U.S. Withdrawal from Free Trade Agreements: Frequently Asked Legal Questions
Released: 2016-09-07T00:00:00

Summary:
The United States is party to 14 international free trade agreements (FTAs) with 20 countries. These agreements impose a wide variety of international obligations on the United States and its trading partners. Such obligations address import tariffs, as well as potential nontariff trade barriers. A country that is party to an FTA and that maintains laws, regulations, or practices that violate one of these obligations may be subject to trade retaliation (e.g., other FTA parties may increase tariffs on the country's exports) or may have to pay a fine or monetary compensation to an FTA partner or injured investor. During the past decade, some have suggested that the United States should attempt to renegotiate—and possibly withdraw from—the North American Free Trade Agreement (NAFTA). Such statements have prompted congressional interest in domestic and international legal issues pertaining to U.S. termination of, or withdrawal from, an FTA.
U.S. FTAs have historically been approved as congressional-executive agreements by a majority vote of each house of Congress rather than as treaties ratified by the President after Senate approval by a two-thirds majority vote. FTAs are not self-executing agreements. Thus, legislation is required to provide U.S. bodies with domestic legal authority necessary to enforce and comply with the agreements' provisions. FTAs are legally binding agreements under international law.
All U.S. FTAs that have entered into force as of the date of this report contain provisions allowing for a party's withdrawal from, or termination of, the FTA upon advance notice to the other parties. Questions have arisen regarding whether the President can unilaterally withdraw the United States from such agreements without the consent of Congress. The Constitution does not specifically address withdrawal from treaties or congressional-executive agreements. In some cases, the United States has withdrawn from international legal agreements pursuant to the joint action of the political branches. However, the weight of judicial and scholarly opinion suggests that the President possesses the exclusive constitutional authority to communicate with foreign powers, and such authority might provide the President with a constitutional basis for withdrawing from at least some types of international agreements. The agreement's subject matter, however, might be relevant to a legal analysis. As a practical matter, the President's communication of a notice of withdrawal from an FTA to trade partners in accordance with the FTA's terms would likely release the United States from its international obligations from the effective date of withdrawal onward as provided in the Vienna Convention on the Law of Treaties, which the United States has not ratified but considers to reflect, in many aspects, customary international law. Congress may thus find it difficult to prevent the President from terminating or withdrawing from an FTA. On the other hand, if Congress wanted to pressure the President to withdraw, it could enact a statute (over any presidential veto) that would repeal its approval and implementation in domestic law of an FTA.
Even in the event that the President could properly withdraw from an FTA unilaterally, the President cannot make laws, and thus repeal of federal statutory provisions implementing U.S. FTA obligations requires congressional action. Congress has enacted provisions that appear to delegate to the President authority to repeal some provisions of federal statutory law implementing FTA obligations upon termination of, or U.S. withdrawal from, the agreement. However, the President might not be able to exercise this authority if a court struck down such provisions as unconstitutional or Congress amended or repealed them. Although the President cannot repeal other statutory provisions implementing FTA obligations without further congressional action, if the President identified a federal regulation, order, or practice that implemented FTA obligations, the President may be able to rely on constitutional or statutory authority to repeal or limit the effect of the measure. Such actions by the President may be subject to judicial review.

paragraphs: T he United States is party to 14 international free trade agreements (FTAs) with 20 countries. These agreements impose a wide variety of international obligations on the United States and its trading partners. Such obligations address import tariffs, as well as potential nontariff trade barriers in areas such as agriculture, customs procedures, foreign investment, government procurement, intellectual property protection, and services trade. A country that is party to an FTA and that maintains laws, regulations, or practices that violate one of these obligations may be subject to trade retaliation (e.g., increased tariffs imposed by other FTA parties on its exports) or may have to pay a fine or monetary compensation to an FTA partner or injured investor.
During the past decade, some have suggested that the United States should attempt to renegotiate—and possibly withdraw from—the North American Free Trade Agreement (NAFTA). These people have argued, among other things, that the United States' elimination or reduction of tariffs on imported products in accordance with the agreement has negatively impacted U.S. workers. Such statements have prompted congressional interest in domestic and international legal issues pertaining to U.S. termination of, or withdrawal from, an FTA. No U.S. FTA has been terminated; one has been suspended. The United States and Canada agreed to suspend operation of the U.S.-Canada FTA when NAFTA entered into force on January 1, 1994.
This report provides brief answers to frequently asked legal questions about withdrawal by the United States from an FTA. The answers in the report assume that a court would find a case raising these questions to be justiciable (i.e., that a court could hear the case) and that the plaintiffs had standing (i.e., that a party had a legal right to bring a dispute before a court or other tribunal for possible resolution of the issues in the party's complaint). The report does not analyze other implications (e.g., economic) of U.S. withdrawal from an FTA.
subsections: section_title: General Questions
subsections: section_title: How Does the United States Approve and Enter into FTAs?
paragraphs: The President negotiates FTAs with foreign countries and submits to Congress legislation that would implement the agreements by making "necessary or appropriate" changes to U.S. law. U.S. FTAs have historically been approved as congressional-executive agreements by a majority vote of each house of Congress rather than as treaties ratified by the President after having received the "advice and consent" of a two-thirds majority vote of the Senate. During several periods from 1974 onward, Congress has agreed to make such implementing bills eligible for consideration under expedited ("fast track") procedures if the President adheres to certain trade agreement negotiating objectives defined in statute, and meets other requirements for informing and consulting with Congress. Following congressional enactment of the implementing law, the President exchanges notes with FTA partners and proclaims the agreement to have entered into force. Such proclamations may also include changes to tariff schedules and rules of origin necessary to implement FTA obligations.
section_title: How Do Implementing Laws Change Domestic Law?
paragraphs: FTAs are not self-executing agreements (i.e., implementing legislation is required to provide U.S. bodies with the domestic legal authority necessary to enforce and comply with the agreements' provisions). Thus, if FTA obligations require changes to U.S. federal statutory law, Congress must enact legislation that implements those changes. Although many trade agreement obligations may not require changes to U.S. laws or regulations—or are already implemented in U.S. law—others require Congress to amend, repeal, or create provisions in federal statutory law to eliminate inconsistencies with FTA obligations or make any necessary or appropriate changes to U.S. federal statutory law needed to implement specific obligations contained in the FTA.
Although implementing laws vary, they often alter—or authorize to the President to modify or waive—tariff schedules; rules of origin; government procurement domestic content restrictions; and customs user fees, among other things. Implementing laws may also authorize the President to promulgate or amend regulations to implement FTA obligations. As noted below, most FTA implementing laws provide for their full or partial repeal in the event that the underlying trade agreement terminates. It is also important to note that not all U.S. laws consistent with a particular trade agreement obligation are contained in the act implementing that trade agreement.
section_title: Are FTAs Legally Binding Agreements Under International Law?
paragraphs: As noted above, as a matter of domestic law, FTAs have historically been approved as congressional-executive agreements by a majority vote of each house rather than as treaties ratified by the President after advice and consent of a two-thirds majority of the Senate. However, under international law, FTAs are legally binding agreements (i.e., they are "treaties" under international law, which has a more expansive meaning than the term under U.S. domestic practice, which only refers to those international legal agreements that are submitted to the Senate for advice and consent to ratification). A violation by a party to an FTA of an obligation under the agreement may subject that party to state-to-state dispute settlement or investor-state arbitration proceedings before international tribunals in accordance with the terms of the FTA.
Under the terms commonly employed by FTAs, if the United States violates an FTA obligation, it may be subject to such sanctions as trade retaliation by a complaining country (e.g., increased tariffs on U.S. exports), payment of a fine to an FTA partner country, or payment of compensation to an injured foreign investor. However, under terms of FTAs that have been approved by Congress, neither the decisions of dispute settlement panels nor those of international investment tribunals constituted under an FTA's provisions alter U.S. law.
section_title: Domestic and International Law on Termination of, or Withdrawal from, FTAs
subsections: section_title: How Does International Law Address Termination of, or Withdrawal from, Binding International Agreements?
paragraphs: As noted above, U.S. FTAs are international agreements that impose legally binding international obligations on the United States. The Vienna Convention on the Law of Treaties (Vienna Convention) addresses withdrawal of a party from, and termination of, a binding international agreement in Part V of the Convention. Article 54 states that "termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty.... " As discussed below, all U.S. FTAs that have entered into force as of the date of this report contain provisions allowing for a party's withdrawal from, or termination of, the FTA upon advance notice to the other parties.
The Vienna Convention does not specifically state which government officials of a treaty party have the power to give notice of termination or withdrawal. However, Article 67 states that "Any act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty ... shall be carried out through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the State communicating it may be called upon to produce full powers" (i.e., a document showing that the representative has authority to terminate the agreement on behalf of the state). This language suggests that if the President (i.e., the "head of state" for the United States) communicated a notice of withdrawal from an FTA to the other parties, that action would effectively withdraw the United States from, or terminate, the agreement as a matter of international law.
As described in more detail below, unless the United States and other parties to the FTA otherwise agree or the FTA otherwise provides, termination of an FTA in accordance with its provisions would release the United States from FTA obligations from the date that withdrawal or termination became effective.
section_title: How Do U.S. FTAs Address Termination or Withdrawal?
paragraphs: FTAs that have entered into force with respect to the United States contain short provisions addressing termination of, or withdrawal of a party from, the agreements. These provisions generally require a party that wishes to terminate or withdraw from the agreement to provide advance notice to other parties to the agreement. For example, Article 2205 of NAFTA states that "a Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties. If a Party withdraws, the Agreement shall remain in force for the remaining Parties." 
Withdrawal provisions in U.S. FTAs set forth a specific amount of time that must pass after a party delivers its notice of withdrawal to the other parties before the withdrawing party is released from its international obligations under the agreement. Although the U.S.-Israel FTA establishes a 12-month period between a party's notice of withdrawal and termination of the agreement, subsequent U.S. FTAs, including NAFTA, set forth a six-month period between notice to other parties and termination of, or withdrawal of a party from, the agreement. 
As noted above, no U.S. FTA has been terminated, and only one has been suspended. The United States and Canada agreed to suspend operation of the U.S.-Canada FTA when NAFTA entered into force on January 1, 1994.
section_title: How Do U.S. FTA Implementing Laws and the Trade Act of 1974 Address Termination or Withdrawal?
paragraphs: For the purposes of this section, "termination" refers to a situation in which the FTA ceases to have effect under international law for all parties to the FTA, whereas "withdrawal" refers to a situation in which a multilateral FTA ceases to have effect under international law only for the United States. Section 125 of the Trade Act of 1974, which, among other things, sets up the procedure for Congress's consideration of implementing legislation, specifically addresses termination of FTAs. Historically, the act by which Congress has approved an FTA has also enacted or amended federal laws in order to implement the agreement by bringing the United States into compliance with its international trade obligations in the FTA. Many of these FTA implementing laws contain provisions addressing repeal of implementing provisions in the event that the agreement terminates or a party withdraws from the agreement. 
subsections: section_title: Section 125 of the Trade Act of 1974
paragraphs: Section 125 of the Trade Act of 1974, which Congress has made applicable to most FTAs entered into by the United States, including NAFTA, is also relevant to U.S. withdrawal from an FTA. In particular, subsection (e) of that section, which is titled "Continuation of duties or other import restrictions after termination of or withdrawal from agreements," states the following:
Duties or other import restrictions required or appropriate to carry out any trade agreement entered into pursuant to this chapter ... shall not be affected by any termination, in whole or in part, of such agreement or by the withdrawal of the United States from such agreement and shall remain in effect after the date of such termination or withdrawal for 1 year, unless the President by proclamation provides that such rates shall be restored to the level at which they would be but for the agreement. Within 60 days after the date of any such termination or withdrawal, the President shall transmit to the Congress his recommendations as to the appropriate rates of duty for all articles which were affected by the termination or withdrawal or would have been so affected but for the preceding sentence.
This provision, which does not appear to have been interpreted by a court, appears to provide for the continuation of preferential tariff rates on imports of products from former FTA partner countries for a year from U.S. termination of, or withdrawal from, the FTA, unless the President by proclamation adjusts the rates to those that would be in effect if not for the FTA. Within 60 days after termination of, or U.S. withdrawal from, an FTA, the President "shall" recommend to Congress the appropriate rates of duty for affected imports. This recommendation process would presumably assist Congress in enacting new tariff rates for these products when imported from former FTA countries.
In addition, subsection (b) of Section 125 of the Trade Act of 1974 states that "The President may at any time terminate, in whole or in part, any proclamation made under this chapter." This provision arguably allows the President to terminate proclamations implementing FTA obligations (e.g., proclaimed modifications rules of origin that establish when an imported product is eligible for preferential tariff treatment) for a particular FTA. It is unclear whether it might also cover termination of executive orders, regulations, or policies implementing FTA obligations.
section_title: FTA Implementing Laws
paragraphs: Most U.S. FTA implementing laws provide for repeal of most or all of the statutory provisions in the law upon termination of the agreement. In addition, the NAFTA implementing law states that several provisions of the implementation law will cease to have effect with respect to an FTA partner that "ceases to be a NAFTA country." It could be argued that this provision would be triggered if the United States withdrew from the agreement. The NAFTA implementing law defines "NAFTA country" as those countries (i.e., Canada and Mexico) with respect to which the United States "applies the Agreement." Arguably, the United States would no longer "apply the agreement" with respect to Canada or Mexico after it withdrew from the agreement. Thus, it appears that certain provisions in the implementing law would cease to have effect with respect to Canada and Mexico after U.S. withdrawal.
Congress may enact legislation altering this language on repeal, as it did when the U.S. and Canada agreed to suspend the U.S.-Canada FTA. In that situation, Congress amended the U.S.-Canada FTA implementing act to suspend certain provisions in the act while allowing others to continue to operate.
section_title: Presidential vs. Congressional Authority over U.S. Termination of, or Withdrawal from, FTAs
subsections: section_title: Can the President Withdraw from an FTA Approved as a Congressional-Executive Agreement Without the Consent of Congress?
paragraphs: As noted above, FTAs have historically been approved and implemented in domestic law as congressional-executive agreements by a majority vote in both houses of Congress. Questions have arisen regarding whether the President can unilaterally withdraw the United States from such agreements without the consent of Congress.
The Constitution does not specifically address withdrawal from treaties or congressional-executive agreements. In addition, there is no historical precedent for the President's unilateral withdrawal from an FTA approved as a congressional-executive agreement. Although FTA implementing laws typically provide for repeal of most of their provisions in the event that an FTA terminates, these provisions do not state whether the President may withdraw from an FTA without Congress's approval.
The Constitution apportions authority over international trade between the President and Congress. The President's executive power under Article II of the Constitution has been interpreted as granting the President the "vast share of responsibility" for conducting foreign relations. This authority includes specific Article II powers to appoint ambassadors with advice and consent of the Senate; submit treaties to the Senate; ratify treaties; and act as the Commander in Chief of the armed forces. In addition, the Supreme Court has suggested that the President has exclusive authority to negotiate treaties. On other hand, Article 1, Section 8 of the United States Constitution gives Congress the authority to (1) "lay and collect taxes, duties, imposts, and excises," (2) "regulate commerce with foreign nations," and (3) "make all laws which shall be necessary and proper" to carry out these specific powers. FTAs regulate foreign commerce, which is an area in which Congress has specific constitutional authority.
It could be argued that because international trade is an area of shared constitutional authority, Congress must have a role in any decision by the United States to terminate or withdraw from an FTA. In some cases, the United States has withdrawn from international legal agreements pursuant to the joint action of the political branches. Because FTAs regulate foreign commerce, Congress could also potentially enact legislation that would largely ensure that the United States adheres to, for example, tariff rates established under an FTA.
However, some commentators and the Supreme Court have suggested that the President possesses exclusive constitutional authority to communicate with foreign powers. In the 2015 case Zivotofsky v. Kerry , the Supreme Court described several exclusive powers possessed by the President related to communication with foreign sovereigns, stating that
The President, too, nominates the Nation's ambassadors and dispatches other diplomatic agents. Congress may not send an ambassador without his involvement. Beyond that, the President himself has the power to open diplomatic channels simply by engaging in direct diplomacy with foreign heads of state and their ministers.... Congress, by contrast, has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation.
Thus, if a reviewing court characterized that the President's unilateral withdrawal from an FTA as an exercise of the President's power to communicate with foreign sovereigns, the court might be more likely to uphold such an action. However, not all commentators would agree with such a characterization. 
As a practical matter, the President's communication of a notice of termination of an FTA to trade partners in accordance with the FTA's terms appears sufficient to release the United States from its international obligations from the effective date of withdrawal onward in accordance with the terms of withdrawal provisions in existing FTAs and the rules for withdrawal from treaties in the Vienna Convention. However, additional questions may arise as to what effect the President's termination of the FTA has on provisions implementing FTA obligations in domestic law, as well as to the extent to which the President could effect a withdrawal as to provisions of domestic law that implement an FTA. These questions are addressed below at " Effects and Implementation of Withdrawal ." 
section_title: Can Congress Prevent the President from Withdrawing from an FTA?
paragraphs: As discussed above, the President's delivery of a notice of withdrawal to other FTA partners appears sufficient to terminate the agreements as a matter of international law. However, the President could not repeal federal statutes implementing the FTA in the absence of congressional action because the Constitution gives Congress the authority to impose duties and to "regulate commerce with foreign nations." Although most FTA implementing laws appear to provide for repeal of some provisions of federal statutory law upon termination, Congress could enact legislation over any presidential veto to ensure that federal statutes implementing FTA obligations will remain in effect. 
In addition, some commentators have suggested that Congress could include conditions in legislation approving an FTA to prevent the President from terminating or withdrawing from an FTA; prohibit termination or withdrawal unless certain conditions are met; or prohibit termination or withdrawal unless Congress consents. However, such provisions appear insufficient to prevent the President from delivering a notice of termination in accordance with the terms of an FTA, thereby ending U.S. international obligations under the FTA.
Congress might pressure the President not to withdraw from an FTA in other ways, such as by holding hearings or conducting investigations; attempting to use the appropriations process; refusing to approve treaties or agreements the President has submitted; or declining to consider presidential nominees for other positions.
section_title: Could Congress Force the President to Withdraw from an FTA?
paragraphs: In the past, legislation has been introduced in Congress that would repeal congressional approval of NAFTA and direct the President to deliver a notice of withdrawal to other NAFTA parties. Such legislation raises questions about how Congress might pressure the President to withdraw from an FTA. Courts and commentators have indicated that the Constitution gives the President, and not Congress, the power to communicate with foreign states. Thus, if Congress wanted the United States to withdraw from an FTA and the President did not, it appears that Congress could not deliver notice of withdrawal to FTA partners itself but would have to rely on other means of effecting withdrawal. Of course, even if Congress cannot itself deliver notice of withdrawal, it does not necessarily mean that Congress cannot direct the President to do so. However, the overriding power of the President in communications with foreign entities might likely be interpreted to preclude such action by Congress, and in any case, if Congress attempted such action, the question would arise of how it could enforce performance of its directive.
The Constitution gives Congress the authority to impose duties and to "regulate commerce with foreign nations." One option would be for Congress to enact a statute (possibly over a presidential veto) that would repeal its approval and implementation in domestic law of an FTA. Because courts apply the "last in time" rule, a reviewing court would likely find that the later-in-time inconsistent statute superseded the earlier-in-time implementing law. Such a law, to the extent the President could not avoid implementing or enforcing it consistent with other constitutional or statute-based executive powers, could negate the domestic law effects of the FTA. This might pressure the President to withdraw from the FTA in order to minimize the extent to which the United States would be subject to international dispute settlement or investor-state arbitration for violations of the FTA. The United States would still have an obligation under international law up until the time the President submitted a notice of withdrawal in accordance with the terms of the FTA and that withdrawal became effective.
Congress could also pressure the President in other ways, such as by holding hearings; attempting to use the appropriations process; refusing to approve treaties or agreements the President has submitted; or declining to consider presidential nominees for other positions.
section_title: Effects and Implementation of Withdrawal
subsections: section_title: What Would Withdrawal Mean Under International Law?
paragraphs: Unless the United States and other parties to the FTA otherwise agree—or the FTA otherwise provides—withdrawal from, or termination of, an FTA in accordance with its provisions would release the United States from its international obligations under that FTA from the date that withdrawal or termination became effective. Thus, generally speaking, the United States would not be subject to dispute settlement or investor-state proceedings under the FTA for breaches of agreement obligations that took place after the effective date of withdrawal. However, dispute settlement or investor-state arbitration proceedings that had commenced prior to withdrawal or termination—and potentially those that commenced after termination but were based on alleged violations preceding termination—could likely proceed unless the parties agreed otherwise or the FTA provided otherwise.
section_title: How Would the Repeal Provisions in Implementing Laws Operate?
paragraphs: Most U.S. FTA implementation laws contain language providing for repeal of most provisions in the implementing law in the event that the FTA terminates. For example, the U.S.-Korea FTA Implementation Act states the following in Section 107:
(c) Termination of the Agreement.—On the date on which the Agreement terminates, this Act (other than this subsection and title V) and the amendments made by this Act (other than the amendments made by title V) shall cease to have effect.
As a further example, CAFTA-DR states the following in Section 107:
On the date on which the Agreement ceases to be in force with respect to the United States, the provisions of this Act (other than this subsection) and the amendments made by this Act shall cease to have effect.
The NAFTA implementing law, by contrast, lacks clear language on repeal of provisions implementing the agreement. However, it does contain language that could potentially be construed as repealing some provisions of the NAFTA implementing law at the time the United States determines not to apply the agreement with respect to a NAFTA partner country as a result of U.S. withdrawal from the agreement. Of course, Congress may enact legislation altering these repeal provisions, as it did when the United States and Canada agreed to suspend the U.S.-Canada FTA. In addition, it is important to note that not all U.S. laws consistent with a particular trade agreement obligation are contained in the act implementing that trade agreement.
subsections: section_title: Presentment Clause Issues
paragraphs: Although these repeal provisions do not specifically mention the President, they arguably represent an implied delegation of authority from Congress to the President to determine unilaterally when the agreement has terminated, and thus when the law implementing the agreement, and amendments thereto, become ineffective. Such a delegation by Congress to the President of authority to repeal, unilaterally and permanently, existing provisions of law upon termination of an FTA may raise an issue of whether the delegation violates separation-of-powers principles by contravening the Presentment Clause of the Constitution, which requires that legislation passed by Congress be presented to the President for his signature or veto before it can become law.
In Clinton v. City of New York , the Supreme Court struck down the Line Item Veto Act (LIVA), a law that authorized the President, within five days of signing a bill into law, to make partial cancellation of certain tax and spending provisions in the law if the President determined certain criteria were met. The Court held that the LIVA violated the bicameralism and presentment requirements of the Constitution because the President could effectively repeal acts of Congress without going through the regular legislative process involving House and Senate passage of legislation and presentment of it to the President for his signature or veto. Although the Court's opinion does not provide clear guidance as to when a law violates these constitutional requirements, the Court did indicate that Congress may grant another branch of government the authority to "repeal" laws "upon occurrence of a particular event through provisions of law known as contingent legislation." The Court's opinion also suggests that a provision may be deemed constitutional when (1) it authorizes the President to suspend or repeal a law contingent upon a condition that did not exist when Congress passed the law; (2) it imposes a duty on the President to suspend or repeal the law upon determining the contingency had occurred; and (3) suspension or repeal of the law was "executing the policy that Congress had embodied in the statute." Finally, the Court also suggested that Congress might be able to delegate a greater degree of authority to the President in the areas of foreign trade and foreign affairs.
Although application of the Clinton decision to an FTA repeal provision may present difficulties for a reviewing court, this decision presents a few reasons why a court might deem the "repeal" provisions in FTAs to be constitutional. First, the President's authority to exercise the power depends on a condition that did not exist when Congress passed the FTA implementing law: termination of the underlying FTA. Such an event will likely take place long after the President has signed the bill into law. Second, the repeal provisions do not appear to give the President discretion as to whether to repeal the law upon termination of the FTA. Instead, the provisions set forth which FTA implementing law provisions "shall cease to have effect" on the date the agreement terminates. Third, repeal of the implementing laws would arguably execute Congress's policy in enacting the trade agreement insofar as it ensured that when the agreement terminated as a matter of international law, its implementation in domestic law (e.g., tariff concessions for imports from FTA partners) would also cease. Fourth, the repeal provisions do not allow the President to choose which provisions will terminate. Thus, it does not appear that the President may "effect the repeal of laws for his own policy reasons." Finally, the repeal provisions delegate to the President authority in the area of foreign trade and foreign affairs, where a court would likely accord to Congress's delegations more deference.
section_title: Could the President Unilaterally "Restore" Tariff Rates to What They Would Be in the Absence of the FTA?92
paragraphs: The Constitution grants Congress the power to impose tariffs on imports of products from other countries. The Supreme Court has upheld Congress's authority to delegate to the President the power to set tariffs in accordance with limits set forth in statute. In FTA implementing laws, Congress has authorized the President to proclaim modifications to tariff rates to implement U.S. obligations under the agreements. Subsequently, the President has issued proclamations altering tariff rates in the Harmonized Tariff Schedule of the United States (HTSUS) to implement FTA obligations in accordance with the terms of the delegation from Congress.
In order to adjust tariff rates on products imported from FTA partner countries to what they would be in the absence of the FTA (generally, a higher Most Favored Nation (MFN) rate in column 1 of the HTSUS marked "General"), the President would have to rely upon statutory authority. As noted above, many FTA implementing laws contain provisions providing for automatic repeal of the implementing laws upon termination of (and arguably, U.S. withdrawal from) an FTA. Assuming such provisions are constitutional and that Congress did not amend or repeal them, these provisions would repeal tariff modification authority granted to the President under the FTA implementing bill, arguably rendering invalid presidential proclamations reducing tariffs under these authorities. Generally speaking, tariff rates would then return to what they would be in the absence of proclamations issued by the President under the authority of the implementing law for that particular trade agreement. If the implementing law was not repealed upon termination of, or U.S. withdrawal from, the FTA, on the other hand, then the President might rely on certain provisions in that law to adjust tariff rates to what they had been before the FTA.
In addition, Section 125(e) of the Trade Act of 1974, which Congress has made applicable to most FTAs entered into by the United States, specifically addresses changes to tariff authority when an FTA is terminated or the United States withdraws from it. That provision authorizes the President to proclaim the restoration of tariff rates to what they would be without the FTA (generally, the MFN rate), but states, in general, that the President must recommend to Congress within 60 days of termination or withdrawal "appropriate rates of duty for all articles which were affected by the termination or withdrawal."
section_title: What Could the President Do About Federal Laws Implementing Non-tariff FTA Obligations?
paragraphs: The President cannot make laws, and thus repeal of federal statutory provisions implementing U.S. FTA obligations requires action from Congress. Although provisions in FTA implementing laws may delegate to the President the authority to effect the repeal of some federal statutory provisions implementing non-tariff trade agreement obligations, such provisions do not apply to all federal statutes implementing FTA obligations. In addition, Congress could enact legislation altering this language on repeal. This section addresses what the President could do to avoid enforcement of federal laws implementing FTAs.
Broadly speaking, if the President identified a federal regulation, order, or practice that implements FTA obligations, the President might be able to rely on constitutional or statutory authorities to repeal or limit the effect of the measure. For example, a federal executive branch agency acting within, and consistent with, existing statutory authority could repeal a rule implementing an FTA obligation; issue a new rule that narrowed the regulatory scope of the rule; or alter or issue guidance documents or interpretive rules to indicate less enforcement or more relaxed interpretations of a rule. To the extent that an FTA requires the United States to enforce certain of its laws, the executive branch could also exercise enforcement discretion in order to avoid implementing FTA obligations.
In circumstances in which the executive branch's implementation of a particular FTA obligation depends on the President's exercise of discretionary statutory authority, the President could choose to exercise that authority in a manner that would not implement trade obligations. For example, many U.S. FTA implementing laws amend the Trade Agreements Act of 1979 to authorize the President to waive domestic content restrictions for federal procurement (e.g., the Buy American Act) for eligible goods and services of FTA partner countries. The President could rescind waivers of these restrictions in contravention of FTA procurement obligations. 
Such actions by the President or an executive branch agency could potentially be subject to judicial review on various grounds, including that an agency has exceeded its statutory authority or failed to enforce the law.