The legislative triumphs of Donald Trump’s first 100 days seem to be limited to naming post offices and scrawling his seismographic signature on repeals of environmental regulations. Everything else he’s done has come by executive order. So when it comes to yanking the United States out of the North American Free Trade Agreement, he’s not calling up Paul Ryan—he’s just pulling out a pen.
The Trump administration is considering an executive order on withdrawing the U.S. from NAFTA, according to two White House officials.
A draft order has been submitted for the final stages of review and could be unveiled late this week or early next week, the officials said. The effort, which still could change in the coming days as more officials weigh in, would indicate the administration’s intent to withdraw from the sweeping pact by triggering the timeline set forth in the deal.
Expectations are that this order is, like most everything Trump does, a bluff. Barack Obama may have drawn a line he wasn’t ready to enforce in Syria, but Donald Trump is made of red lines. “Snarl and run away” has been the story of his time in the White House.
But if Trump follows through on that executive order … could he do it? Could Trump single-handedly pull the United States out of an agreement that was initially signed by George H. W. Bush in 1992, ratified by the Senate in 1993, and finally signed into law by Bill Clinton?
The answer is … it’s complicated. But based on existing law: probably yes.
NATFA itself has a very simple escape clause.
Article 2205: Withdrawal
A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties. If a Party withdraws, the Agreement shall remain in force for the remaining Parties.
You want out, you get out in six months. No questions asked. So if the United States submits written notice to Canada and Mexico, it could be out in time for the holidays.
The real question is: Who is the United States? Does this formal withdrawal require an act of Congress, or can the president pull the switch alone?
Article II of the Constitution makes clear the president’s power in making treaties.
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur...
As with Supreme Court appointments, that “Advice and Consent” clause has been regularly read as meaning that the Senate’s approval is required. There are some types of treaties that president may enter into without getting that box checked, but NAFTA was approved by the Senate.
What about getting out? That is, unfortunately, a good deal muddier.
In 2001, George W. Bush let Russia know that he intended to withdraw from the Anti-ballistic Missile Treaty.
In making his announcement, Mr. Bush declared at the White House Rose Garden, "I have concluded the ABM treaty hinders our government's ways to protect our people from future terrorist or rogue state missile attacks."
Bush didn’t seek any sort of approval from the Senate. His move went unchallenged in court and six months later the ABM Treaty was nullified. What would have happened if the Senate had challenged Bush’s authority to make this move? It’s resoundingly unclear.
In 1979, Jimmy Carter announced that the Untied States would withdraw from the Sino-American Mutual Defense Treaty. This reflected the change in U.S. relations toward Taiwan and a growing need to deal directly with the government in Beijing. Barry Goldwater and a group of Republican senators challenged Carter’s ability to leave the treaty without permission. The Supreme Court dismissed the case, allowing Carter’s action to stand. However, the case was dismissed on a basis of standing, as Goldwater et. al. weren’t recognized as representing a formal challenge to the president’s power, but were seen as individuals acting for political reasons.
So … could Donald Trump unilaterally withdraw from NAFTA? Unless the United States Senate offered a formal court challenge, an event that seems extremely unlikely, then yes. If Trump signs the executive order as planned, NAFTA will die.