Withdraw from NAFTA?

Trump says he will withdraw from NAFTA, pressuring Congress to approve new trade deal

But the move would set off legal questions.

By ANDREW RESTUCCIA, DOUG PALMER and ADAM BEHSUDI

President Donald Trump said Saturday he intends to formally notify Canada and Mexico of his intention to withdraw from the nearly 25-year-old North American Free Trade Agreement in six months. The move would put pressure on Congress to approve his new trade deal with the two U.S. neighbors.

"I’ll be terminating it within a relatively short period of time. We get rid of NAFTA. It’s been a disaster for the United States," Trump said on board Air Force One after departing Buenos Aires, where he signed the U.S.-Mexico-Canada Agreement with the leaders of those two countries.

"And so Congress will have a choice of the USMCA or pre-NAFTA, which worked very well," Trump added.

Trump's comments confirmed what many have long suspected — that he would use the act of withdrawing from NAFTA as a cudgel to force Congress into passing the new deal.

But it also could be seen as an admission that the new agreement is not popular enough to be approved on its own merits, so Trump has to use the threat of disrupting the entire North American economy to round up the votes in Congress to get the deal past the finish line.

While a number of business groups do support the new deal because it contains new provisions on digital trade and strengthens intellectual property rights protections, others are simply relieved that it would keep much of the original agreement in place.

House Democrats, who are likely to hold the key to whether the new agreement is approved, have complained that labor and environmental provisions are not strong enough and have signaled they would like those concerns addressed as part of the implementing legislation.

Trump's untested move would send the administration and Congress into a legal wilderness. The NAFTA deal includes a provision that allows a withdrawal after providing a six-month notice, but opinions differ on whether the president can act on his own.

Lawmakers passed legislation to implement the original deal in 1993. It's uncertain whether a withdrawal initiated by the president would repeal the law that put the deal into force.

Trump’s move to withdraw also could raise legal questions over his ability to interfere with the constitutional authority of Congress to set tariffs and “regulate commerce with foreign nations.”

“The president needs to take a look at the Constitution — it gives Congress authority over trade," Sen. Ron Wyden (D-Ore.) said in September. "The president cannot pull America out of NAFTA without Congress’ permission."

A 2016 report from the Congressional Research Service seems to be back up that position.

"It could be argued that because international trade is an area of shared constitutional authority, Congress must have a role in any decision by the United States to terminate or withdraw from" a free-trade agreement, CRS said.

Others argue Congress ceded authority to the executive branch decades ago that would allow Trump to terminate trade deals. They say Section 125 of the Trade Act of 1974 provides the underlying legal basis for a president to terminate or withdraw from an agreement and revoke any tariff reductions.