his authority as sole organ for action in international affairs, or on statutory authority. Second, both these treaties contain provisions for withdrawal by member states. Third, there is nothing specific in the statutes that approved and implemented these treaties that limits the president’s authority to terminate them. Fourth, the implementing legislation for both treaties makes both treaties applicable as law in U.S. courts for cases brought by the United States, raising the question whether the President can “un-make” that law without congressional action. Finally, the implementing legislation operates independently of the respective treaties to make changes in the U.S. legal system, raising the question of what happens to these U.S. legal rules if the related treaty is terminated.
Given this degree of uncertainty, and with precedents holding that this type of issue is a “political question” that is not amenable to adjudication, we can expect a court dealing with this issue to decline to adjudicate. Even if it determined to adjudicate, the chances are that it would find the practice and precedent sufficient support for a unilateral presidential termination.