Power to Terminate U.S. Trade Agreements: The Presidential Dormant Commerce Clause versus an Historical Gloss Half Empty

• Author: Joel Trachtman
• Position: Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University. I am grateful to Justin Erickson for his valuable research assistance, and I am grateful to Dan Bodansky, Curtis Bradley, Harlan Cohen, Jean Galbraith, Michael Glennon, Monica Hakimi, Larry Helfer, Harold Koh, Tim Meyer, and Ganesh Sitaraman for comments...
• Pages: 445-468

Power to Terminate U.S. Trade Agreements:

The Presidential Dormant Commerce Clause

Versus an Historical Gloss Half Empty

J

OEL

P. T

RACHTMAN

*

In a world that is ever more compressed and interdependent, it is essential

the congressional role in foreign affairs be understood and respected. For it

is Congress that makes laws, and in countless ways its laws will and should

shape the Nation’s course. The Executive is not free from the ordinary

controls and checks of Congress merely because foreign affairs are at issue.

It is not for the President alone to determine the whole content of the

Nation’s foreign policy.

1

I. Introduction: Withdrawal and Termination of Trade

Agreements under U.S. Foreign Relations Law

It is remarkable how uncertain the allocation of power within the U.S.

constitutional and statutory system is to withdraw the U.S. from its

international trade treaties or to terminate international trade treaties to

which the U.S. is party. While this issue has been controversial in other

contexts, the allocation of authority to terminate trade agreements (as

opposed to other important treaties) was not a significant political issue in

the modern era until the 2016 election of President Trump, because before

Trump, Presidents supported trade agreements more enthusiastically than

Congress, and so were not expected to withdraw from or terminate trade

treaties in conflict with Congress’ will.

On the other hand, it is well accepted that the U.S. President may make

trade treaties under the Treaty Clause, with the advice and consent of two-

thirds of the Senate.

2

Although it is not free from contention, it is generally

accepted

3

that the U.S. President may also make what, in the international

sphere, are trade treaties, pursuant to statutory authorization from Congress,

* Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts

University. I am grateful to Justin Erickson for his valuable research assistance, and I am

grateful to Dan Bodansky, Curtis Bradley, Harlan Cohen, Jean Galbraith, Michael Glennon,

Monica Hakimi, Larry Helfer, Harold Koh, Tim Meyer, and Ganesh Sitaraman for comments

and suggestions.

1. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2079 (2015) (citations omitted).

2. U.S. C

ONST

. art. II, § 2, cl. 2.

3. Alan S. Lederman, 11th Circuit Declines to Rewrite 20th Century World History, 75-DEC

F

LA

. B.J. 30, 31 (2001).

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446 THE INTERNATIONAL LAWYER [VOL. 51, NO. 3

as “congressional-executive agreements.”

4

Indeed, the latter is the typical

way in which international trade treaties are currently entered into by the

U.S., utilizing the system formerly known as “fast track” and currently

known as “trade promotion authority,” to streamline the ordinary legislative

process to seek simple majorities in both houses of Congress.

5

While the Constitution explicitly allocates power to make Treaty Clause

treaties,

6

and is now understood to allocate power to make congressional-

executive agreements pursuant to ex ante or ex post statutory authorization, it

does not explicitly allocate the power of withdrawal from treaties, or

termination of treaties.

7

This article will examine the possibilities for constitutional interpretation,

the historical practice of the President and Congress in this area, and the

scope of statutory authorization for termination, in order to evaluate the

current scope of Presidential authority to terminate U.S. commercial

treaties. One question this article does not need to address is the permission

to terminate U.S. trade treaties under international law. All modern U.S.

trade treaties, pursuant to statutory requirements, contain withdrawal

provisions, allowing member states to withdraw, generally upon six months’

notice.

8

Justice Jackson in Youngstown observed that “Presidential powers are not

fixed but fluctuate depending upon their disjunction or conjunction with

those of Congress.”

9

Circumstances vary first by the extent of commitment

of power to the President relative to the commitment of power to Congress,

and they also vary by statutory grant or other congressional acceptance.

Given that it is well-understood that the Commerce Clause allocates the

power over commerce to Congress, and implicitly derogates power over

commerce away from the President, the area of commerce may be distinct

from other areas of treaty practice.

10

Thus, as Lawrence Tribe and other scholars have suggested, the mode of

treaty termination should vary by the circumstances.

11

If so, the President’s

4. By “treaty,” this article generally refers to both such congressional-executive agreements,

which of course are “treaties” under international law, as well as to Treaty Clause treaties,

adopted on the advice and consent of two-thirds of the Senate, unless explicitly stated

otherwise. Within the field of commerce, the analysis of the President’s independent power to

terminate a Treaty Clause treaty is likely to be the same as the analysis of the President’s

independent power to terminate a congressional-executive agreement.

5. Edward T. Hayes, International Law, 61 L

A

. B.J. 447, 448 (2014).

6. U.S. C

ONST

. art. II, § 2, cl. 2.

7. Withdrawal by the U.S. and termination at the instance of the U.S. are treated the same

for purposes of the President’s power to carry out termination or withdrawal independently,

and so, hereinafter, each will be generally and collectively referred to as “termination.”

8. 19 U.S.C. § 2135 (1994).

9. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,

concurring).

10. Dennis v. Higgins, 498 U.S. 439, 447 (1991).

11. Lawrence Tribe, A Constitutional Red Herring: Goldwater v. Carter, T

HE

N

EW

R

EPUBLIC

16

(Mar. 17, 1979) (“[T]he very fact that the Constitution does not prescribe a mode of treaty

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