Authority to Withdraw from the North American Free Trade Agreement ( 2018 )

(Slip Opinion)
Authority to Withdraw from the
North American Free Trade Agreement
The President may lawfully withdraw the United States from the North American Free
Trade Agreement without the need for any further legislative action.
October 17, 2018
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have asked whether the President may lawfully withdraw the Unit-
ed States from the North American Free Trade Agreement (“NAFTA”),
Can.-Mex.-U.S., Dec. 17, 1992, 32 I.L.M. 289 (1993), according to its
terms, without obtaining approval from Congress. NAFTA is a congres-
sional-executive agreement, negotiated by the President and approved by
Congress. Article 2205 of the agreement permits a party to withdraw from
it on six months’ notice. In the legislation approving NAFTA, Congress
authorized the President to carry out the agreement and imposed no limits
on his authority to withdraw. Because the Constitution and the governing
statute vest the President with the authority to invoke article 2205 of
NAFTA, we conclude that the President may give notice on behalf of the
United States to withdraw from the agreement without the need for any
further legislative action. 1
I.
NAFTA is an international agreement among the United States, Cana-
da, and Mexico that created “a ‘free trade zone’ on the North American
continent through the phased elimination or reduction of both tariff and
non-tariff barriers to trade.” Made in the USA Found. v. United States,
242 F.3d 1300, 1302–03 (11th Cir. 2001). President George H.W. Bush
negotiated NAFTA consistent with section 1103(b) of the Omnibus Trade
and Competitiveness Act of 1988 (“1988 Act”), Pub. L. No. 100-418,
102 Stat. 1107, 1129–30, which entitled certain trade agreements to the
1In preparing this opinion, we have solicited and considered the views of the Depart-
ment of State’s Office of the Legal Adviser. See Memorandum for Henry C. Whitaker,
Deputy Assistant Attorney General, Office of Legal Counsel, from Michael J. Mattler,
Assistant Legal Adviser for Treaty Affairs, Dep’t of State (Dec. 1, 2017).
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42 Op. O.L.C. __ (Oct. 17, 2018)
expedited parliamentary procedures of the Trade Act of 1974, 19 U.S.C.
§ 2101 et seq. To qualify for the Trade Act’s procedures, an agreement
must be subject to termination “upon due notice” at the end of a period
specified in the agreement; if the agreement is not terminated at that
time, “it shall be subject to termination or withdrawal thereafter upon not
more than 6 months’ notice.” 19 U.S.C. § 2135(a). President Bush and
the leaders of Canada and Mexico signed NAFTA on December 17,
1992. 32 I.L.M. at 703. Consistent with the Trade Act, article 2205 of
NAFTA provides for withdrawal on six months’ notice: “A Party may
withdraw from this Agreement six months after it provides written notice
of withdrawal to the other Parties. If a Party withdraws, the Agreement
shall remain in force for the remaining Parties.” NAFTA art. 2205, 32
I.L.M. at 703.
In 1993, President Clinton submitted to Congress the agreement itself,
a “statement of administrative action” describing the Executive Branch’s
plan for implementing the agreement, and proposed implementing legisla-
tion. H.R. Doc. No. 103-159, vol. 1, at 1–2 (1993). The statement of
administrative action discussed one potential withdrawal scenario. Re-
flecting the importance of supplemental agreements on labor and envi-
ronmental issues to his Administration’s support for NAFTA, President
Clinton advised that if Mexico or Canada ever withdrew from one of
those supplemental agreements, the President would, “after thorough
consultation with the Congress, . . . provide notice of withdrawal under
the NAFTA, and cease to apply that Agreement, to Mexico or Canada.”
Id. at 456. The President did not suggest that notice of withdrawal would
be contingent on congressional approval or any other formal action.
Congress enacted the proposed implementing legislation later that year.
See North American Free Trade Agreement Implementation Act
(“NAFTA Implementation Act”), Pub. L. No. 103-182, 107 Stat. 2057(1993). In that statute Congress “approve[d]” both NAFTA and the state-
ment of administrative action. Id. § 101(a)(1)–(2), 107 Stat. at 2061
(codified at 19 U.S.C. § 3311(a)(1)–(2)). The Act changed U.S. law to
comply with the international-law obligations that the United States
would assume under NAFTA. The Act also authorized the President, if he
determined that certain conditions had been satisfied, to take steps to
“provid[e] for the entry into force” of the Agreement with Canada and
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Authority to Withdraw from the North American Free Trade Agreement
Mexico. 19 U.S.C. § 3311(b). President Clinton took those steps and
NAFTA entered into force among the three countries on January 1, 1994.
Office of the United States Trade Representative, Executive Office of the
President, North American Free Trade Agreement (NAFTA), https://ustr.
gov/trade-agreements/free-trade-agreements/north-american-free-trade-
agreement-nafta (last visited October 17, 2018).
II.
A.
The Constitution empowers the President, with the advice and consent
of the Senate, to make treaties. U.S. Const. art. II, § 2, cl. 2. The Constitu-
tion does not expressly address the procedures by which the United States
may enter other forms of international agreements. But from the earliest
days of the Republic, it has been established that the President may, on
behalf of the United States, “make such international agreements as do not
constitute treaties in the constitutional sense.” United States v. Curtiss-
Wright Exp. Corp., 299 U.S. 304, 318 (1936); see Weinberger v. Rossi,
456 U.S. 25, 30 n.6 (1982) (“We have recognized . . . that the President
may enter into certain binding agreements with foreign nations without
complying with the formalities required by the Treaty Clause[.]”); see
also Memorandum for Ambassador Michael Kantor, U.S. Trade Repre-
sentative, from Walter Dellinger, Assistant Attorney General, Office of
Legal Counsel, Re: Whether the GATT Uruguay Round Must Be Ratified
as a Treaty at 2–3 (July 29, 1994); Memorandum for the Attorney General
from J. Lee Rankin, Assistant Attorney General, Office of Legal Counsel,
Re: Constitutional Aspects of the General Agreement on Tariffs and Trade
at 26 (Nov. 19, 1954).
In some instances, the President may enter into such agreements based
solely upon his own constitutional authority. These agreements include
military truces, agreements to resolve foreign claims, and agreements
recognizing a foreign power. See, e.g., Dames & Moore v. Regan, 453
U.S. 654, 679–83 (1981); United States v. Pink, 315 U.S. 203, 229–30
(1942); United States v. Belmont, 301 U.S. 324, 330–31 (1937); Louis
Henkin, Foreign Affairs and the United States Constitution 219–22 (2d
ed. 1996) (“Henkin”). Such executive agreements may have legal force
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42 Op. O.L.C. __ (Oct. 17, 2018)
without any legislative action. See Am. Ins. Ass’n v. Garamendi, 539 U.S.
396, 415 (2003); Dames & Moore, 453 U.S. at 682–83; Whether Uruguay
Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232,
244–45 (1994) (“Uruguay Round Agreements”); Presidential Authority to
Settle the Iranian Crisis, 4A Op. O.L.C. 248, 249 (1980).
In other instances, the President may negotiate and conclude an interna-
tional agreement that the full Congress approves through legislation
(either in advance or after the agreement is concluded). Unlike a treaty,
“which in a single instrument both constitutes an international obligation
and may have the force of law, a congressional-executive agreement
taking this form consists of two distinct instruments: the international
agreement . . . concluded by the President, and the authorizing statute to
which it is an incident[.]” Memorandum for Robert F. Hoyt, General
Counsel, Dep’t of the Treasury, from Steven G. Bradbury, Principal
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Presi-
dent’s Authority to Terminate or Amend a Certain Congressional-
Executive Agreement at 5 (May 9, 2008) (“2008 Bradbury Opinion”). The
United States has frequently employed such congressional-executive
agreements to assume major international trade obligations. See Uruguay
Round Agreements, 18 Op. O.L.C. at 234–35; Richard S. Beth, Cong.
Research Serv., R44584, Implementing Bills for Trade Agreements:
Statutory Procedures under Trade Promotion Authority 2–3 (2016);
Restatement (Third) of the Foreign Relations Law of the United States
§ 303 reporters’ note 9 (Am. Law Inst. 1987) (noting that “agreements on
[tariffs and other trade matters] are now commonly effected by Congres-
sional-Executive agreement”). NAFTA is such an agreement. The Presi-
dent negotiated and concluded NAFTA, and Congress then approved it by
enacting the NAFTA Implementation Act, which authorized the President
to bring NAFTA into force for the United States.
B.
You have asked whether the President may, without obtaining addition-
al congressional authorization, exercise the right of the United States to
withdraw from NAFTA. In the 2008 Bradbury Opinion, we addressed a
similar question in response to a request from the Department of the
Treasury regarding another congressional-executive agreement. Earlier
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Authority to Withdraw from the North American Free Trade Agreement
this year, we addressed this issue in another opinion about a different
international agreement. 2 We provide the same answer today. Where an
international agreement contains defined procedures for termination or
withdrawal and Congress approves the agreement without limiting those
procedures, the President may invoke the right of the United States to
terminate or withdraw under those procedures without the need for addi-
tional congressional authorization. See 2008 Bradbury Opinion at 5. 3
While there have been fewer occasions to consider the President’s au-
thority to terminate congressional-executive agreements, many prece-
dents support the President’s authority to terminate a treaty pursuant to
its terms. That authority flows from the President’s constitutional respon-
sibility to “take Care that the Laws be faithfully executed,” U.S. Const.
art. II, § 3, which includes the power to execute treaties, see Constitu-
tionality of the Rohrabacher Amendment, 25 Op. O.L.C. 161, 169–70
(2001) (“Rohrabacher Amendment ”); Constitutionality of Legislative
Provision Regarding ABM Treaty, 20 Op. O.L.C. 246, 249 (1996). Thus,
“[w]here the Senate has consented to a treaty that provides for its termi-
nation, it has consented to the President’s implementing that provision,
just as it has consented to his implementing other provisions of the trea-
ty.” 2008 Bradbury Opinion at 6. The termination provisions are “simply
part of the treaty the President is authorized to execute, according to his
discretion.” Id.The President’s authority to terminate a treaty also follows from his
role as “‘the sole organ of the nation in its external relations, and its sole
representative with foreign nations.’” Curtiss-Wright, 299 U.S. at 319(quoting then-Rep. John Marshall, 10 Annals of Cong. 595, 613 (1800)).
As the Supreme Court has observed, “the historical gloss on the ‘execu-
tive Power’ vested in Article II of the Constitution has recognized the
2 Because this opinion may be published prior to that one, we fully explore the issue
here rather than rely on our prior opinion as precedent.
3 Bilateral agreements typically provide for a party to “terminate” the agreement; mul-
tilateral agreements typically provide a right of “withdrawal,” since those agreements may
remain in force for other parties. See Anthony Aust, Modern Treaty Law and Practice 245
(3d ed. 2013). The same legal principles that apply to the President’s authority to termi-
nate international agreements apply equally to his authority to withdraw, and so this
memorandum uses the terms interchangeably, as appropriate.
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42 Op. O.L.C. __ (Oct. 17, 2018)
President’s ‘vast share of responsibility for the conduct of our foreign
relations.’” Garamendi, 539 U.S. at 414 (quoting Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concur-
ring)). The President has the “exclusive authority to determine the time,
scope, and objectives of international negotiations.” Unconstitutional
Restrictions on Activities of the Office of Science and Technology Policy
in Section 1340(a) of the Department of Defense and Full-Year Continu-
ing Appropriations Act, 2011, 35 Op. O.L.C. __, at *4 (Sept. 19, 2011)
(“OSTP”) (internal quotation marks omitted). Thus, “[t]he President has
the sole power to negotiate treaties, and the Senate may not conclude or
ratify a treaty without Presidential action.” Zivotofsky v. Kerry, 135 S. Ct.
2076, 2086 (2015) (citation omitted). 4
The President’s exclusive authority over diplomacy extends not only to
the making of treaties, but to their maintenance as well. The Supreme
Court has long recognized that “the execution of a contract between
nations is to be demanded from, and, in the general, superintended by the
executive of each nation[.]” The Schooner Peggy, 5 U.S. (1 Cranch) 103,
109 (1801). “‘In the conduct of negotiations with foreign governments, it
is imperative that the United States speak with one voice. The Constitu-
tion provides that that one voice is the President’s.’” Issues Raised by
Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 40 (1990) (quot-
ing Message to the Senate Returning Without Approval the Bill Prohibit-
ing the Export of Technology for the Joint Japan-United States Develop-
ment of FS-X Aircraft (July 31, 1989), 2 Pub. Papers of Pres. George
Bush 1042, 1043 (1989)); cf. United States v. Louisiana, 363 U.S. 1, 35
(1960) (“The President . . . is the constitutional representative of the
4 Specifically, the President has the power “to make Treaties, provided two thirds of
the Senators present concur,” under Article II, Section 2, Clause 2 of the Constitution.
The same clause of the Constitution empowers the President to “appoint Ambassadors,”
“Consuls,” and other officers of the United States. Although some appointments require
the Senate’s advice and consent, the President alone has the power to remove the execu-
tive officers he appoints. See Myers v. United States, 272 U.S. 52, 122 (1926) (“The
power of removal is incident to the power of appointment, not to the power of advising
and consenting to appointment[.]”). Just as the textual requirement to obtain Senate
approval for certain appointments does not imply any role for the Senate in removal, so
too the fact that the Senate must concur in a treaty does not give the Senate any necessary
role in treaty termination.
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Authority to Withdraw from the North American Free Trade Agreement
United States in its dealings with foreign nations.”). As the Nation’s
chief representative abroad, the President has the authority to determine
whether and when the United States should exercise its right to terminate
treaties.
In evaluating the President’s authority to terminate a treaty without
action by Congress, we place “significant weight” on “accepted under-
standings and practice.” Zivotofsky, 135 S. Ct. at 2091; see NLRB v. Noel
Canning, 134 S. Ct. 2550, 2559 (2014) (noting that “long settled and
established practice is a consideration of great weight in a proper inter-
pretation of constitutional provisions regulating the relationship between
Congress and the President” (internal quotation marks and brackets
omitted)); Dames & Moore, 453 U.S. at 678–86 (describing “a history of
congressional acquiescence in conduct of the sort engaged in by the
President”). In this regard, however, historical practice has evolved over
time. See generally Curtis A. Bradley, Treaty Termination and Historical
Gloss, 92 Tex. L. Rev. 773, 788–99, 807–16 (2014). Although the Presi-
dent’s authority to act unilaterally to terminate a treaty is now well
established, there are a number of early examples involving alternative
procedures for treaty termination, including “direct congressional action,
congressional authorization or direction of presidential action, and sena-
torial authorization or approval.” Restatement (Fourth) of the Foreign
Relations Law of the United States § 113 cmt. c (Am. Law Inst., Tenta-
tive Draft No. 2, 2017); see also id. § 113 reporters’ note 2 (collecting
examples); Edwin S. Corwin, The President: Office and Powers, 1787–
1984, at 226, 481 n.75 (5th rev. ed. 1984) (similar); Memorandum for the
Secretary of State from Herbert J. Hansel, Legal Adviser, Dep’t of State,
Re: President’s Power to Give Notice of Termination of U.S.-ROC Mutu-
al Defense Treaty (Dec. 15, 1978), reprinted in Termination of Treaties:
The Constitutional Allocation of Power, S. Comm. on Foreign Relations,
95th Cong. 395, 400–10 (Comm. Print 1978) (“1978 Legal Adviser
Memo”) (survey of historical practice).
While it would have been convenient had the Founders squarely ad-
dressed treaty termination in the constitutional text itself, we are left with
no such clarity, and the appropriate division of authority between the
President and Congress was hotly debated at the very start of the Repub-
lic. Here, as in other areas, “[a] Hamilton may be matched against a
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42 Op. O.L.C. __ (Oct. 17, 2018)
Madison.” Youngstown, 343 U.S. at 635 n.1 (Jackson, J., concurring).
After President Washington issued a proclamation to maintain U.S. neu-
trality in France’s war with Great Britain and other European powers,
Hamilton and Madison famously divided over the President’s powers,
including over whether the President could suspend the treaty of alliance
with France without congressional action. Compare Alexander Hamilton,
Pacificus No. 1 (June 29, 1793) (“Hence in the case stated, though treaties
can only be made by the President and Senate, their activity may be
continued or suspended by the President alone.”), reprinted in 15 The
Papers of Alexander Hamilton 33, 42 (Harold C. Syrett et al. eds., 1969),
with James Madison, Helvidius No. 3 (Sept. 7, 1793) (“Nor can [the
President] have any more right to suspend the operation of a treaty in
force as a law, than to suspend the operation of any other law.”), reprinted
in 15 The Papers of James Madison 95, 99 (Thomas A. Mason et al. eds.,
1985).
When the United States terminated the treaty of alliance with France
five years later, it did so only after an act of Congress. Following the
XYZ Affair, Congress enacted a series of measures to authorize the
Quasi-War with France, one of which included a declaration that “the
treaties concluded with France,” including the treaty of alliance, “shall
not henceforth be regarded as legally obligatory on the government or
citizens of the United States.” Act of July 7, 1798, ch. 67, 1 Stat. 578,
578. There was some debate within Congress about whether that step fell
within Congress’s power. See David P. Currie, The Constitution in Con-
gress: The Federalist Period, 1789–1801, at 251–52 (1997). Thomas
Jefferson (siding with Madison’s earlier view) opined that “[t]reaties
being declared, equally with the laws of the U. States, to be the supreme
law of the land, it is understood that an act of the legislature alone can
declare them infringed and rescinded.” Thomas Jefferson, A Manual of
Parliamentary Practice § 52 (Samuel H. Smith 1801). The 1798 exam-
ple, however, “appears to be the only instance in U.S. history in which
the full Congress purported to effectuate a termination directly,” Bradley,
Treaty Termination, 92 Tex. L. Rev. at 789, and it might be justified as
incident to the power of Congress to “declare War,” U.S. Const. art. I,
§ 8, cl. 11; see Bradley, Treaty Termination, 92 Tex. L. Rev. at 789–90,
799 & n.143; William Rawle, A View of the Constitution of the United
8
Authority to Withdraw from the North American Free Trade Agreement
States of America 68 (Philip H. Nicklin, 2d ed. 1829) (“Congress alone
possesses the right to declare war; and the right to qualify, alter, or annul
a treaty being of a tendency to produce war, is an incident to the right of
declaring war.”). 5
The United States terminated two other treaties prior to the Civil War.
In 1846, President Polk requested Congress’s authorization to give notice
to terminate a treaty with the United Kingdom concerning the Oregon
territory. See Bradley, Treaty Termination, 92 Tex. L. Rev. at 790. Al-
though Congress passed an act authorizing the President “at his discre-
tion” to do so, Act of Apr. 27, 1846, ch. 4, 9 Stat. 109, 110, some legisla-
tors stated that the law was unnecessary because the President could act
of his own authority or with Senate consent, see 1978 Legal Adviser
Memo at 403–04; Cong. Globe, 29th Cong., 1st Sess. 159 (1846) (state-
ment of Rep. Smith) (arguing that whether to give notice under the treaty
“is a duty that belongs to the President, and he is responsible to the
people for his discharge of it”). In 1855, after President Pierce announced
his desire to terminate a Navigation Treaty with Denmark, the Senate
alone provided him with authorization. Bradley, Treaty Termination,
92 Tex. L. Rev. at 793; see Franklin Pierce, Second Annual Message
(Dec. 4, 1854), in 5 A Compilation of the Messages and Papers of the
Presidents 273, 279 (James D. Richardson ed., 1897) (“Papers of the
Presidents”). Again, some legislators questioned whether congressional
involvement was necessary. 1978 Legal Adviser Memo at 404. Accord-
ingly, prior to the Civil War, the United States had not settled on a clear
5 In Chirac v. Lessee of Chirac, 15 U.S. (2 Wheat.) 259, 272 (1817), the Supreme
Court referred to the 1798 Act as a “repeal” of the treaty of alliance. But that case ad-
dressed only the domestic effects of abrogating the treaty, where Congress’s authority is
well established, see, e.g., La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460
(1899); Rohrabacher Amendment, 25 Op. O.L.C. at 169, not whether Congress could
terminate the treaty as a matter of international law. The Supreme Court has never
decided that latter question, nor do we address it here. The 1798 Act led Attorney General
Biddle to suggest that congressional action might be required to denounce a treaty, see
International Load Line Convention, 40 Op. Att’y Gen. 119, 123 (1941), but that dictum
does not represent the considered view of the Department of Justice. See, e.g., 2008
Bradbury Opinion at 5 n.1; Validity of Congressional-Executive Agreements that Substan-
tially Modify the United States’ Obligations Under An Existing Treaty, 20 Op. O.L.C.
389, 395–96 n.14 (1996).
9
42 Op. O.L.C. __ (Oct. 17, 2018)
understanding as to the role of Congress and which legislative actor, the
Senate or the full Congress, had the authority to authorize the action. 6
Over the course of time, historical practice shifted towards the view
that the President could terminate a treaty without congressional authori-
zation. In some instances, the President effectuated the termination, but
Congress or the Senate then authorized it. Thus, in 1864, in response to
Confederate raids from Canada, President Lincoln provided notice to
terminate the Great Lakes Agreement with Great Britain, pursuant to the
agreement’s notice provision. See Abraham Lincoln, Fourth Annual
Message (Dec. 6, 1864), in 6 Papers of the Presidents 243, 246; see also
12 Charles I. Bevans, Ass’t Legal Adviser, Dep’t of State, Treaties and
Other International Agreements of the United States of America: 1776–
1949, at 54 (1971) (“Bevans”) (text of agreement). A fierce debate in the
Senate ensued over whether President Lincoln had exceeded his constitu-
tional powers in doing so and whether Congress could properly ratify his
action. 7 In the end, however, Congress passed a joint resolution authoriz-
ing the President’s action. Joint Resolution No. 13 of Feb. 9, 1865, 13
6 In addition to these two examples, President Madison’s Administration exchanged
diplomatic correspondence in 1815 regarding the impact of the Napoleonic Wars on a
commercial treaty between the United States and the Netherlands; although both countries
later disputed the status of the treaty, the United States “successfully argued that it had
been agreed by the Netherlands government and President Madison in 1815 to regard the
treaty as terminated.” 1978 Legal Adviser Memo at 402; see 2 Foreign Relations of the
United States, 1873, at 720–24 (1873). Notwithstanding Madison’s earlier views, his
Administration did not seek or obtain congressional approval. There remains some debate,
however, about whether the United States terminated the treaty, or whether the parties
jointly recognized that the treaty had ceased to have effect. Compare Bradley, Treaty
Termination, 92 Tex. L. Rev. at 796–97, with Myres S. McDougal & Asher Lans, Treaties
and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of
National Policy, 54 Yale L.J. 181, 336 & n.127 (1945).
7 Compare Cong. Globe, 38th Cong., 2d Sess. 312 (1865) (statement of Sen. Davis)
(“[U]ntil it is ratified and confirmed by the action of Congress, as every gentleman
acknowledges, [the President’s notice] has no effect or operation whatever.”), and id.(statement of Sen. Sumner) (“[A] treaty may be regarded as to a certain extent a part of
the law of the land, to be repealed or set aside only as other law is repealed or set aside:
that is, by act of Congress.”), with id. at 313 (statement of Sen. Johnson) (“We know that
under the Constitution of the United States, the only organ between the United States and
foreign Governments is the Executive. They have nothing to do with the Congress of the
United States or with the judiciary of the United States. The whole foreign relations of the
country . . . are to be conducted by the President.”).
10
Authority to Withdraw from the North American Free Trade Agreement
Stat. 568. (The President later rescinded the notice of termination before
the six months had expired. See H.R. Doc. No. 56-471, at 33–34 (1900)
(reprinting diplomatic correspondence).) And in 1911, President Taft
gave notice to Russia of his intent to terminate a commercial treaty
according to its terms, and then submitted a resolution for “ratification
and approval” of his action to the Senate. 48 Cong. Rec. 453 (1911).
Congress enacted a joint resolution that “adopted and ratified” the Presi-
dent’s action. Joint Resolution No. 1 of Dec. 21, 1911, 37 Stat. 627(1911); Bradley, Treaty Termination, 92 Tex. L. Rev. at 795.
That Congress has played a role in terminating treaties does not demon-
strate that the President lacks the unilateral authority to do so. Beginning
with President McKinley in 1899, and growing over time, Presidents
increasingly assumed the authority to terminate a treaty without approval
by the Senate or the full Congress. Over the past century, “unilateral
presidential termination of treaties has . . . become the norm.” Bradley,
Treaty Termination, 92 Tex. L. Rev. at 801. As relevant to the case of
NAFTA, many of these withdrawals have involved commercial treaties.
For example:
• In 1899, President McKinley gave notice to denounce portions of
a commercial treaty with Switzerland, Nov. 25, 1850, 11 Stat.
587, on the ground that those provisions required trade conces-
sions from the United States that the President deemed contrary to
U.S. policy. See 1978 Legal Adviser Memo at 406.
• In 1936, President Roosevelt notified Italy of his intent to with-
draw from an 1871 commercial treaty, on the ground that his Ad-
ministration wished to take measures against prejudicial trade
control measures imposed by Italy. See id. at 414–15.
• In 1962, President Kennedy gave notice of the termination of a
1902 commercial convention with Cuba pursuant to the terms of
the treaty. See id. at 420–21.
• In 1985, President Reagan gave notice of the termination of a trea-
ty of friendship, commerce, and navigation with Nicaragua ac-
cording to its terms. See Treaties Terminated by the President,
2002 Digest of United States Practice in International Law, ch. 4,
§ B(5)(b), at 204.
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• In 1987, President Reagan gave notice of the termination of the
United States-Netherlands Antilles Income Tax Convention, on
the ground that it had facilitated tax evasion using accounts and
companies based in the Antilles. See id.
• In 1995, President Clinton gave notice of the termination of a
1980 tax treaty with Malta, on the ground that recent changes in
Maltese law allowed exploitation of the terms of the treaty. See id.
at 203–04; Dep’t of the Treasury, United States Terminates Tax
Treaty with Malta, Treas. RR-717, 1995 WL 685012 (Nov. 20,
1995).
• In 2007, President George W. Bush gave notice to terminate a tax
treaty with Sweden because Sweden had abolished the tax in
question. Dep’t of the Treasury, United States Terminates Estate
and Gift Tax with Sweden, Treas. HP-436, 2007 WL 1724190(June 15, 2007).
• In 2016, President Obama gave notice to withdraw the United
States from the South Pacific Tuna Treaty in accordance with that
treaty’s withdrawal provision. See Treaty Amendment, 2016 Di-
gest of United States Practice in International Law, ch. 4, § B, at
149 (“2016 Digest of U.S. Practice”). 8
In view of these historical examples of presidential action, combined
with what has usually been congressional acquiescence, there can no
longer be serious doubt that the President may terminate a treaty in ac-
cordance with its terms. See Validity of Congressional-Executive Agree-
ments That Substantially Modify the United States’ Obligations Under an
Existing Treaty, 20 Op. O.L.C. 389, 395 n.14 (1996) (“[T]he executive
branch has taken the position that the President possesses the authority to
terminate a treaty in accordance with its terms by his unilateral ac-
tion[.]”); Goldwater v. Carter, 617 F.2d 697, 699–708 (D.C. Cir.) (en
banc) (per curiam) (upholding President Carter’s authority to terminate a
mutual defense treaty with the Republic of China according to the treaty’s
terms), vacated, 444 U.S. 996 (1979); Restatement (Fourth) of Foreign
8 After further negotiations, the United States rescinded its notice of withdrawal from
the South Pacific Tuna Treaty also without seeking or obtaining Congress’s approval. See
2016 Digest of U.S. Practice at 150.
12
Authority to Withdraw from the North American Free Trade Agreement
Relations Law § 113(1) (“According to established practice, the President
has the authority to act on behalf of the United States in . . . withdrawing
the United States from treaties . . . on the basis of terms in the treaty
allowing for such action (such as a withdrawal clause)[.]”); id. § 113
cmt. c (“Since [the end of the 19th century], almost all actions to . . .
withdraw from treaties have been carried out on behalf of the United
States by the President and his or her agents acting unilaterally.” (citation
omitted)); Restatement (Third) of Foreign Relations Law § 339 (“Under
the law of the United States, the President has the power . . . to suspend or
terminate an agreement in accordance with its terms[.]”); Henkin at 213–
14 (explaining that it is now “accepted that the President has the authority
to denounce or otherwise terminate a treaty”); Curtis A. Bradley, Exiting
Congressional-Executive Agreements, 67 Duke L.J. 1615, 1623 (2018)
(observing that the Senate “knows that presidents claim authority to
invoke withdrawal clauses unilaterally” and “routinely consents to treaties
containing such clauses”). In so concluding, we are mindful of the histori-
cal examples in which Congress or the Senate has played a role in treaty
termination. See, e.g., Van der Weyde v. Ocean Transp. Co., 297 U.S.
114, 116 (1936). But such examples do not suggest that congressional
approval is always required—especially since it has, as an historical
matter, more often been lacking. The President therefore need not return
to Congress before terminating or withdrawing from a treaty according to
its terms.
C.
There has been comparatively less discussion concerning the Presi-
dent’s authority to terminate or withdraw from a congressional-executive
agreement, as distinct from a treaty. However, we believe that the textual
and structural reasoning described above, as well as the historical prac-
tice, applies “with equal force to the President’s authority to terminate
congressional-executive agreements according to their terms.” 2008
Bradbury Opinion at 6. When the President invokes a termination provi-
sion in a congressional-executive agreement, he is implementing the laws
that Congress has enacted and exercising his own foreign-affairs powers.
In doing so, his powers are “unquestionably expansive, consisting of both
the authority provided by Congress’s authorizing legislation and the
13
42 Op. O.L.C. __ (Oct. 17, 2018)
President’s considerable independent authority to act in the realm of
foreign affairs.” Id. In that field the President’s action is “‘supported by
the strongest of presumptions and the widest latitude of judicial interpre-
tation, and the burden of persuasion would rest heavily upon any who
might attack it.’” Dames & Moore, 453 U.S. at 668 (quoting Youngstown,
343 U.S. at 637 (Jackson, J., concurring)).
It could be argued that the President may not unilaterally terminate a
congressional-executive agreement because Congress approved the agree-
ment by statute, and therefore, any changes would require a new statute.
That argument parallels one made—ultimately unsuccessfully—in early
debates on the President’s authority to terminate treaties, which may also
have the force of domestic law. See, e.g., Madison, Helvidius No. 3 (“Nor
can [the President] have any more right to suspend the operation of a
treaty in force as a law, than to suspend the operation of any other law.”),
15 Papers of James Madison at 99; Jefferson, Manual of Parliamentary
Practice § 52 (“Treaties being declared, equally with the laws of the U.
States, to be the supreme law of the land, it is understood that an act of the
legislature alone can declare them infringed and rescinded.”). Here too the
argument fails. As explained above, a congressional-executive agreement
“consists of two distinct instruments,” both the international agreement
and the authorizing statute to which it is incident. 2008 Bradbury Opinion
at 5. When Congress approves an international agreement, that legislative
act does not make the international agreement itself a statute. The interna-
tional agreement remains a “distinct” instrument, id., entered into by the
President “pursuant to his constitutional authority for conducting the
Nation’s foreign affairs,” Uruguay Round Agreements, 18 Op. O.L.C. at
234; see also Bradley, Congressional-Executive Agreements, 67 Duke L.J.
at 1632–34 (2018) (explaining that congressional-executive agreements
“reflect a combination of congressional and presidential authority” and
that “Congress has no authority to make binding international agree-
ments”). Under international law, the mechanism for communicating
treaty termination is typically “through an instrument communicated to
the other parties” which only “the Head of State, Head of Government, or
Minister for Foreign Affairs are presumed to have the authority to sign on
behalf of the State.” Vienna Convention on the Law of Treaties art. 67.2,
opened for signature May 23, 1969, 1155 U.N.T.S. 331. The diplomatic
14
Authority to Withdraw from the North American Free Trade Agreement
responsibility for communicating that notice would rest squarely with the
President.
The President may thus terminate the international-law obligations of
the United States under the terms of an agreement without additional
action by Congress. The President’s termination of the international
agreement will not necessarily suspend the operation of any domestic
implementing legislation. That question will depend upon the terms of the
implementing legislation—whether, for example, Congress has provided
that the statute should cease to have effect upon termination of the inter-
national agreement. The effect of termination on such implementing
legislation, however, is a separate question from whether the President
may terminate the international agreement and thereby relieve the United
States of its international-law obligations. See Bradley, Congressional-
Executive Agreements, 67 Duke L.J. at 1634 (noting that even if imple-
menting legislation remains in force, that “does not itself disallow a
presidential termination” of the international agreement, just as the Presi-
dent may terminate an Article II treaty that has been implemented by
legislation).
It could also be argued that the President must seek congressional ap-
proval in terminating an international trade agreement because Congress
approved the agreement under its broad authority to “regulate Commerce
with foreign Nations.” U.S. Const. art. I, § 8, cl. 3. But many treaties have
dealt with “matters that were subject to legislation,” including interna-
tional trade, Henkin at 195; see also supra pp. 11–12 (discussing exam-
ples), and that fact has never been thought to disable the President from
terminating a treaty without obtaining additional congressional authoriza-
tion. See, e.g., Bradley, Congressional-Executive Agreements, 67 Duke
L.J. at 1630 (identifying examples from 1936 and 1985). Given the Presi-
dent’s powers in this area, there is no good reason to believe that the
Constitution preserves any greater role for Congress in the termination of
a congressional-executive agreement on international trade than on any
other subject matter. See id. at 1638. It is therefore entirely congruent
with the constitutional design for the President to carry out the termina-
tion provisions consistent with the agreement as approved by Congress.
Finally, the historical practice over the past century once again weighs
in favor of presidential authority. While examples involving congression-
15
42 Op. O.L.C. __ (Oct. 17, 2018)
al-executive agreements are not as numerous as those involving treaties,
Presidents have invoked the right of the United States to withdraw from
such agreements on a number of occasions. In 1975, the Ford Administra-
tion gave “notice of the intention of the United States to withdraw from
the International Labor Organization” (“ILO”), which the United States
had joined pursuant to a congressional-executive agreement, in accord-
ance with a provision in the ILO constitution requiring two years’ notice
of withdrawal. Membership and Representation, 1975 Digest of United
States Practice in International Law, ch. 2, § 4(C), at 71 (quoting Secre-
tary of State Kissinger’s letter to the ILO). 9 The authorizing legislation
did not limit the President’s authority to withdraw, and President Ford did
not seek congressional approval. 1978 Legal Adviser Memo at 423. In-
deed, it appears that “the issue of Congressional approval was not raised
in either House of the Congress, despite the fact that a number of mem-
bers of the Senate and House did not favor withdrawal from the ILO.” Id.
Similarly, in 1983, without seeking congressional approval, the Reagan
Administration gave notice to withdraw the United States from the United
Nations Educational, Scientific and Cultural Organization (“UNESCO”)
in accordance with “the terms of Article Two Paragraph Six of the
[UNESCO] Constitution.” Letter from George P. Shultz, Secretary of
State, to Amadou-Mahtar M’Bow, Director General, UNESCO (Dec. 28,
1983), reprinted in 84 Dep’t of State Bull. 41, 41 (Feb. 1984); see also
Amendments to the Constitution of the United Nations Educational,
Scientific and Cultural Organization, Dec. 8, 1954, T.I.A.S. No. 3469
(amending UNESCO constitution to provide for withdrawal upon notice).
As with the ILO, Congress had approved U.S. membership in UNESCO
by statute. See Pub. L. No. 79-565, § 1, 60 Stat. 712, 712 (1946) (codified
9 The United States joined the ILO in 1934. See Pub. Res. No. 73-43, § 1, 48 Stat.
1182, 1182 (1934) (codified at 22 U.S.C. § 271); Proclamation of President Franklin D.
Roosevelt, Sept. 10, 1934, 49 Stat. 2712 (1934). The ILO constitution was later amended
to add a withdrawal provision, and the President submitted the amended constitution to
Congress, which approved it. See Instrument for the Amendment of the Constitution of
the International Labor Organization, annex art. 1(5), Apr. 20, 1948, 62 Stat. 3485, 3494
(providing that “[n]o Member . . . may withdraw from the [ILO] without giving notice,”
and that such notice “shall take effect two years after the date of its reception”); H.R. Rep.
No. 80-1057, at 10 (1947) (transmittal of the amended constitution); Pub. L. No. 80-843,
§ 1, 62 Stat. 1151, 1151 (1948) (congressional approval).
16
Authority to Withdraw from the North American Free Trade Agreement
at 22 U.S.C. § 287m); Constitution of the United Nations Educational,
Scientific and Cultural Organization, Nov. 16, 1945, 61 Stat. 2495, 2519
(1946). President Reagan’s notice took effect, and the United States
withdrew, on December 31, 1984. See Message to the Congress Transmit-
ting the Annual Report on International Activities in Science and Tech-
nology (Mar. 20, 1985), 1 Pub. Papers of Pres. Ronald Reagan 319, 321
(1985).
The United States rejoined UNESCO in 2002. See Address to the Unit-
ed Nations General Assembly in New York City (Sept. 12, 2002), 2 Pub.
Papers of Pres. George W. Bush 1572, 1572 (2002). On October 12, 2017,
the Trump Administration again gave notice that the United States intend-
ed to withdraw. See Heather Nauert, Dep’t of State, Press Release, The
United States Withdraws from UNESCO (Oct. 12, 2017), https://www.
state.gov/r/pa/prs/ps/2017/10/274748.htm (stating that, “[p]ursuant to
Article II(6) of the UNESCO Constitution, U.S. withdrawal will take
effect on December 31, 2018”). Once again, the President did not seek
congressional approval.
Presidents have also terminated international agreements for which
Congress provided advance statutory authorization, without seeking
congressional approval for the termination. See, e.g., Diplomatic Note to
the Secretariat of Foreign Relations, Mexico, from the U.S. Embassy at 1
(June 28, 2012) (notice to terminate 1972 agreement on screwworm
eradication); Diplomatic Note to the Ministry of Foreign Affairs of Japan
from the U.S. Embassy at 1 (Dec. 17, 2004) (notice to terminate 1987
textile trade agreement); U.S. Trade Representative, Press Release, U.S.
Files WTO Case Against EU Over Unfair Airbus Subsidies (Oct. 10,
2004) (notice to terminate 1992 agreement implementing 1979 agreement
on trade in civil aircraft); Proclamation No. 2763, 12 Fed. Reg. 8866,
8866–67 (1946) (notice to terminate five bilateral trade agreements);
Bradley, Congressional-Executive Agreements, 67 Duke L.J. at 1638 &
n.95 (citing examples from the Johnson, Eisenhower, and Truman Admin-
istrations); Randall H. Nelson, The Termination of Treaties and Executive
Agreements by the United States: Theory and Practice, 42 Minn. L. Rev.
879, 880–81 n.7 (1958) (collecting additional examples). 10 Some of those
10 For the respective statutory bases of these congressional-executive agreements, see
21 U.S.C. § 114b (1970) (screwworm agreement); 7 U.S.C. § 1854 (1982) (textile agree-
17
42 Op. O.L.C. __ (Oct. 17, 2018)
actions concerned termination by mutual consent of the parties or by the
supersession of a later agreement. See, e.g., 2016 Digest of U.S. Practice
at 477 (supersession of 1960 U.S.-Mexico air transportation services
agreement by new agreement); 49 U.S.C. § 1462 (1958) (statutory basis
for 1960 agreement). But even these precedents illustrate the established
practice of the President ending congressional-executive agreements
without involving Congress.
While history provides ample precedent for the President’s authority to
withdraw without congressional approval, it is also true that, as with
treaties, there have been instances where Congress purported to direct the
termination of congressional-executive agreements. The Comprehensive
Anti-Apartheid Act of 1986, for example, provided that “[t]he Secretary
of State shall terminate” an air services agreement with South Africa, Pub.
L. No. 99-440, § 306(b)(1), 100 Stat. 1086, 1100, an agreement which
Congress had authorized, see 49 U.S.C. § 602 (1940). The Secretary of
State then terminated the agreement. See South African Airways v. Dole,
817 F.2d 119, 121 (D.C. Cir. 1987); see also infra p. 23 (discussing
example in which Congress purported to reserve for itself the power to
“annul” mail privileges Congress authorized the President to extend to
Mexico and Canada by international agreement); Walter McClure, Inter-
national Executive Agreements 29 (1941) (noting congressional authoriza-
tion in 1923 for the termination of certain executive agreements relating
to the Panama Canal, which Congress had ratified). But, as with treaties,
such examples suggest only that Congress has sometimes sought to play a
ment); 19 U.S.C. § 2503(c)(10) (1982) (aircraft trade agreement); 19 U.S.C. § 1351(1940) (bilateral trade agreements). In addition to these examples, President Kennedy
gave notice in 1962 to terminate a 1934 trade agreement with Cuba. 1978 Legal Adviser
Memo at 421; see also 6 Bevans at 1163 & n.5. The 1934 trade agreement was a congres-
sional-executive agreement: President Roosevelt had entered into it pursuant to the Tariff
Act of 1930. See Reciprocal Trade Agreement, Cuba-U.S., Aug. 24, 1934, 49 Stat. 3559,
3559 (1936); see also id. art. XVII, 49 Stat. at 3568–69 (termination provision). The
United States and Cuba had suspended the 1934 trade agreement in 1947 but had reserved
each country’s right to terminate it. See Exclusive Agreement Between the United States
of America and the Republic of Cuba Supplementary to the General Agreement on Tariffs
and Trade, Cuba-U.S., ¶ 1, Oct. 30, 1947, 61 Stat. 3699, 3700; Exchange of Letters,
Cuba-U.S., Oct. 30, 1947, T.I.A.S. No. 1703, in 6 Bevans at 1231–33. When President
Kennedy terminated the agreement pursuant to that reservation of rights, he did so
without seeking congressional approval. 1978 Legal Adviser Memo at 421.
18
Authority to Withdraw from the North American Free Trade Agreement
role in the process, not that congressional approval is necessary. Where
Congress has not sought to involve itself in the process, the President is
not constitutionally required to seek congressional approval before invok-
ing the terms of a congressional-executive agreement to terminate or
withdraw from the agreement.
III.
In view of the principles discussed above, we have no difficulty con-
cluding that the President has the authority, without further action by
Congress, to give notice on behalf of the United States to withdraw from
NAFTA according to its terms. NAFTA contains an express mechanism
for withdrawal, and nothing in the NAFTA Implementation Act or any
other statute purports to limit the President’s authority to carry out that
mechanism.
President Bush conducted the negotiations that led to NAFTA under the
authority granted to him by Article II and consistent with the procedures
specified by Congress to make the trade agreement eligible for fast-track
consideration, see 19 U.S.C. §§ 2902–2903, and he signed NAFTA on
behalf of the United States in 1992. NAFTA provides that “[a] Party may
withdraw from this Agreement six months after it provides written notice
of withdrawal to the other Parties.” NAFTA art. 2205, 32 I.L.M. at 703.
Congress “approve[d]” NAFTA in its entirety and without reservation,
including article 2205. See 19 U.S.C. § 3311(a)(1). Pursuant to the
NAFTA Implementation Act, id. § 3311(b), President Clinton directed an
exchange of notes with Canada and Mexico and provided for NAFTA’s
“entry into force on January 1, 1994.” Memorandum on Implementation
of NAFTA (Dec. 27, 1993), 2 Pub. Papers of Pres. William J. Clinton
2206, 2206 (1993).
As the constitutional actor with “exclusive prerogatives in conducting
the Nation’s diplomatic relations,” OSTP, 35 Op. O.L.C. __, at *4, the
President may invoke NAFTA’s withdrawal provision on behalf of the
United States to communicate the notice of withdrawal to Canada and
Mexico. The President’s role as the agent of the United States in conduct-
ing diplomacy, coupled with his constitutional responsibility to execute
the laws, justifies “presum[ing] (at least absent evidence to the contrary)
that Congress, in approving an international agreement . . . , intended for
the President to administer the agreement in accordance with its terms.”
19
42 Op. O.L.C. __ (Oct. 17, 2018)
2008 Bradbury Opinion at 8 (citing Goldwater, 617 F.2d at 708). No
language in the NAFTA Implementation Act limits his authority to do so,
or rebuts the presumption that, “in approving an international agreement”
like NAFTA, Congress “intended for the President to administer the
agreement in accordance with its terms.” Id. A presidential act withdraw-
ing from NAFTA under the terms of article 2205 would therefore be
supported by both the President’s own independent foreign-affairs author-
ity and Congress’s approval through the NAFTA Implementation Act—
putting the President’s authority at its constitutional zenith. See Youngs-
town, 343 U.S. at 635 (Jackson, J., concurring).
Other provisions in the statute confirm that Congress left the President
broad discretion to implement the agreement. Congress expected the
President, for example, to exchange notes with Canada and Mexico to
make NAFTA effective, and to determine whether those countries had
implemented sufficient changes to their domestic laws to permit NAFTA
to enter into force. 19 U.S.C. § 3311(b)(1)(A). Congress charged the
Executive Branch with administering NAFTA and its authorizing statute
through appropriate proclamations, regulations, and other executive
action. Id. §§ 3314, 3331, 3332(q), 3372. Congress’s broad delegations to
the President of the authority to take action consistent with NAFTA and
its implementing statute presumptively include the power to invoke the
agreement’s withdrawal provision. See 2008 Bradbury Opinion at 8. The
delegations reflect “congressional acceptance of a broad scope for execu-
tive action,” Dames & Moore, 453 U.S. at 677, in the administration of
NAFTA, including in making determinations about whether and when to
withdraw from that agreement.
Indeed, far from restricting that authority, the relevant provisions of the
NAFTA Implementation Act authorize the President to take any and all
actions consistent with NAFTA’s terms. In the Act, Congress “ap-
prove[d]” “the statement of administrative action” that President Clinton
submitted along with NAFTA. 19 U.S.C. § 3311(a)(2). That statement had
explained that the President would, after “consultation” with Congress,
invoke article 2205 to withdraw the United States from NAFTA if Mexico
or Canada failed to abide by three supplemental agreements. H.R. Doc.
No. 103-159, vol. 1, at 456. And even that pledge to consult with Con-
gress before withdrawing from the agreement was not compelled by
anything in the NAFTA Implementation Act. The Act requires the Presi-
dent to consult with Congress in many instances before exercising his
20
Authority to Withdraw from the North American Free Trade Agreement
authority to proclaim tariffs and other matters under the NAFTA Imple-
mentation Act. See, e.g., 19 U.S.C. § 3313(a). But the Act does not call
for consultation before the President makes a decision to withdraw from
NAFTA. The NAFTA Implementation Act thus confirms that the Presi-
dent may withdraw from the Agreement without obtaining congressional
approval. 11
Had Congress sought to restrict the President’s discretion in this regard,
it would have said so expressly. The NAFTA Implementation Act is filled
with provisions anticipating that NAFTA might cease to be effective as
between the United States and Canada or Mexico (e.g., through withdraw-
al). Yet none restricts the President’s power to invoke NAFTA’s with-
drawal provision. Section 2, for example, generally defines the term
“NAFTA country” to mean:
(A) Canada for such time as the Agreement is in force with re-
spect to, and the United States applies the Agreement to, Canada;
and
(B) Mexico for such time as the Agreement is in force with re-
spect to, and the United States applies the Agreement to, Mexico.
19 U.S.C. § 3301(4). Section 109(b), entitled “Termination of NAFTA
Status,” provides that, “[d]uring any period in which a country ceases to
be a NAFTA country, sections 101 through 106 shall cease to have effect
with respect to such country.” Id. § 3311 note. Section 415 similarly
provides that title IV of the NAFTA Implementation Act, governing
dispute resolution between the parties to the agreement, generally “shall
cease to have effect” with respect to a country “on the date on which a
country ceases to be a NAFTA country.” Id. § 3451; see also NAFTA
Implementation Act § 203(b)(1), 107 Stat. at 2088 (amending 19 U.S.C.
§ 1311 to provide a rule for drawback of certain duties “[i]f Canada
ceases to be a NAFTA country”); id. § 203(b)(2)(B) & (C), (b)(3),
(b)(4)(B), (b)(5)(A)(i), 107 Stat. at 2089–91 (making similar amendments
11 We note that there is at least one statement in the legislative history suggesting that
congressional approval may be required. See 139 Cong. Rec. 29,784 (1993) (statement of
Rep. Franks) (“[U]nder article 2205, each country has the opportunity to withdraw from
NAFTA. All it would require for U.S. withdrawal, is a vote of the Congress and 6 months
[sic] notice.”). That statement, however, finds no support in either article 2205 or the
NAFTA Implementation Act, so we do not rely upon it.
21
42 Op. O.L.C. __ (Oct. 17, 2018)
to other provisions). Congress plainly anticipated these possibilities, yet
did not purport to restrict the President’s authority to bring them about.
Congress in fact has acknowledged the President’s authority to exercise
the termination right of the United States under the free trade agreement
with Canada that preceded NAFTA. Before reaching the NAFTA deal, the
United States and Canada entered into a bilateral free trade agreement,
CFTA, which Congress approved by statute. See United States-Canada
Free-Trade Agreement Implementation Act of 1988 (“CFTA Implementa-
tion Act”), Pub. L. No. 100-449, § 101(a)(1), 102 Stat. 1851, 1852 (codi-
fied at 19 U.S.C. § 2112 note). The agreement allowed either party to
terminate on six months’ notice if the parties failed to agree in the future
on revised rules for certain duties. United States-Canada Free-Trade
Agreement, Can.-U.S., art. 1906, Dec. 22, 1987–Jan. 2, 1988, 27 I.L.M.
293, 390. Section 410(a) of the implementing law required the President
to submit a report “if the President decide[d] not to exercise the rights of
the United States . . . to terminate” the agreement under that provision.
102 Stat. at 1897. No provision of the CFTA Implementation Act express-
ly conferred upon the President the authority to exercise the right of the
United States to terminate, but this reporting requirement unequivocally
confirms that Congress believed such authority rested with the President.
There is every reason to think (and no reason to doubt) that Congress
embraced a similar understanding with respect to the United States’
parallel withdrawal right under NAFTA.
The 1988 Act and the Trade Act of 1974 are similarly consistent with
this understanding of the President’s withdrawal authority. NAFTA’s
negotiations were consistent with the statutory frameworks, and it was
approved under both statutes. Section 125(a) of the Trade Act requires
that trade agreements “entered into under [the Trade Act] shall be subject
to termination, . . . or withdrawal, upon due notice, at the end of a period
specified in the agreement.” 19 U.S.C. § 2135(a). Section 125(b) provides
the President with broad authority to “at any time terminate . . . any proc-
lamation made under” it, but does not speak to the termination of trade
agreements. Id. § 2135(b). In both the Trade Act and the 1988 Act, Con-
gress specified that congressional approval would be required for certain
kinds of trade agreements to “enter into force with respect to the United
States.” Id. §§ 2112(e), 2903(a)(1). Congress did not, however, reserve a
similar role for itself in the process of withdrawing from any such agree-
ments. Indeed, “[v]arious forms of this trade legislation date back at least
22
Authority to Withdraw from the North American Free Trade Agreement
to the Trade Act of 1930, and yet in the succeeding eighty-eight years
Congress has never sought to limit presidential termination in this legisla-
tion.” Bradley, Congressional-Executive Agreements, 67 Duke L.J. at
1635. And section 102(a) of the Trade Act encourages the President “to
take all appropriate and feasible steps within his power (including the full
exercise of the rights of the United States under international agree-
ments)” to eliminate distortions of international trade, once again reflect-
ing the background assumption that the President “exercise[s] . . . the
rights of the United States” under its international agreements. 19 U.S.C.
§ 2112(a).
In other cases, Congress has been explicit when it sought to play a role
in the termination of international agreements authorized by statutes. “For
example, in 1960 Congress authorized the President to enter into postal
agreements with Mexico and Canada that would extend to those nations
the privilege of transporting mail over United States territory.” 2008
Bradbury Opinion at 9. Congress “provided that ‘the President or Con-
gress may annul the privilege at any time.’” Id. (quoting Pub. L. No. 86-
682, sec. 1, § 6103, 74 Stat. 578, 688 (1960)). That and other examples
demonstrate that Congress “is readily capable of indicating its intention to
have a role by statute in the termination of agreements it has authorized.”
Id. Yet it did not do so in implementing NAFTA. 12
We conclude therefore that, consistent with long-standing executive
branch practice and the NAFTA Implementation Act, the President may
invoke article 2205 of NAFTA to withdraw from the agreement in six
months, without obtaining congressional approval. That withdrawal, once
it took effect, would mean that the United States is no longer bound by
NAFTA as a matter of its international obligations.
IV.
Withdrawing from NAFTA would also have consequences under U.S.
domestic law. For instance, many provisions of the NAFTA Implementa-
tion Act apply to “a NAFTA country” or “NAFTA countries.” See, e.g.,
19 U.S.C. §§ 3311 note, 3333, 3334, 3335, 3371, 3372, 3391(b)(1). Sec-
12 Because Congress did not purport to limit the President’s authority to terminate
NAFTA, we have no occasion to address constitutional limits on Congress’s ability to do
so.
23
42 Op. O.L.C. __ (Oct. 17, 2018)
tion 2(4) provides that Canada and Mexico are each a “NAFTA country,”
and thus entitled to receive certain trade benefits prescribed throughout
the Act, “for such time as the Agreement is in force with respect to, and
the United States applies the Agreement to,” each country. Id. § 3301(4)
(emphasis added). After withdrawing from NAFTA, the United States
would no longer be “appl[ying]” the agreement to either country, and
therefore, they would cease to be NAFTA countries for purposes of the
Act.
The fact that the President’s invocation of article 2205 could trigger
that event is unremarkable. When the President terminates a self-
executing treaty, the domestic-law consequence is similar, and the
Supreme Court has long recognized that Congress may authorize the
President to execute the law in a manner that terminates the legal effect
of statutory provisions. See Marshall Field & Co. v. Clark, 143 U.S.
649, 690–91 (1892) (discussing “the sanction of many precedents in
legislation” that “invest the president with large discretion in matters
arising out of the execution of statutes relating to trade and commerce
with other nations”); see also, e.g., The Orono, 18 F. Cas. 830, 830
(C.C.D. Mass. 1812) (No. 10,585) (Story, Circuit Justice) (upholding the
President’s statutory authority to drop trade restrictions against Great
Britain and France upon finding that those countries had modified edicts
harmful to U.S. trade); Department of Defense Appropriations Act,
1991, Pub. L. No. 101-511, § 8105(d)(2), 104 Stat. 1856, 1902 (1990)
(codified as amended at 10 U.S.C. § 113 note) (authorizing the President
to waive statutory limits capping the number of troops stationed in
Japan); 22 U.S.C. § 2370a(g) (providing that the President may “waive”
prohibitions on foreign assistance to foreign nations that wrongfully
expropriate property of Americans); 50 U.S.C. § 4305(a) (authorizing
the President to “suspend” prohibitions on trade with an ally of an ene-
my of the United States during wartime). Thus, in providing notice
under article 2205, the President would be acting pursuant to the terms
of the agreement and would be both carrying out legislation that Con-
gress properly authorized him to implement and exercising his foreign-
affairs powers. He would be executing the laws, not unmaking them.
Finally, while the President’s authority to withdraw under article 2205
is based upon his Article II authority, in addition to the statute, the Su-
preme Court has made clear that in the field of foreign affairs, Congress
may delegate broad discretion to the Executive. When the President acts
24
Authority to Withdraw from the North American Free Trade Agreement
“as the sole organ of the federal government in the field of international
relations,” the Constitution does not require Congress “to lay down nar-
rowly definite standards by which the President is to be governed.”
Curtiss-Wright, 299 U.S. at 320, 322; see also Zivotofsky, 135 S. Ct. at
2089 (recognizing that, under Curtiss-Wright, “Congress may grant the
President substantial authority and discretion in the field of foreign af-
fairs”); Youngstown, 343 U.S. at 636 n.2 (Jackson, J., concurring) (“[T]he
strict limitation upon congressional delegations of power to the President
over internal affairs does not apply with respect to delegations of power in
external affairs.”). Many volumes “of the United States Statutes contain[]
one or more acts or joint resolutions of Congress authorizing action by the
President in respect of subjects affecting foreign relations, which either
leave the exercise of the power to his unrestricted judgment, or provide a
standard far more general than that which has always been considered
requisite with regard to domestic affairs.” Curtiss-Wright, 299 U.S. at
324.
In this opinion, we do not address the full range of domestic-law impli-
cations that would follow from the United States’ withdrawal from
NAFTA. Please let us know if we can be of any further assistance in this
or any other regard.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
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