In accordance with the fast track provision of Trade Promotion Authority, Congress is supposed to vote the USMCA up or down, without amendments, within 90 legislative days of the introduction of implementing legislation—an event that may not occur before early 2019, because drafting the implementing legislation will likely consume more than a month. However, juxtaposition of the 6-month termination letter and the fast track timeline implies that congressional deliberations should be concluded while NAFTA termination is still pending.
But Speaker Pelosi created ample precedent for ignoring the fast track timeline in 2008, when she overrode TPA procedures for the Peru, Colombia, and Korea free trade agreements. Assuming she is re-elected speaker in January, what she did to President Bush in 2008 she could do again to President Trump in 2019. As justification, Pelosi could cite the scant consultation between the administration and congressional Democrats before the USMCA text was finalized.
If USMCA is either rejected by Congress when the 6-month termination date arrives, or the vote has not yet been taken, and Trump declares NAFTA dead and gone, what then?
The Trump administration will face multiple lawsuits, filed by business firms, states, senators, and members of Congress, all claiming that Trump lacks the authority to impose tariffs on imports from Canada or Mexico, or to rescind other features of the NAFTA Implementation Act of 1993 (H.R. 3450). Moreover, both H.R. 3450 and the Trade Agreements Act of 1974 outline congressional consultation procedures that the president should follow prior to re-imposing tariffs on Canada and Mexico.
If Trump takes his time on the imposition of new tariffs, North America could reach the middle of 2020 before the politically and commercially disruptive event date. A presidential election will then be in sight, which could be reason for further delay.
But if Trump attempts to circumvent court review and congressional consultations by invoking other statutes to revive pre-NAFTA tariffs,[1] he could spark a congressional firestorm. Article I, section 8 of the US Constitution gives Congress, not the president, jurisdiction over foreign commerce. Congressional outrage could in turn foster sweeping legislation to restrain the president.
Congress enacted several statutes over the past century that gave the president multiple powers to restrict foreign commerce. But those delegated powers could be constrained by fresh legislation attached to a single “must pass” bill. That prospect, together with the adverse financial and business consequences of new tariffs, could well persuade the president to think again.
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