Can President Obama Withdraw the U.S. from NAFTA?

by Julian Ku

During the most recent U.S. presidential debate, candidates Barack Obama and Hillary Clinton competed over who was against U.S. participation in the North American Free Trade Agreement (NAFTA) and who was REALLY against NAFTA. Interestingly, both candidates essentially pledged to, if elected, threaten to withdraw from NAFTA in order to force Canada and Mexico to renegotiate.



As a policy matter, this seems like a bad idea since the U.S. probably benefits more from NAFTA than either Mexico or Canada. But I recognize that many folks disagree, especially voters in Ohio. But the interesting legal question is how and whether a future President Obama (assuming he wins, as seems possible or even likely) would withdraw from NAFTA.



Under NAFTA itself, Article 2205 allows withdrawal “six months after it provides written notice of withdrawal to the other Parties.” As a matter of international law then, there is no problem. But as a matter of U.S. domestic law, can a President withdraw on his own authority, or does he have to get Congressional approval?



It seems most likely that this is solely the President’s call, since NAFTA is an executive agreement and not a treaty (and even if it was a treaty, the President probably can withdraw under his own authority). But it does seem odd that the President has such broad unilateral authority on a matter on which Congress has spoken with such excruciating detail. Will critics of executive power protest such unilateral executive action by President Obama?

http://opiniojuris.org/2008/02/27/can-president-obama-withdraw-the-us-from-nafta/

3 Responses

  1. Julian,

    Great question. Actually it is a congressional-executive agreement. I wonder if that makes a difference.

    Doesn’t Goldwater v. Carter, 444 U.S. 996, address this issue? The plurality in that case seemed to think that withdrawal from the U.S. mutual defense treaty with Taiwan was a political question.

    Roger Alford

  2. Goldwater v Carter would not necessarily apply, as it dealt with both treaties (which NAFTA is not) and the presidential power of recognition. But the fact that NAFTA is a congressional-executive agreement would, I think, make a difference. NAFTA was implemented by many domestic statutes; those would not simply disappear because President Obama announced intent to withdraw from the treaty. Even in the aftermath of Goldwater v Carter, only congressional legislation vis-a-vis Taiwan that was predicated on Taiwan’s sovereign status and removal thereof by the president’s shift of recognition to Beijing was affected. I would surmise that in this hypothetical, since NAFTA is not a treaty but rather a congressional-executive agreement implemented by domestic legislation, the president would not possess the power to unilaterally abrogate the agreement.

  3. I believe Arthur Rovine once wrote an article/comment about a review done of the way international agreements (i.e. treaties and other types of agreements) had been terminated by Presidents in the 20th century and Presidents appear to have terminated a wide variety of these in a manner that suggests that a future President could withdraw from NAFTA notwithstanding the concerns raised here. In each case that went to court, it would likely be seen as a political question. As to the statutes, they would be on the books but there must be some doctrine about a statute on the books being overtaken by the termination of the treaty it implemented. Like a last in time type of idea.

    Best,

    Ben

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