Joel P. Trachtman (Tufts University – The Fletcher School of Law and Diplomacy) has posted Terminating Trade Agreements: The Presidential Dormant Commerce Clause versus a Constitutional Gloss Half Empty on SSRN. Here is the abstract:
The U.S. Constitution does not explicitly allocate authority to terminate treaties made pursuant to the Treaty Clause or as congressional-executive agreements. All modern trade treaties of the U.S. are made as congressional-executive agreements. The conventional wisdom among a number of U.S. foreign relations law scholars, as evidenced by the Restatement (Third) of Foreign Relations Law, is that, while congressional or Senate participation is required to make these treaties, the President has the independent power to terminate them. This position, while it may be correct as it pertains to treaties in other fields, takes insufficient account of the fact that, under the Commerce Clause, commerce is an area of exclusive congressional power. This paper argues that the exclusive congressional power over commerce is inconsistent with independent Presidential authority to terminate trade agreements. It also examines existing statutory authority for entry into and operation of trade agreements, and finds no statutory authority for the President to terminate trade agreements. Therefore, the President lacks authority, without new authorization from Congress, to terminate existing trade agreements.
Professor Trachtman is a giant in the field, but this approach strikes me as misconceived. While it may be true that in modern practice all trade agreements are made as congressional-executive agreements, that's not because people think the President lacks power over international commerce. In the post-ratification era — and indeed until the mid-20th century — trade agreements were made as treaties. Moreover, in the modern period, many agreements relating to commerce are made as treaties, including bilateral investment treaties, tax treaties, and intellectual property treaties. (See my discussion of the historical and modern practice here: The Treaty and Its Rivals: Making International Agreements in U.S. Law and Practice). So it is emphatically not the case that "under the Commerce Clause, commerce is an area of exclusive congressional power." Under the commerce clause, the regulation of commerce by statute is an exclusive congressional power (or at least, it's exclusive of the other branches of the federal government; states can regulate, even in modern practice, so long as they do not run afoul of the relatively narrow dormant commerce clause doctrine). But regulation of commerce by treaty is a power of the President with the advice and consent of the Senate.
That's not to say that the President necessarily can terminate trade agreements. My view is that this question cannot be answered in the abstract, but rather must be answered agreement-by-agreement on the basis of the language of the particular statute implementing the agreement. There is not an easy answer based on the constitutional relationship between Congress and the President — in part because the congressional-executive trade agreement is a modern innovation.
Posted at 6:44 AM