Mike Ramsey wrote an interesting post recently titled Is the Republican Party Calling for Withdrawal from NAFTA? This question arose because of the following language in the 2016 GOP Platform:
We reject the agendas of both the Kyoto Protocol and the Paris Agreement, which represent only the personal commitments of their signatories; no such agreement can be binding upon the United States ….We will not recognize as binding upon the United States any international agreement forged without the constitutionally required assent of two-thirds of the United States Senate.
Two important things to bear in mind about NAFTA are that it was approved by Congress (narrowly), and it does not purport to bind any subsequent Congress. That's right, it has a six-month opt-out provision, and so Hillary Clinton took this position in 2008: "I'm confident that as president, when I say we will opt out unless we renegotiate, we will be able to renegotiate."
The fact that NAFTA did not really bind the United States beyond the tiny six-month termination period is a strong argument for its constitutionality. Some international accords containing opt-out provisions are customarily adopted as Article II treaties, but NAFTA did not have to go that route, given that it is a commercial arrangement from which we can extricate ourselves at any time without breaking any commitment.
A delegate at the New York ratification convention in 1788 put it this way: "Congress cannot make a treaty for longer than it stands." And true to that principle, Congress did not do so in the case of NAFTA in view of the opt-out provision. The nation's first Secretary of State, Thomas Jefferson, confirmed the constitutional importance of opt-out provisions: "It is desirable, in many instances, to exchange mutual advantages by Legislative Acts rather than by treaty: because the former, though understood to be in consideration of each other, and therefore greatly respected, yet when they become too inconvenient, can be dropped at the will of either party: whereas stipulations by treaty are forever irrevocable but by joint consent…." Of course, the parties can jointly consent to include an opt-out provision in an Article II treaty, but they do not have to.
So, in answer to Mike's question, I don't think the GOP platform was calling for withdrawal from NAFTA as a constitutional matter. At least it shouldn't have done so. But pulling out of NAFTA as a policy matter is entirely lawful under both domestic and international law, and it is something that both of the major-party candidates have legitimately called for at one time or another as a means to insist upon renegotiation.
One last point: some scholars say that the congressional power over commerce allows Congress to approve long-term commercial treaties without two-thirds of the Senate. But not only is this at odds with the plain language of the Treaty Clause; it is also at odds with the public understanding when the Constitution was approved in 1789. As Roger Sherman publicly wrote in 1788, "It is provided by the constitution that no commercial treaty shall be made by the president without the consent of two-thirds of the senators present….”
Posted at 6:18 AM