Does President Trump Have the Authority to Replace NAFTA as Proposed?

by Jon Fournier | August 30th, 2018

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Does President Trump Have the Authority to Replace NAFTA as Proposed?

For the past cou­ple of days the inter­net has been filled with head­lines like the following:

Trump replaces NAFTA and tri­umphs — New trade deal with Mex­ico is YUGE win for both countries.

I was thrilled when I saw the head­lines. NAFTA has been an unmit­i­gated dis­as­ter for Amer­i­can man­u­fac­tur­ing jobs. After read­ing the arti­cles and press releases I wasn’t as thrilled because I became con­cerned over the approach Pres­i­dent Trump is using to set aside and replace the deeply flawed treaty.

Here is how Pres­i­dent Don­ald Trump announced the scrap­ping of NAFTA in this offi­cial state­ment.

It’s a big day for trade, a big day for our coun­try. A lot of peo­ple thought we’d never get here because we all nego­ti­ate tough. We do, and so does Mex­ico. And this is a tremen­dous thing.

This has to do — they used to call it NAFTA. We’re going to call it the United States-​Mexico Trade Agree­ment and we’ll get rid of the name NAFTA. It has a bad con­no­ta­tion because the United States was hurt very badly by NAFTA for many years. And now it’s a really good deal for both coun­tries, and we look very much for­ward to it.

Accord­ing to this quote it appears to be a done deal. Pres­i­dent Pena Nieto of Mex­ico, as quoted in the same state­ment, alludes to the fact that this is only the first step in a lengthy process, which should only con­clude with rat­i­fi­ca­tion by the sen­ate, if the Con­sti­tu­tion is followed.

I finally rec­og­nize this, espe­cially because of the point of under­stand­ing we are now reach­ing on this deal. And I really hope and I desire — I wish — that the part with Canada will be mate­ri­al­iz­ing in a very con­crete fash­ion; that we can have an agree­ment the way we pro­posed it from the ini­ti­a­tion of this rene­go­ti­at­ing process, a tripartite.

But today I cel­e­brate the (inaudi­ble) between the United States and Mex­ico because we’re reach­ing a final point of under­stand­ing. And I hope that in the fol­low­ing days we can mate­ri­al­ize (inaudi­ble) in the for­mal­iza­tion of the agreement.

Dur­ing the offi­cial state­ment Pres­i­dent Trump states that Canada is not part of the new treaty yet.

As far Canada is con­cerned, we haven’t started with Canada yet. We wanted to do Mex­ico and see if that was pos­si­ble to do. And it wasn’t — I think, it wasn’t from any stand­point some­thing that most peo­ple thought was even doable when we started.

Pres­i­dent Trump goes on to say this about Canada being a part of the treaty:

But I think we’ll give them a chance to prob­a­bly have a sep­a­rate deal. We can have a sep­a­rate deal or we can put it into this deal. I like to call this deal the United States-​Mexico Trade Agree­ment. I think it’s an ele­gant name. I think NAFTA has a lot of bad con­no­ta­tions for the United States because it was a rip-​off. It was a deal that was a hor­ri­ble deal for our coun­try, and I think it’s got a lot of bad con­no­ta­tions to a lot of peo­ple. And so we will prob­a­bly — you and I will agree to the name.

Fur­ther proof that the Trump Admin­is­tra­tion believes that includ­ing Canada is not nec­es­sary for repeal­ing NAFTA can be found in this Wash­ing­ton Exam­iner arti­cle.

A White House offi­cial said Mon­day that Canada’s con­sent was not needed to approve the trade deal that Pres­i­dent Trump announced with Mex­ico ear­lier in the day, even though the admin­is­tra­tion argued that the deal would “sup­plant” the North Amer­i­can Free Trade Agree­ment between the U.S., Canada, and Mexico.

Since Canada was orig­i­nally part of NAFTA isn’t it essen­tial that Canada be in the replace­ment treaty for the treaty to be legally above board? Accord­ing to this arti­cle sev­eral repub­li­cans believe Canada must be included.

Ambas­sador Lighthizer had this to say in the offi­cial state­ment about the timetable for pas­sage and the process for pass­ing the replace­ment treaty:

Well, it will likely be signed at the end of Novem­ber because there’s a 90-​day lay­over period because of our statute. But we expect to sub­mit our let­ter to Con­gress, begin­ning that process on Friday…And then 90 days later, it will be signed.

I was con­fused about the lan­guage used by the ambas­sador and the ori­gin of the 90 day lay­over period in the pre­vi­ous quote. This Weekly Stan­dard arti­cle shed light on this and the Trump administration’s justification.

In order to nego­ti­ate trade pacts quickly in accor­dance with Trade Pro­mo­tion Author­ity, the White House has to notify Con­gress of its inten­tions in writ­ing. U.S. Trade Rep­re­sen­ta­tive Robert Lighthizer did that in the spring of 2017

In order to accom­plish the rapid replace­ment of NAFTA the Trump Admin­is­tra­tion is rely­ing on Trade Pro­mo­tion Author­ity. which is also known as Fast Track. Here is a descrip­tion if TPA:

Since 1974, Con­gress has enacted TPA leg­is­la­tion that defines U.S. nego­ti­at­ing objec­tives and pri­or­i­ties for trade agree­ments and estab­lishes con­sul­ta­tion and noti­fi­ca­tion require­ments for the Pres­i­dent to fol­low through­out the nego­ti­a­tion process. At the end of the nego­ti­a­tion and con­sul­ta­tion process, Con­gress gives the agree­ment an up or down vote, with­out amend­ment. TPA reaf­firms Congress’s over­all con­sti­tu­tional role in the devel­op­ment and over­sight of U.S. trade policy.

Is it accept­able to use TPA to replace NAFTA? I do not believe so because NAFTA was rat­i­fied by the Sen­ate on Novem­ber 20, 1993. In order to replace a rat­i­fied treaty I believe it must be done by another rat­i­fied treaty, which includes all par­tic­i­pants. I also believe the Trade Pro­mo­tion Author­ity is uncon­sti­tu­tional because it vio­lates the clause requir­ing two-​thirds of all sen­a­tors approve any treaty. Every pres­i­den­tial admin­is­tra­tion that has used TPA to pass trade agree­ments has vio­lated the Con­sti­tu­tion. I firmly believe Pres­i­dent Trump is right to repeal NAFTA; how­ever the Con­sti­tu­tion must always be fol­lowed. All that is required is for him to sub­mit the new three party treaty to the Sen­ate for ratification.

For the past couple of days the internet has been filled with headlines like the following:

  Trump replaces NAFTA and triumphs — New trade deal with Mexico is YUGE win for both countries.

I was thrilled when I saw the headlines.  NAFTA has been an unmitigated disaster for American manufacturing jobs.  After reading the articles and press releases I wasn’t as thrilled because I became concerned over the approach President Trump is using to set aside and replace the deeply flawed treaty.

Here is how President Donald Trump announced the scrapping of NAFTA in this official statement.

It’s a big day for trade, a big day for our country.  A lot of people thought we’d never get here because we all negotiate tough.  We do, and so does Mexico.  And this is a tremendous thing.

This has to do — they used to call it NAFTA.  We’re going to call it the United States-Mexico Trade Agreement and we’ll get rid of the name NAFTA.  It has a bad connotation because the United States was hurt very badly by NAFTA for many years.  And now it’s a really good deal for both countries, and we look very much forward to it.

According to this quote it appears to be a done deal.  President Pena Nieto of Mexico, as quoted in the same statement, alludes to the fact that this is only the first step in a lengthy process, which should only conclude with ratification by the senate, if the Constitution is followed.

I finally recognize this, especially because of the point of understanding we are now reaching on this deal.  And I really hope and I desire — I wish — that the part with Canada will be materializing in a very concrete fashion; that we can have an agreement the way we proposed it from the initiation of this renegotiating process, a tripartite.

But today I celebrate the (inaudible) between the United States and Mexico because we’re reaching a final point of understanding.  And I hope that in the following days we can materialize (inaudible) in the formalization of the agreement.

During the official statement President Trump states that Canada is not part of the new treaty yet.

As far Canada is concerned, we haven’t started with Canada yet.  We wanted to do Mexico and see if that was possible to do.  And it wasn’t — I think, it wasn’t from any standpoint something that most people thought was even doable when we started.

President Trump goes on to say this about Canada being a part of the treaty:

But I think we’ll give them a chance to probably have a separate deal.  We can have a separate deal or we can put it into this deal.  I like to call this deal the United States-Mexico Trade Agreement.  I think it’s an elegant name.  I think NAFTA has a lot of bad connotations for the United States because it was a rip-off.  It was a deal that was a horrible deal for our country, and I think it’s got a lot of bad connotations to a lot of people.  And so we will probably — you and I will agree to the name.

Further proof that the Trump Administration believes that including Canada is not necessary for repealing NAFTA can be found in this Washington Examiner article.

A White House official said Monday that Canada’s consent was not needed to approve the trade deal that President Trump announced with Mexico earlier in the day, even though the administration argued that the deal would “supplant” the North American Free Trade Agreement between the U.S., Canada, and Mexico.

Since Canada was originally part of NAFTA isn’t it essential that Canada be in the replacement treaty for the treaty to be legally above board?  According to this article several republicans believe Canada must be included.

Ambassador Lighthizer had this to say in the official statement about the timetable for passage and the process for passing the replacement treaty:

Well, it will likely be signed at the end of November because there’s a 90-day layover period because of our statute.  But we expect to submit our letter to Congress, beginning that process on Friday…And then 90 days later, it will be signed.

I was confused about the language used by the ambassador and the origin of the 90 day layover period in the previous quote. This Weekly Standard article shed light on this and the Trump administration’s justification.

In order to negotiate trade pacts quickly in accordance with Trade Promotion Authority, the White House has to notify Congress of its intentions in writing. U.S. Trade Representative Robert Lighthizer did that in the spring of 2017

In order to accomplish the rapid replacement of NAFTA the Trump Administration is relying on Trade Promotion Authority. which is also known as Fast Track.  Here is a description if TPA:

Since 1974, Congress has enacted TPA legislation that defines U.S. negotiating objectives and priorities for trade agreements and establishes consultation and notification requirements for the President to follow throughout the negotiation process.  At the end of the negotiation and consultation process, Congress gives the agreement an up or down vote, without amendment. TPA reaffirms Congress’s overall constitutional role in the development and oversight of U.S. trade policy.

Is it acceptable to use TPA to replace NAFTA?  I do not believe so because NAFTA was ratified by the Senate on November 20, 1993.  In order to replace a ratified treaty I believe it must be done by another ratified treaty, which includes all participants.  I also believe the Trade Promotion Authority is unconstitutional because it violates the clause requiring two-thirds of all senators approve any treaty.  Every presidential administration that has used TPA to pass trade agreements has violated the Constitution.  I firmly believe President Trump is right to repeal NAFTA; however the Constitution must always be followed.  All that is required is for him to submit the new three party treaty to the Senate for ratification.

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