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.

As you may recall, now-President Trump went to Mexico during last year’s campaign, and, after he took over the press conference, both Pres. Peña Nieto and he stated that NAFTA should be renegotiated.

If you look up the history of NAFTA, you find:

The United States commenced bilateral trade negotiations with Canada more than 30 years ago, resulting in the U.S.-Canada Free Trade Agreement, which entered into force on January 1, 1989. In 1991, bilateral talks began with Mexico, which Canada joined. The NAFTA followed, entering into force on January 1, 1994.

Considering the changes in technology and global markets that have taken place during the past 23 years, it’s not unreasonable to take a second look at the treaty.

The next round of talks starts today (emphasis added)

One provision designed with that objective is a “sunset” clause that would force Nafta’s expiration in five years unless all three countries act to renew it, said people briefed on the plan.

Other proposals, these people said, would weaken or eliminate the mechanisms aimed at settling disputes between the three countries and curbing the unilateral threats and sanctions that frequently roiled trade ties in earlier years.

More importantly,

None of the U.S. proposals would alter the specific trade terms that have spurred a quarter-century of commercial integration between the U.S., Mexico and Canada, such as tax-free trade across borders.

The Trump administration’s goal appears to be to reduce the incentive to outsource by watering down the pact and reduce its influence on American companies through measures such as undoing the current policy of treating the three economies – Canada, U.S, Mexico – as one, narrowing the amount of U.S. federal spending to the same dollar amount as the trading partners (“dollar for dollar”), and requiring that some products contain not just a certain level of Nafta-regional content, but U.S.-specific content.

This goal goes hand-in-hand with the administration’s deregulation strategy to improve U.S. manufacturing. And, as the WSJ said in the above article, “None of the U.S. proposals would alter the specific trade terms.”

Since the new round of talks starts today, this of course does not mean that is what NAFTA will look like at the end.

However, I would love to see – if only once – an international treaty with an actual sunset clause.

A woman can dream.

Fausta Rodríguez Wertz writes on U. S. and Latin America at Fausta’s blog