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

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.