Law & the Courts

Hocus POTUS

(Reuters photo: Carlos Barria)
On NAFTA, it is the case of Goldwater v. Trump.

President Donald Trump has threatened to unilaterally effect the withdrawal of the United States from the North American Free Trade Agreement.

Can he?

Conservative legal theorists, having done so much to aggrandize presidential powers during the presidency of George W. Bush, have in part prepared the way for him to do so, though it is far from clear that the president has the power to unilaterally terminate a treaty that has been ratified and implemented through legislation passed by Congress and signed into law.

This is the case of Goldwater v. Trump.

In 1978, President Jimmy Carter unilaterally terminated the Mutual Defense Treaty of 1954, which recognized the government of Taiwan and obliged the United States to come to its aid. It seemed obvious to Senator Barry Goldwater, among others, that the president had no such power: The making of treaties requires the advice and consent of the Senate, he reasoned, and as a matter of separation of powers, the president does not have the authority to overturn a Senate action without Senate consent. The district court for the District of Columbia agreed and ruled that President Carter was not entitled to do what he purported to do. The Supreme Court, unhappily, had other views about other aspects of the case, and it vacated the lower court’s decision while leaving the fundamental constitutional question annoyingly — and dangerously — unsettled.

The Supreme Court retreated to an intellectual dodge — one that is dishearteningly popular with many conservative legal thinkers — that the question before them was political rather than judicial. Justice William Brennan disagreed in his dissent, insisting that “the issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts.”

Justice Brennan here has the better argument. It would be nice to know who is in charge.

The day before yesterday, it was an open question whether the president could unilaterally withdraw from a treaty that had not yet been ratified. When President George W. Bush sought to nullify the Comprehensive Test-Ban Treaty, which had been signed and submitted to the Senate but not yet ratified, the State Department advised him that he did not have the power to do so. There was a similar debate surrounding the Rome Statute, which established the International Criminal Court.

To argue that the president has the power to withdraw from a treaty that is signed, ratified, and implemented under law is to argue that the president has the power to nullify federal statute on a whim.

Republican legal thinkers, who during the Bush years did as much as any Obama-worshiping sophomore at Middlebury ever dreamed of to inflate the Cult of the Presidency, have relied on some pretty loosey-goosey argumentation to discover a presidential power to unilaterally abrogate a treaty. The Constitution itself is silent on the question. Michael D. Ramsey of the Federalist Society argues that the Constitution’s investing of the president with “the executive power” of the United States carries within it the power to withdraw from treaties without congressional action. He argues that the executive power — the power to “execute the laws of the United States” — is supplemented by a second and less clearly defined executive power: “From the very beginning of constitutional government,” he writes, “the president has been recognized as the constitutional representative of the U.S. with respect to foreign governments and foreign affairs.”

The obvious problem with this line of thinking is that NAFTA did not become the law of the land on President Bill Clinton’s say-so. It became the law of the land when Congress enacted the North American Free Trade Agreement Implementation Act of 1993. This is not a question of President Trump’s relation with the government of Mexico, but of his relation with the legislative branch of the U.S. government.

To argue that the president has the power to withdraw from a treaty that is signed, ratified, and implemented under law is to argue that the president has the power to nullify federal statute on a whim — his vaguely defined role as commander-in-chief and his vaguely defined foreign-policy powers could be invoked to nullify practically anything. Consider the way federal jurisdiction over “interstate commerce” has been perverted to cover activities that are neither interstate nor commerce, or consider President Trump’s recent argument that he can manage the steel industry from the White House in the name of “national security.” That is not constitutional liberty. That is banana-republic stuff.

This is a separate question from that of the specific merits or defects of NAFTA: About that, President Trump has been characteristically vague, his habitual reliance upon the superlative (“the worst deal ever,” etc.) and his inability to articulate a single objection to a single specific provision of the accord suggesting that he probably does not know what NAFTA says or how it in fact operates. Perhaps here we should slightly amend Salena Zito’s famous formulation: Trump’s objections to NAFTA are serious but not literate.

Conservatives fell into serious error in their enthusiasm to support President George W. Bush, particularly in the matter of the well-intentioned mess he made in the Middle East. My dear friend Andrew C. McCarthy argued that a CIA interrogator doing something heinous to a prisoner “cannot be guilty of torture either since his intent is not to inflict severe pain but to collect life-saving information,” which is to say, that torture is not torture if you are using it as a means to an end rather than simply racking someone recreationally. Other legal luminaries on the Right found in the words “commander-in-chief” a presidential power setting him above the law any time he uttered the magical incantation “national security” — call it Hocus POTUS.

The Right has some thinking to do about free trade. We have some much more important thinking to do about whether laws passed by Congress actually mean anything and whether we intend to make the president into an elected tyrant, Caesar Augustus on the installment plan. If the president has the power to unilaterally dissolve our laws, then they are not laws at all.

— Kevin D. Williamson is National Review’s roving correspondent.

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