Can Donald Trump pull the U.S. out of NAFTA all on his own?

by John Geddes (feat. Colin Robertson)

Maclean's
August 28, 2017

Listening to President Donald Trump, or reading his Twitter musings, sure leaves the impression he claims unfettered power to yank the United States clear of the North American Free Trade Agreement whenever he feels like it. “I think we’ll end up probably terminating NAFTA at some point, okay?” Trump said in a rambling late-summer speech in Phoenix. He followed up with this classic Trumpian Tweet: “We are in the NAFTA (worst trade deal ever made) renegotiation process with Mexico & Canada. Both being very difficult, may have to terminate?”

A superficial reading of NAFTA lends some support to the notion that Trump might have the power to act on his bluster. The deal among Canada, the U.S. and Mexico, which came into force in 1994, does include Article 2205, which lets any of the three countries back out on six-months notice. And, since U.S. presidents have broad power over foreign affairs, that might seem to be Trump’s clause to trigger. Indeed, some trade experts read it that way—but others see it differently.

For instance, Riyaz Dattu, of the law firm Osler, Hoskin & Harcourt in Toronto, says Trump’s problem is that while presidents negotiate trade deals, Congress passes the laws to make them a reality in the U.S. “President Trump would have to get Congress to repeal the [NAFTA] provisions that were written into U.S. law,” Dattu says. He concedes, though, that the potential clash over presidential and congressional clout when it comes to quitting a trade deal is “an area that has not been tested.” Trade and constitutional lawyers on both sides of the border agree that if Trump tried to act unilaterally, a court battle would likely ensue, perhaps ending up in the U.S. Supreme Court.

That assumes, however, sufficient political will among Trump’s foes to fight him over NAFTA. Colin Robertson, a former diplomat with long experience in the U.S., who has analyzed the new NAFTA talks in depth for the Ottawa-based Canadian Global Affairs Institute, predicts Trump would carry the day. “In a practical sense, if he says, ‘I’m pulling the plug,’ I don’t think there will be enough pressure in Congress to question his authority,” he says.

Still, Robertson says potent U.S. domestic forces have already pulled Trump back from the brink once when he was close to trying to exit the agreement on his own say-so alone. When his administration was approaching its 100^th day in power last April, rumours spread that he was contemplating a hasty NAFTA withdrawal. The U.S. farm lobby weighed in with the White House against that precipitous move, Robertson says, and succeeded. NAFTA supporters hope that if Trump again came close to abrogating, domestic forces would rally once more to persuade him to retreat.

If not, the question of Trump’s unilateral power to turn his anti-NAFTA rhetoric into reality will stop being an intriguing debating point for lawyers, and turn into a matter of massive real-world implications for a continental economy.