Trump says he will unilaterally scrap his own allegedly “Best in History” trade deal with huge tariff hikes on our top two trading partners. Is this constitutional?
Trump claimed USMCA, a NAFTA replacement deal he personally negotiated was the best trade deal in history.
Congress signed off on the deal. Now Trump threatens to scrap it, bypassing the Senate.
There is zero chance that 25 percent tariffs would get through Congress. But Trump says he will do this day one via executive action.
Would that Be Constitutional?
Please consider ArtII.S2.C2.1.10 Breach and Termination of Treaties
Article II, Section 2, Clause 2:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The Constitution sets forth a definite procedure by which the President has the power to make treaties with the advice and consent of the Senate, but it is silent on who has the power to terminate them and how this power should be exercised.1
The United States terminated a treaty under the Constitution for the first time in 1798. On the eve of possible hostilities with France, Congress passed, and President John Adams signed, legislation stating that four U.S. treaties with France
shall not henceforth be regarded as legally obligatory on the government or citizens of the United States.2 When he was Vice-President, Thomas Jefferson referred to the episode as support for the notion that only anact of the legislaturecan terminate a treaty.3 But commentators have since come to view the 1798 statute as a historical anomaly because it is the only instance in which Congress purported to terminate a treaty directly through legislation without relying on the President to provide a notice of termination to the foreign government.4 Moreover, because the 1798 statute was part of a series of congressional measures authorizing limited hostilities against the French Republic, some view the statute as an exercise of Congress’s war powers rather than precedent for a permanent congressional power to terminate treaties.5During the nineteenth century, government practice treated the power to terminate treaties as shared between the Legislative and Executive Branches.6 Congress often authorized7 or instructed8 the President to provide notice of treaty termination to foreign governments during this time. On rare occasions, the Senate alone passed a resolution authorizing the President to terminate a treaty.9 Presidents often complied with the Legislative Branch’s authorization or direction,10 although they sometimes resisted attempts to compel termination of specific articles in treaties when the treaties did not authorize partial termination.
When Congress has passed legislation implementing a treaty into domestic law of the United States, the President likely lacks the authority to terminate the domestic effect of that legislation without going through the full legislative process for repeal of the statute.35
A party’s breach of treaty obligations also can affect termination and withdrawal. Under international law, a party may suspend or terminate a treaty if another party materially breaches its obligations.36 The Supreme Court has appeared to recognize that, at least in the absence of direction from Congress, the President has the power to deem a treaty that has been breached by a foreign nation void and therefore no longer binding.37 The Court also has stated that Congress possesses the power to breach and abrogate a treaty by passing later-in-time legislation that conflicts with U.S. treaty obligations.38
Inflationary Madness
Constitutional or not, and I suggest the action clearly would be unconstitutional, Trump-supporting hypocrites don’t give a damn. Regardless, the action would be economically foolish.
Mexico is the largest trade partner of the US and Canada is number two. It’s highly likely both countries would retaliate with their own 25 percent tariffs.
Assuming so, all goods going to and from the US, Canada, and Mexico would immediately cost 25 percent more.
If you want to take a sledge hammer to the economy on day one and simultaneously create a constitutional mess , this is a perfect way to go about it.
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