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09/29/2016

Could President Trump Unilaterally Withdraw the U.S. from its International Agreements?
Michael Ramsey

At Opinio Juris, Julian Ku: Preparing for Trumpxit: Could a President Trump Withdraw the U.S. from International Treaties and Agreements?

Professor Ku concludes that a President Trump could for the most part constitutionally withdraw the U.S. from international agreements by giving the notice required.  I mostly agree with his assessment as a matter of the Constitution's original meaning, but with a few qualifications.

Although the Constitution says nothing directly on the matter, I think the best general assessment of the original meaning is this:  (a) The President can withdraw from all treaty and treaty-like undertakings according to their terms.  The Constitution does not say directly who has power to decide to trigger withdrawal provisions, but the President has residual executive power in foreign affairs -- and moreover is charged with executing treaties as part of the supreme law of the land.  Deciding whether to withdraw from a treaty under its terms is part of executing the treaty and directing U.S. foreign affairs, so the power is with the President.  (b) The President cannot terminate treaties in violation of their terms because treaties are part of the supreme law of the land (even if non-self-executing, see here); therefore, Presidents must take care that they are faithfully executed, and violating them is not faithful execution. (c) The President can terminate non-treaty agreements even in violation of their terms because they are not part of the supreme law of the land (unless they are incorporated into a statute).  

As applied to some obligations President Trump might want to terminate:

(1) Mutual defense treaties.  I agree with Professor Ku that the President may terminate such treaties by giving the prescribed notice.  President Carter terminated the Taiwan treaty in this way, and that is constitutional under the rules sketched above (as I argued in The Constitution's Text in Foreign Affairs).

(2) Nonbinding agreements.  Again I agree with Professor Ku that the President may terminate nonbinding agreements.  However, he says:

I think there is no legal problem with a President Trump  unilaterally withdrawing from the Paris Agreement or the  JCPOA (aka the Iran Nuclear Deal).  As I have argued in the past (here and here), both agreements are likely to be “nonbinding” political agreements, and can be terminated at the new President’s sole discretion.

I agree regarding the Iran deal, but the Paris Agreement is much more complicated.  As explained here, as a whole the Paris Agreement is a binding international obligation, even though the more important provisions of it are not binding.  Moreover, the Paris Agreement by its terms only allows a notice of withdrawal after three years.  So if President Trump wants an immediate withdrawal, he would have to violate the Agreement (I am assuming that the Agreement will take effect before the next President takes office; I see no constitutional barrier to the President withdrawing the U.S. ratification if the treaty has not taken effect).

However, the Paris Agreement is not a treaty and therefore is not supreme law of the land.  Perhaps, as a matter of U.S. domestic law, the President can terminate it, even though that entails violating international law.  But some commentators have argued that the President's constitutional "take care" obligations extend to international law as well as to the supreme law of the land (the take care clause is not drafted in parallel with the supremacy clause, suggesting that it might be broader).  I have taken this position, very tentatively, with regard to customary international law.  Whether that would extend as well to violating non-treaty agreements is a more difficult question.

Further, though, in my view there is a plausible argument the Paris Agreement is unconstitutional because it should have been adopted as a treaty (see here).  Maybe, then, President Trump can withdraw from the agreement on this ground, as his duty to uphold the Constitution presumably overrides any duty he might have to international law.

(3) Congressional-executive agreements.  Professor Ku suggests that there might be some difficulty with the President withdrawing from trade deals:

The hardest question here has to do with trade agreements like NAFTA and the WTO.  Most commentary, including this paper by Gary Hufbauer, have assumed a President Trump could unilaterally terminate all trade agreements (see some dissenting views from Rob Howse here).  Unlike the Paris agreement or the JCPOA, these are unquestionably binding agreements that are approved by Congress.  But unlike a traditional arms control treaty like NATO, withdrawing from NAFTA or the WTO could require some meaningful changes to U.S. domestic law.  Moreover, unlike a traditional treaty, the President engages in trade agreement negotiations under the “trade promotion” authority enacted by Congress prior to the conclusion of any trade agreement.  In other words, the President could be understood to be negotiating pursuant to a delegated congressional power as opposed to under his inherent constitutional powers.

Here I disagree, and accept what appears to be the more conventional view: the President can unilaterally withdraw.  First, it may be true that in order to carry into effect a withdrawal from (say) NAFTA, various changes would need to be made to U.S. law.  But even if that is true, that would not prevent the President from withdrawing from the agreement.  It would simply be the case that certain benefits conveyed by Congress in order to implement the agreement would remain on the books in the U.S. -- but they would no longer be required by any international agreement.  I expect that there are a number of NAFTA benefits that are implemented but executive order pursuant to a delegation, and the President could terminate these.  And Mexico, for example, could change its laws to deny NAFTA benefits to the U.S. upon the President's withdrawal.  The agreement is fundamentally distinct from the implementing legislation, and the President can terminate one even though he lacks authority to terminate the other.

Second, the fact that the trade agreements are negotiated under a congressional delegation of authority does not imply any limitation on the President.  All trade authority delegated to the President is discretionary.  The President is not under any statutory obligation to complete any trade deal.  That being so, I don't see why he would be under any statutory obligation to keep a trade deal in place.  Importantly, neither the NAFTA implementation act nor (as far as I know) the acts implementing other trade deals contain language incorporating the agreement in its entirety into U.S. law.  (Even if they did, that incorporation would also incorporate the withdrawal-by-notice provision.)  The implementing acts simply say Congress "approves" the deal; they do not say a deal shall be made.  For example, the NAFTA implementation act, section 101(b), says only:

    The President is authorized to exchange notes with the Government of Canada or Mexico providing for the entry into force, on or after January 1, 1994, of the Agreement for the United States....

Under this provision the President is not required to provide for the agreement's entry into force.  Since nothing expressly requires the deal to remain in force once it becomes effective, I think it hard to imply such an obligation.  Again, the key is that the President would not violate any U.S. law by withdrawing from the agreement.  

It would, of course, be a different matter if an implementation act required the approval of Congress to withdraw from the agreement, but as far as I know, no such provision exists in any U.S. statute.  Professor Ku points to Section 125 of the WTO implementation act, but it is somewhat different.  It provides a way for Congress to terminate the agreement, including over the objections of the President.  That doesn't say anything about the President's ability to terminate the agreement over the objections of Congress (if anything, by failing to address the President's power to withdraw, it implies that the power is not limited).

So in sum I think President Trump could withdraw from any international agreement he wanted to, provided that in the case of treaties (and perhaps in the case of other binding agreements that are not unconstitutional) he observed the formalities for withdrawal specified in the agreement.

I leave it to readers to decide whether that is a reason to vote for him or a reason to vote against him.