{ "id": "R45557", "type": "CRS Report", "typeId": "REPORTS", "number": "R45557", "active": true, "source": "EveryCRSReport.com", "versions": [ { "source": "EveryCRSReport.com", "id": 592813, "date": "2019-03-05", "retrieved": "2019-12-20T19:49:23.929998", "title": "The President\u2019s Authority to Withdraw the United States from the North American Free Trade Agreement (NAFTA) Without Further Congressional Action", "summary": "NAFTA is an international trade agreement among the United States, Canada, and Mexico that became effective on January 1, 1994. The agreement includes market-opening provisions that remove tariff and nontariff barriers to trade, as well as other rules affecting trade in areas such as agriculture, customs procedures, foreign investment, government procurement, intellectual property protection, and trade in services. Congress approved and implemented NAFTA in domestic law in the NAFTA Implementation Act (P.L. 103-182, 107 Stat. 2057). On May 18, 2017, U.S. Trade Representative Ambassador Robert Lighthizer notified Congress that the Administration intended to renegotiate NAFTA. More than a year later, following the conclusion of the negotiations, President Trump signed a proposed replacement for NAFTA, the United States-Mexico-Canada Free Trade Agreement (USMCA), along with his counterparts from Canada and Mexico. President Trump has at times suggested that he will withdraw the United States from NAFTA unilaterally if Congress does not approve the USMCA.\nThis report examines the President\u2019s authority to terminate the United States\u2019 international obligations under NAFTA without further action from Congress. It also examines whether the NAFTA Implementation Act, the primary federal statute that implements the agreement in domestic law, would remain in effect if the President successfully terminated U.S. obligations under the agreement. In analyzing these issues, the report focuses on three related questions: (1) whether, under international law, the President may terminate U.S. international obligations under NAFTA without congressional approval; (2) whether, under domestic law, the President, relying on constitutional or statutory authority, may terminate U.S. international obligations under NAFTA unilaterally; and (3) whether the NAFTA Implementation Act would remain in effect if the President successfully terminated U.S. international obligations under the agreement.\nWith regard to the first question, under international law, the President appears to be able to terminate the United States\u2019 international obligations under NAFTA without congressional approval by delivering six months\u2019 notice of withdrawal to Canada and Mexico, provided such notice later becomes effective (e.g., assuming that a court does not enjoin the Executive from issuing the notice or declare such issuance unlawful).\nThe answer to the second question is less clear, however, and would require a reviewing court to confront several complicated issues of first impression, including the scope of the President\u2019s constitutional authority and statutory authority to terminate an international agreement. Justiciability questions may prevent a court from definitively answering the constitutional questions, leaving the resolution of the President\u2019s constitutional authority to the political process. With regard to the statutory question, while legal commentators have raised various arguments with respect to the President\u2019s domestic legal authority to terminate U.S. NAFTA international obligations unilaterally, it does not appear that any statute expressly affords the President with the authority to terminate NAFTA on his own. It is unclear whether Congress\u2019s enactment of an extensive legal framework providing for legislative consideration, approval, and implementation of trade agreements indicates that Congress did not intend to authorize the President implicitly to withdraw from NAFTA without further congressional action. Nonetheless, as explained below, provisions of federal law such as Sections 125 and 301 of the Trade Act of 1974 may provide the Executive with broad authority to suspend individual trade concessions granted to NAFTA countries and thereby establish barriers to trade with Canada and Mexico. At the same time, the Executive\u2019s use of such authority would, however, likely be subject to review on various grounds by domestic or international tribunals.\nFinally, whether the NAFTA Implementation Act would remain in effect after termination of U.S. obligations under NAFTA would be informed by Supreme Court precedent generally requiring the repeal of statutes to conform to the same bicameral process set forth in Article I of the Constitution that is used to enact new legislation. Accordingly, as an initial matter, it would appear that the President lacks authority to terminate the domestic effect of the NAFTA Implementation Act without going through the full legislative process for repeal. Thus, the Act appears to remain in effect unless Congress has, consistent with the Constitution, delegated to the President authority to terminate its provisions or made such provisions \u201cself-terminating.\u201d", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "https://www.crs.gov/Reports/R45557", "sha1": "08a0324c3bda6548ee3259e88ce7539b6574aed6", "filename": "files/20190305_R45557_08a0324c3bda6548ee3259e88ce7539b6574aed6.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "https://www.crs.gov/Reports/pdf/R45557", "sha1": "701a518c1b65a579e8ac4c28789832ec916593c6", "filename": "files/20190305_R45557_701a518c1b65a579e8ac4c28789832ec916593c6.pdf", "images": {} } ], "topics": [ { "source": "IBCList", "id": 4765, "name": "Trade Agreements & WTO" } ] } ], "topics": [ "Constitutional Questions", "Foreign Affairs" ] }