WASHINGTON, D.C. — In today’s Wall Street Journal, Senator Pat Toomey writes about the ongoing Nafta renegotiations, and the dangers of some in the administration who have suggested unilaterally ending the agreement without congressional approval. Read the full op-ed:
By Senator Pat Toomey
May 10, 2018
The Trump administration will soon unveil a “new” North American Free Trade Agreement. U.S. trade negotiators have sought, among other things, to limit its duration, impose new domestic content requirements on certain products, and weaken investor legal protections. Even with these protectionist features, congressional Democrats are unlikely to vote for President Trump’s Nafta 2.0. He will need the support of pro-trade Republicans like me to ensure passage of any new agreement.
To pressure us into voting for an agreement that diminishes free trade, some in the administration suggest offering a grim choice: either approve a diminished Nafta, or the president will unilaterally withdraw the U.S. from the existing Nafta, leaving no Nafta at all.
If presented with this ultimatum, I will vote “no,” urge my colleagues to do likewise, and oppose any effort by the administration to withdraw unilaterally. Pulling out of Nafta by executive fiat would be economically harmful and unconstitutional.
The Framers reserved trade policy for Congress, which has the express authority to establish tariffs and regulate commerce with foreign nations. A president who unilaterally withdrew from Nafta would be directly regulating foreign commerce, imposing significant disruptions on the economy, and infringing on Congress’s status as a coequal branch of government.
There have been instances when presidents have unilaterally terminated treaties. They claimed to be using significant inherent and implied powers on international affairs. But as Justice Anthony Kennedy stated in a 2015 decision, these executive powers aren’t “unbounded.” And none of the handful of treaties that have been terminated unilaterally were principally commercial in nature.
Unilateral executive withdrawal would amount to the president creating new law by himself. Nafta became operative when Congress passed implementing legislation in 1993. Nowhere in the 1993 law, or in any other relevant statute, has Congress delegated to the president authority to terminate a free-trade agreement. A president can no more repeal Nafta than he can repeal ObamaCare or create a new Nafta without Congress’s approval.
Should the administration seek to withdraw from Nafta without congressional consent, I hope my colleagues will join me in employing all legislative means necessary to block the withdrawal. While opposing the president on these matters would be politically difficult for Republicans, acquiescing would result in economic harm and complicity in executive overreach. Both should be unacceptable. We frequently, and rightly, criticized the Obama administration for exceeding its legitimate authority.
Rather than trying to coerce free-trade Republicans into voting for an agreement that weakens trade and the economy, the administration can accept the advice from many members of Congress and others to modernize Nafta in ways that expand trade opportunities without curtailing American consumers’ freedom. Canada’s prohibitive milk and cheese tariffs, as well as its protectionist rules on dairy production, should be moderated. Nafta’s pre-internet intellectual-property rules could be strengthened. Although Mexico has recently opened up its energy sector to foreign investors, these gains are vulnerable to reversal if not ensconced in a new agreement. And the current dollar cap on duty-free sales to Mexico is so low that American retailers and shippers find it impractical to sell to Mexican consumers.
These modifications and others would improve Nafta by expanding American export opportunities and encouraging economic growth. Unilateral executive withdrawal, however, would weaken our economy, diminish the institution of Congress, and undermine our constitutional responsibilities on trade. For all of those reasons, let’s hope the administration chooses an improved Nafta. The real disaster would be a Mexican standoff between Congress and the president.
Source: Pat Toomey, U.S. Senator for Pennsylvania
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