Implementation of Amended NAFTA Could Require Congressional Approval, CRS Says
Historical practice suggests that a full legislative repeal process could be necessary to change the current domestic implementation of NAFTA, should the Trump administration renegotiate the statutorily binding elements of the deal, according to a Congressional Research Service “legal sidebar” (here). The paper seeks to shed light on the issue of whether the president has exclusive authority to domestically implement legal changes pursuant to any NAFTA amendments between parties, as authorized by the agreement. There's been some debate recently on the legal authority the executive branch has to make tariff changes (see 1612150045 and 1611150035).
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Major changes to the agreement “would arguably” require legislative approval, after Congress approved the current form of NAFTA through a 1993 implementation law to largely supersede the previous U.S.-Canada Free Trade Agreement, the CRS said. “When Congress approved NAFTA, it amended the act implementing the prior U.S.-Canada free trade agreement to suspend certain provisions in the act while allowing others to continue to operate,” the CRS said. “Attention will likely focus on whether the agreement resulting from these negotiations must be approved by Congress before it may enter into force and take effect in domestic law,” the CRS said. While the president might argue that the executive branch can domestically implement NAFTA amendments without congressional approval because negotiation of international agreements is generally considered an “exclusive prerogative of the Executive,” adoption of a congressional resolution opposing domestic implementation could make a court more likely to “refrain from giving the agreement legal effect,” it said.
Existing statutes that would apply to NAFTA renegotiation impacts, including the Trade Act of 1974, the Omnibus Trade and Competitiveness Act of 1988 and the NAFTA Implementation Act, apparently don’t address Congress’ role in any NAFTA amendment process. The White House didn’t comment. Observers have speculated that any renegotiation of the agreement could cover tariffs on goods; immigration and border security; Central American cooperation on migration, including drug trafficking, and the illegal flow of arms and money; slashing investor-state dispute settlement provisions; and rules of origin, it said. But “the nature and scope of modifications to NAFTA by the Trump Administration that are under consideration are currently unclear,” the CRS said.
There are some ongoing efforts to clarify the congressional role in trade agreements. Most recently, Rep. Morgan Griffith, R-Va., on Jan. 24 introduced a resolution (here) to establish a congressional "Joint Ad Hoc Committee on Trade Responsibilities" to develop a plan to shift Office of the U.S. Trade Representative functions and responsibilities to Congress, "in accordance with article I, section 8 of the Constitution." Sen. Mike Lee, R-Utah, recently introduced a bill (here) that would make all executive branch trade actions, including tariff raises, subject to congressional approval (see 1701190076).