The President’s Authority to Withdraw the United States from the North American Free Trade Agreement (NAFTA) Without Further Congressional Action

"NAFTA is an international trade agreement among the United States, Canada, and Mexico that became effective on January 1, 1994. The agreement includes market-opening provisions that remove tariff and nontariff barriers to trade, as well as other rules affecting trade in areas such as agriculture, customs procedures, foreign investment, government procurement, intellectual property protection, and trade in services. Congress approved and implemented NAFTA in domestic law in the NAFTA Implementation Act (P.L. 103-182, 107 Stat. 2057). On May 18, 2017, U.S. Trade Representative Ambassador Robert Lighthizer notified Congress that the Administration intended to renegotiate NAFTA. More than a year later, following the conclusion of the negotiations, President Trump signed a proposed replacement for NAFTA, the United States-Mexico-Canada Free Trade Agreement (USMCA), along with his counterparts from Canada and Mexico. President Trump has at times suggested that he will withdraw the United States from NAFTA unilaterally if Congress does not approve the USMCA.

This report examines the President’s authority to terminate the United States’ international obligations under NAFTA without further action from Congress. It also examines whether the NAFTA Implementation Act, the primary federal statute that implements the agreement in domestic law, would remain in effect if the President successfully terminated U.S. obligations under the agreement. In analyzing these issues, the report focuses on three related questions: (1) whether, under international law, the President may terminate U.S. international obligations under NAFTA without congressional approval; (2) whether, under domestic law, the President, relying on constitutional or statutory authority, may terminate U.S. international obligations under NAFTA unilaterally; and (3) whether the NAFTA Implementation Act would remain in effect if the President successfully terminated U.S. international obligations under the agreement.

With regard to the first question, under international law, the President appears to be able to terminate the United States’ international obligations under NAFTA without congressional approval by delivering six months’ notice of withdrawal to Canada and Mexico, provided such notice later becomes effective (e.g., assuming that a court does not enjoin the Executive from issuing the notice or declare such issuance unlawful)..."
NAFTA

Who Interprets Foreign Law in U.S. Federal Courts?

"Federal courts are frequently called upon to evaluate foreign law in a variety of contexts—from routine breach of contract and tort claims to complex cases implicating the judicial branch’s role in internationalaffairs. In Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., the Supreme Court announced the standard of deference for U.S. federal courts to apply when considering a foreign government’s interpretation of its own law. Prior to the Court’s ruling, federal courts took a range of approaches on the degree of deference given to a foreign government’s official explanation of its domestic law. Some courts viewed a foreign nation’s interpretation as effectively binding (at least as long as it was reasonable), but others were willing to deviate from the nation’s position if it was inconsistent with prior statements or not supported by affidavits and expert testimony. In Animal Science Products, Inc., the Supreme Court unanimously held that federal courts must give “respectful consideration” to a foreign government’s interpretation, but they are not “bound to defer” to that position..."
Foreign law

International Law and Agreements: Their Effect upon U.S. Law

"This report provides an introduction to the roles that international law and agreements play in the United States. International law is derived from two primary sources—international agreements and customary practice. Under the U.S. legal system, international agreements can be entered into by means of a treaty or an executive agreement. The Constitution allocates primary responsibility for entering into such agreements to the executive branch, but Congress also plays an essential role. First, in order for a treaty (but not an executive agreement) to become binding upon the United States, the Senate must provide its advice and consent to treaty ratification by a two-thirds majority. Secondly, Congress may authorize congressional-executive agreements. Thirdly, many treaties and executive agreements are not self-executing, meaning that implementing legislation is required to provide U.S. bodies with the domestic legal authority necessary to enforce and comply with an international agreement’s provisions..."
International law