b'(Slip Opinion)\n\nAuthority to Withdraw from the\nNorth American Free Trade Agreement\nThe President may lawfully withdraw the United States from the North American Free\nTrade Agreement without the need for any further legislative action.\nOctober 17, 2018\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked whether the President may lawfully withdraw the United States from the North American Free Trade Agreement (\xe2\x80\x9cNAFTA\xe2\x80\x9d),\nCan.-Mex.-U.S., Dec. 17, 1992, 32 I.L.M. 289 (1993), according to its\nterms, without obtaining approval from Congress. NAFTA is a congressional-executive agreement, negotiated by the President and approved by\nCongress. Article 2205 of the agreement permits a party to withdraw from\nit on six months\xe2\x80\x99 notice. In the legislation approving NAFTA, Congress\nauthorized the President to carry out the agreement and imposed no limits\non his authority to withdraw. Because the Constitution and the governing\nstatute vest the President with the authority to invoke article 2205 of\nNAFTA, we conclude that the President may give notice on behalf of the\nUnited States to withdraw from the agreement without the need for any\nfurther legislative action. 1\nI.\nNAFTA is an international agreement among the United States, Canada, and Mexico that created \xe2\x80\x9ca \xe2\x80\x98free trade zone\xe2\x80\x99 on the North American\ncontinent through the phased elimination or reduction of both tariff and\nnon-tariff barriers to trade.\xe2\x80\x9d Made in the USA Found. v. United States,\n242 F.3d 1300, 1302\xe2\x80\x9303 (11th Cir. 2001). President George H.W. Bush\nnegotiated NAFTA consistent with section 1103(b) of the Omnibus Trade\nand Competitiveness Act of 1988 (\xe2\x80\x9c1988 Act\xe2\x80\x9d), Pub. L. No. 100-418,\n102 Stat. 1107, 1129\xe2\x80\x9330, which entitled certain trade agreements to the\nIn preparing this opinion, we have solicited and considered the views of the Department of State\xe2\x80\x99s Office of the Legal Adviser. See Memorandum for Henry C. Whitaker,\nDeputy Assistant Attorney General, Office of Legal Counsel, from Michael J. Mattler,\nAssistant Legal Adviser for Treaty Affairs, Dep\xe2\x80\x99t of State (Dec. 1, 2017).\n1\n\n1\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\nexpedited parliamentary procedures of the Trade Act of 1974, 19 U.S.C.\n\xc2\xa7 2101 et seq. To qualify for the Trade Act\xe2\x80\x99s procedures, an agreement\nmust be subject to termination \xe2\x80\x9cupon due notice\xe2\x80\x9d at the end of a period\nspecified in the agreement; if the agreement is not terminated at that\ntime, \xe2\x80\x9cit shall be subject to termination or withdrawal thereafter upon not\nmore than 6 months\xe2\x80\x99 notice.\xe2\x80\x9d 19 U.S.C. \xc2\xa7 2135(a). President Bush and\nthe leaders of Canada and Mexico signed NAFTA on December 17,\n1992. 32 I.L.M. at 703. Consistent with the Trade Act, article 2205 of\nNAFTA provides for withdrawal on six months\xe2\x80\x99 notice: \xe2\x80\x9cA Party may\nwithdraw from this Agreement six months after it provides written notice\nof withdrawal to the other Parties. If a Party withdraws, the Agreement\nshall remain in force for the remaining Parties.\xe2\x80\x9d NAFTA art. 2205, 32\nI.L.M. at 703.\nIn 1993, President Clinton submitted to Congress the agreement itself,\na \xe2\x80\x9cstatement of administrative action\xe2\x80\x9d describing the Executive Branch\xe2\x80\x99s\nplan for implementing the agreement, and proposed implementing legislation. H.R. Doc. No. 103-159, vol. 1, at 1\xe2\x80\x932 (1993). The statement of\nadministrative action discussed one potential withdrawal scenario. Reflecting the importance of supplemental agreements on labor and environmental issues to his Administration\xe2\x80\x99s support for NAFTA, President\nClinton advised that if Mexico or Canada ever withdrew from one of\nthose supplemental agreements, the President would, \xe2\x80\x9cafter thorough\nconsultation with the Congress, . . . provide notice of withdrawal under\nthe NAFTA, and cease to apply that Agreement, to Mexico or Canada.\xe2\x80\x9d\nId. at 456. The President did not suggest that notice of withdrawal would\nbe contingent on congressional approval or any other formal action.\nCongress enacted the proposed implementing legislation later that year.\nSee North American Free Trade Agreement Implementation Act\n(\xe2\x80\x9cNAFTA Implementation Act\xe2\x80\x9d), Pub. L. No. 103-182, 107 Stat. 2057\n(1993). In that statute Congress \xe2\x80\x9capprove[d]\xe2\x80\x9d both NAFTA and the statement of administrative action. Id. \xc2\xa7 101(a)(1)\xe2\x80\x93(2), 107 Stat. at 2061\n(codified at 19 U.S.C. \xc2\xa7 3311(a)(1)\xe2\x80\x93(2)). The Act changed U.S. law to\ncomply with the international-law obligations that the United States\nwould assume under NAFTA. The Act also authorized the President, if he\ndetermined that certain conditions had been satisfied, to take steps to\n\xe2\x80\x9cprovid[e] for the entry into force\xe2\x80\x9d of the Agreement with Canada and\n2\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nMexico. 19 U.S.C. \xc2\xa7 3311(b). President Clinton took those steps and\nNAFTA entered into force among the three countries on January 1, 1994.\nOffice of the United States Trade Representative, Executive Office of the\nPresident, North American Free Trade Agreement (NAFTA), https://ustr.\ngov/trade-agreements/free-trade-agreements/north-american-free-tradeagreement-nafta (last visited October 17, 2018).\nII.\nA.\nThe Constitution empowers the President, with the advice and consent\nof the Senate, to make treaties. U.S. Const. art. II, \xc2\xa7 2, cl. 2. The Constitution does not expressly address the procedures by which the United States\nmay enter other forms of international agreements. But from the earliest\ndays of the Republic, it has been established that the President may, on\nbehalf of the United States, \xe2\x80\x9cmake such international agreements as do not\nconstitute treaties in the constitutional sense.\xe2\x80\x9d United States v. CurtissWright Exp. Corp., 299 U.S. 304, 318 (1936); see Weinberger v. Rossi,\n456 U.S. 25, 30 n.6 (1982) (\xe2\x80\x9cWe have recognized . . . that the President\nmay enter into certain binding agreements with foreign nations without\ncomplying with the formalities required by the Treaty Clause[.]\xe2\x80\x9d); see\nalso Memorandum for Ambassador Michael Kantor, U.S. Trade Representative, from Walter Dellinger, Assistant Attorney General, Office of\nLegal Counsel, Re: Whether the GATT Uruguay Round Must Be Ratified\nas a Treaty at 2\xe2\x80\x933 (July 29, 1994); Memorandum for the Attorney General\nfrom J. Lee Rankin, Assistant Attorney General, Office of Legal Counsel,\nRe: Constitutional Aspects of the General Agreement on Tariffs and Trade\nat 26 (Nov. 19, 1954).\nIn some instances, the President may enter into such agreements based\nsolely upon his own constitutional authority. These agreements include\nmilitary truces, agreements to resolve foreign claims, and agreements\nrecognizing a foreign power. See, e.g., Dames & Moore v. Regan, 453\nU.S. 654, 679\xe2\x80\x9383 (1981); United States v. Pink, 315 U.S. 203, 229\xe2\x80\x9330\n(1942); United States v. Belmont, 301 U.S. 324, 330\xe2\x80\x9331 (1937); Louis\nHenkin, Foreign Affairs and the United States Constitution 219\xe2\x80\x9322 (2d\ned. 1996) (\xe2\x80\x9cHenkin\xe2\x80\x9d). Such executive agreements may have legal force\n3\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\nwithout any legislative action. See Am. Ins. Ass\xe2\x80\x99n v. Garamendi, 539 U.S.\n396, 415 (2003); Dames & Moore, 453 U.S. at 682\xe2\x80\x9383; Whether Uruguay\nRound Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232,\n244\xe2\x80\x9345 (1994) (\xe2\x80\x9cUruguay Round Agreements\xe2\x80\x9d); Presidential Authority to\nSettle the Iranian Crisis, 4A Op. O.L.C. 248, 249 (1980).\nIn other instances, the President may negotiate and conclude an international agreement that the full Congress approves through legislation\n(either in advance or after the agreement is concluded). Unlike a treaty,\n\xe2\x80\x9cwhich in a single instrument both constitutes an international obligation\nand may have the force of law, a congressional-executive agreement\ntaking this form consists of two distinct instruments: the international\nagreement . . . concluded by the President, and the authorizing statute to\nwhich it is an incident[.]\xe2\x80\x9d Memorandum for Robert F. Hoyt, General\nCounsel, Dep\xe2\x80\x99t of the Treasury, from Steven G. Bradbury, Principal\nDeputy Assistant Attorney General, Office of Legal Counsel, Re: President\xe2\x80\x99s Authority to Terminate or Amend a Certain CongressionalExecutive Agreement at 5 (May 9, 2008) (\xe2\x80\x9c2008 Bradbury Opinion\xe2\x80\x9d). The\nUnited States has frequently employed such congressional-executive\nagreements to assume major international trade obligations. See Uruguay\nRound Agreements, 18 Op. O.L.C. at 234\xe2\x80\x9335; Richard S. Beth, Cong.\nResearch Serv., R44584, Implementing Bills for Trade Agreements:\nStatutory Procedures under Trade Promotion Authority 2\xe2\x80\x933 (2016);\nRestatement (Third) of the Foreign Relations Law of the United States\n\xc2\xa7 303 reporters\xe2\x80\x99 note 9 (Am. Law Inst. 1987) (noting that \xe2\x80\x9cagreements on\n[tariffs and other trade matters] are now commonly effected by Congressional-Executive agreement\xe2\x80\x9d). NAFTA is such an agreement. The President negotiated and concluded NAFTA, and Congress then approved it by\nenacting the NAFTA Implementation Act, which authorized the President\nto bring NAFTA into force for the United States.\nB.\nYou have asked whether the President may, without obtaining additional congressional authorization, exercise the right of the United States to\nwithdraw from NAFTA. In the 2008 Bradbury Opinion, we addressed a\nsimilar question in response to a request from the Department of the\nTreasury regarding another congressional-executive agreement. Earlier\n4\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nthis year, we addressed this issue in another opinion about a different\ninternational agreement. 2 We provide the same answer today. Where an\ninternational agreement contains defined procedures for termination or\nwithdrawal and Congress approves the agreement without limiting those\nprocedures, the President may invoke the right of the United States to\nterminate or withdraw under those procedures without the need for additional congressional authorization. See 2008 Bradbury Opinion at 5. 3\nWhile there have been fewer occasions to consider the President\xe2\x80\x99s authority to terminate congressional-executive agreements, many precedents support the President\xe2\x80\x99s authority to terminate a treaty pursuant to\nits terms. That authority flows from the President\xe2\x80\x99s constitutional responsibility to \xe2\x80\x9ctake Care that the Laws be faithfully executed,\xe2\x80\x9d U.S. Const.\nart. II, \xc2\xa7 3, which includes the power to execute treaties, see Constitutionality of the Rohrabacher Amendment, 25 Op. O.L.C. 161, 169\xe2\x80\x9370\n(2001) (\xe2\x80\x9cRohrabacher Amendment \xe2\x80\x9d); Constitutionality of Legislative\nProvision Regarding ABM Treaty, 20 Op. O.L.C. 246, 249 (1996). Thus,\n\xe2\x80\x9c[w]here the Senate has consented to a treaty that provides for its termination, it has consented to the President\xe2\x80\x99s implementing that provision,\njust as it has consented to his implementing other provisions of the treaty.\xe2\x80\x9d 2008 Bradbury Opinion at 6. The termination provisions are \xe2\x80\x9csimply\npart of the treaty the President is authorized to execute, according to his\ndiscretion.\xe2\x80\x9d Id.\nThe President\xe2\x80\x99s authority to terminate a treaty also follows from his\nrole as \xe2\x80\x9c\xe2\x80\x98the sole organ of the nation in its external relations, and its sole\nrepresentative with foreign nations.\xe2\x80\x99\xe2\x80\x9d Curtiss-Wright, 299 U.S. at 319\n(quoting then-Rep. John Marshall, 10 Annals of Cong. 595, 613 (1800)).\nAs the Supreme Court has observed, \xe2\x80\x9cthe historical gloss on the \xe2\x80\x98executive Power\xe2\x80\x99 vested in Article II of the Constitution has recognized the\n\n2 Because this opinion may be published prior to that one, we fully explore the issue\nhere rather than rely on our prior opinion as precedent.\n3 Bilateral agreements typically provide for a party to \xe2\x80\x9cterminate\xe2\x80\x9d the agreement; multilateral agreements typically provide a right of \xe2\x80\x9cwithdrawal,\xe2\x80\x9d since those agreements may\nremain in force for other parties. See Anthony Aust, Modern Treaty Law and Practice 245\n(3d ed. 2013). The same legal principles that apply to the President\xe2\x80\x99s authority to terminate international agreements apply equally to his authority to withdraw, and so this\nmemorandum uses the terms interchangeably, as appropriate.\n\n5\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\nPresident\xe2\x80\x99s \xe2\x80\x98vast share of responsibility for the conduct of our foreign\nrelations.\xe2\x80\x99\xe2\x80\x9d Garamendi, 539 U.S. at 414 (quoting Youngstown Sheet &\nTube Co. v. Sawyer, 343 U.S. 579, 610\xe2\x80\x9311 (1952) (Frankfurter, J., concurring)). The President has the \xe2\x80\x9cexclusive authority to determine the time,\nscope, and objectives of international negotiations.\xe2\x80\x9d Unconstitutional\nRestrictions on Activities of the Office of Science and Technology Policy\nin Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, 35 Op. O.L.C. __, at *4 (Sept. 19, 2011)\n(\xe2\x80\x9cOSTP\xe2\x80\x9d) (internal quotation marks omitted). Thus, \xe2\x80\x9c[t]he President has\nthe sole power to negotiate treaties, and the Senate may not conclude or\nratify a treaty without Presidential action.\xe2\x80\x9d Zivotofsky v. Kerry, 135 S. Ct.\n2076, 2086 (2015) (citation omitted). 4\nThe President\xe2\x80\x99s exclusive authority over diplomacy extends not only to\nthe making of treaties, but to their maintenance as well. The Supreme\nCourt has long recognized that \xe2\x80\x9cthe execution of a contract between\nnations is to be demanded from, and, in the general, superintended by the\nexecutive of each nation[.]\xe2\x80\x9d The Schooner Peggy, 5 U.S. (1 Cranch) 103,\n109 (1801). \xe2\x80\x9c\xe2\x80\x98In the conduct of negotiations with foreign governments, it\nis imperative that the United States speak with one voice. The Constitution provides that that one voice is the President\xe2\x80\x99s.\xe2\x80\x99\xe2\x80\x9d Issues Raised by\nForeign Relations Authorization Bill, 14 Op. O.L.C. 37, 40 (1990) (quoting Message to the Senate Returning Without Approval the Bill Prohibiting the Export of Technology for the Joint Japan-United States Development of FS-X Aircraft (July 31, 1989), 2 Pub. Papers of Pres. George\nBush 1042, 1043 (1989)); cf. United States v. Louisiana, 363 U.S. 1, 35\n(1960) (\xe2\x80\x9cThe President . . . is the constitutional representative of the\n4 Specifically, the President has the power \xe2\x80\x9cto make Treaties, provided two thirds of\nthe Senators present concur,\xe2\x80\x9d under Article II, Section 2, Clause 2 of the Constitution.\nThe same clause of the Constitution empowers the President to \xe2\x80\x9cappoint Ambassadors,\xe2\x80\x9d\n\xe2\x80\x9cConsuls,\xe2\x80\x9d and other officers of the United States. Although some appointments require\nthe Senate\xe2\x80\x99s advice and consent, the President alone has the power to remove the executive officers he appoints. See Myers v. United States, 272 U.S. 52, 122 (1926) (\xe2\x80\x9cThe\npower of removal is incident to the power of appointment, not to the power of advising\nand consenting to appointment[.]\xe2\x80\x9d). Just as the textual requirement to obtain Senate\napproval for certain appointments does not imply any role for the Senate in removal, so\ntoo the fact that the Senate must concur in a treaty does not give the Senate any necessary\nrole in treaty termination.\n\n6\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nUnited States in its dealings with foreign nations.\xe2\x80\x9d). As the Nation\xe2\x80\x99s\nchief representative abroad, the President has the authority to determine\nwhether and when the United States should exercise its right to terminate\ntreaties.\nIn evaluating the President\xe2\x80\x99s authority to terminate a treaty without\naction by Congress, we place \xe2\x80\x9csignificant weight\xe2\x80\x9d on \xe2\x80\x9caccepted understandings and practice.\xe2\x80\x9d Zivotofsky, 135 S. Ct. at 2091; see NLRB v. Noel\nCanning, 134 S. Ct. 2550, 2559 (2014) (noting that \xe2\x80\x9clong settled and\nestablished practice is a consideration of great weight in a proper interpretation of constitutional provisions regulating the relationship between\nCongress and the President\xe2\x80\x9d (internal quotation marks and brackets\nomitted)); Dames & Moore, 453 U.S. at 678\xe2\x80\x9386 (describing \xe2\x80\x9ca history of\ncongressional acquiescence in conduct of the sort engaged in by the\nPresident\xe2\x80\x9d). In this regard, however, historical practice has evolved over\ntime. See generally Curtis A. Bradley, Treaty Termination and Historical\nGloss, 92 Tex. L. Rev. 773, 788\xe2\x80\x9399, 807\xe2\x80\x9316 (2014). Although the President\xe2\x80\x99s authority to act unilaterally to terminate a treaty is now well\nestablished, there are a number of early examples involving alternative\nprocedures for treaty termination, including \xe2\x80\x9cdirect congressional action,\ncongressional authorization or direction of presidential action, and senatorial authorization or approval.\xe2\x80\x9d Restatement (Fourth) of the Foreign\nRelations Law of the United States \xc2\xa7 113 cmt. c (Am. Law Inst., Tentative Draft No. 2, 2017); see also id. \xc2\xa7 113 reporters\xe2\x80\x99 note 2 (collecting\nexamples); Edwin S. Corwin, The President: Office and Powers, 1787\xe2\x80\x93\n1984, at 226, 481 n.75 (5th rev. ed. 1984) (similar); Memorandum for the\nSecretary of State from Herbert J. Hansel, Legal Adviser, Dep\xe2\x80\x99t of State,\nRe: President\xe2\x80\x99s Power to Give Notice of Termination of U.S.-ROC Mutual Defense Treaty (Dec. 15, 1978), reprinted in Termination of Treaties:\nThe Constitutional Allocation of Power, S. Comm. on Foreign Relations,\n95th Cong. 395, 400\xe2\x80\x9310 (Comm. Print 1978) (\xe2\x80\x9c1978 Legal Adviser\nMemo\xe2\x80\x9d) (survey of historical practice).\nWhile it would have been convenient had the Founders squarely addressed treaty termination in the constitutional text itself, we are left with\nno such clarity, and the appropriate division of authority between the\nPresident and Congress was hotly debated at the very start of the Republic. Here, as in other areas, \xe2\x80\x9c[a] Hamilton may be matched against a\n7\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\nMadison.\xe2\x80\x9d Youngstown, 343 U.S. at 635 n.1 (Jackson, J., concurring).\nAfter President Washington issued a proclamation to maintain U.S. neutrality in France\xe2\x80\x99s war with Great Britain and other European powers,\nHamilton and Madison famously divided over the President\xe2\x80\x99s powers,\nincluding over whether the President could suspend the treaty of alliance\nwith France without congressional action. Compare Alexander Hamilton,\nPacificus No. 1 (June 29, 1793) (\xe2\x80\x9cHence in the case stated, though treaties\ncan only be made by the President and Senate, their activity may be\ncontinued or suspended by the President alone.\xe2\x80\x9d), reprinted in 15 The\nPapers of Alexander Hamilton 33, 42 (Harold C. Syrett et al. eds., 1969),\nwith James Madison, Helvidius No. 3 (Sept. 7, 1793) (\xe2\x80\x9cNor can [the\nPresident] have any more right to suspend the operation of a treaty in\nforce as a law, than to suspend the operation of any other law.\xe2\x80\x9d), reprinted\nin 15 The Papers of James Madison 95, 99 (Thomas A. Mason et al. eds.,\n1985).\nWhen the United States terminated the treaty of alliance with France\nfive years later, it did so only after an act of Congress. Following the\nXYZ Affair, Congress enacted a series of measures to authorize the\nQuasi-War with France, one of which included a declaration that \xe2\x80\x9cthe\ntreaties concluded with France,\xe2\x80\x9d including the treaty of alliance, \xe2\x80\x9cshall\nnot henceforth be regarded as legally obligatory on the government or\ncitizens of the United States.\xe2\x80\x9d Act of July 7, 1798, ch. 67, 1 Stat. 578,\n578. There was some debate within Congress about whether that step fell\nwithin Congress\xe2\x80\x99s power. See David P. Currie, The Constitution in Congress: The Federalist Period, 1789\xe2\x80\x931801, at 251\xe2\x80\x9352 (1997). Thomas\nJefferson (siding with Madison\xe2\x80\x99s earlier view) opined that \xe2\x80\x9c[t]reaties\nbeing declared, equally with the laws of the U. States, to be the supreme\nlaw of the land, it is understood that an act of the legislature alone can\ndeclare them infringed and rescinded.\xe2\x80\x9d Thomas Jefferson, A Manual of\nParliamentary Practice \xc2\xa7 52 (Samuel H. Smith 1801). The 1798 example, however, \xe2\x80\x9cappears to be the only instance in U.S. history in which\nthe full Congress purported to effectuate a termination directly,\xe2\x80\x9d Bradley,\nTreaty Termination, 92 Tex. L. Rev. at 789, and it might be justified as\nincident to the power of Congress to \xe2\x80\x9cdeclare War,\xe2\x80\x9d U.S. Const. art. I,\n\xc2\xa7 8, cl. 11; see Bradley, Treaty Termination, 92 Tex. L. Rev. at 789\xe2\x80\x9390,\n799 & n.143; William Rawle, A View of the Constitution of the United\n8\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nStates of America 68 (Philip H. Nicklin, 2d ed. 1829) (\xe2\x80\x9cCongress alone\npossesses the right to declare war; and the right to qualify, alter, or annul\na treaty being of a tendency to produce war, is an incident to the right of\ndeclaring war.\xe2\x80\x9d). 5\nThe United States terminated two other treaties prior to the Civil War.\nIn 1846, President Polk requested Congress\xe2\x80\x99s authorization to give notice\nto terminate a treaty with the United Kingdom concerning the Oregon\nterritory. See Bradley, Treaty Termination, 92 Tex. L. Rev. at 790. Although Congress passed an act authorizing the President \xe2\x80\x9cat his discretion\xe2\x80\x9d to do so, Act of Apr. 27, 1846, ch. 4, 9 Stat. 109, 110, some legislators stated that the law was unnecessary because the President could act\nof his own authority or with Senate consent, see 1978 Legal Adviser\nMemo at 403\xe2\x80\x9304; Cong. Globe, 29th Cong., 1st Sess. 159 (1846) (statement of Rep. Smith) (arguing that whether to give notice under the treaty\n\xe2\x80\x9cis a duty that belongs to the President, and he is responsible to the\npeople for his discharge of it\xe2\x80\x9d). In 1855, after President Pierce announced\nhis desire to terminate a Navigation Treaty with Denmark, the Senate\nalone provided him with authorization. Bradley, Treaty Termination,\n92 Tex. L. Rev. at 793; see Franklin Pierce, Second Annual Message\n(Dec. 4, 1854), in 5 A Compilation of the Messages and Papers of the\nPresidents 273, 279 (James D. Richardson ed., 1897) (\xe2\x80\x9cPapers of the\nPresidents\xe2\x80\x9d). Again, some legislators questioned whether congressional\ninvolvement was necessary. 1978 Legal Adviser Memo at 404. Accordingly, prior to the Civil War, the United States had not settled on a clear\n\nIn Chirac v. Lessee of Chirac, 15 U.S. (2 Wheat.) 259, 272 (1817), the Supreme\nCourt referred to the 1798 Act as a \xe2\x80\x9crepeal\xe2\x80\x9d of the treaty of alliance. But that case addressed only the domestic effects of abrogating the treaty, where Congress\xe2\x80\x99s authority is\nwell established, see, e.g., La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460\n(1899); Rohrabacher Amendment, 25 Op. O.L.C. at 169, not whether Congress could\nterminate the treaty as a matter of international law. The Supreme Court has never\ndecided that latter question, nor do we address it here. The 1798 Act led Attorney General\nBiddle to suggest that congressional action might be required to denounce a treaty, see\nInternational Load Line Convention, 40 Op. Att\xe2\x80\x99y Gen. 119, 123 (1941), but that dictum\ndoes not represent the considered view of the Department of Justice. See, e.g., 2008\nBradbury Opinion at 5 n.1; Validity of Congressional-Executive Agreements that Substantially Modify the United States\xe2\x80\x99 Obligations Under An Existing Treaty, 20 Op. O.L.C.\n389, 395\xe2\x80\x9396 n.14 (1996).\n5\n\n9\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\nunderstanding as to the role of Congress and which legislative actor, the\nSenate or the full Congress, had the authority to authorize the action. 6\nOver the course of time, historical practice shifted towards the view\nthat the President could terminate a treaty without congressional authorization. In some instances, the President effectuated the termination, but\nCongress or the Senate then authorized it. Thus, in 1864, in response to\nConfederate raids from Canada, President Lincoln provided notice to\nterminate the Great Lakes Agreement with Great Britain, pursuant to the\nagreement\xe2\x80\x99s notice provision. See Abraham Lincoln, Fourth Annual\nMessage (Dec. 6, 1864), in 6 Papers of the Presidents 243, 246; see also\n12 Charles I. Bevans, Ass\xe2\x80\x99t Legal Adviser, Dep\xe2\x80\x99t of State, Treaties and\nOther International Agreements of the United States of America: 1776\xe2\x80\x93\n1949, at 54 (1971) (\xe2\x80\x9cBevans\xe2\x80\x9d) (text of agreement). A fierce debate in the\nSenate ensued over whether President Lincoln had exceeded his constitutional powers in doing so and whether Congress could properly ratify his\naction. 7 In the end, however, Congress passed a joint resolution authorizing the President\xe2\x80\x99s action. Joint Resolution No. 13 of Feb. 9, 1865, 13\nIn addition to these two examples, President Madison\xe2\x80\x99s Administration exchanged\ndiplomatic correspondence in 1815 regarding the impact of the Napoleonic Wars on a\ncommercial treaty between the United States and the Netherlands; although both countries\nlater disputed the status of the treaty, the United States \xe2\x80\x9csuccessfully argued that it had\nbeen agreed by the Netherlands government and President Madison in 1815 to regard the\ntreaty as terminated.\xe2\x80\x9d 1978 Legal Adviser Memo at 402; see 2 Foreign Relations of the\nUnited States, 1873, at 720\xe2\x80\x9324 (1873). Notwithstanding Madison\xe2\x80\x99s earlier views, his\nAdministration did not seek or obtain congressional approval. There remains some debate,\nhowever, about whether the United States terminated the treaty, or whether the parties\njointly recognized that the treaty had ceased to have effect. Compare Bradley, Treaty\nTermination, 92 Tex. L. Rev. at 796\xe2\x80\x9397, with Myres S. McDougal & Asher Lans, Treaties\nand Congressional-Executive or Presidential Agreements: Interchangeable Instruments of\nNational Policy, 54 Yale L.J. 181, 336 & n.127 (1945).\n7 Compare Cong. Globe, 38th Cong., 2d Sess. 312 (1865) (statement of Sen. Davis)\n(\xe2\x80\x9c[U]ntil it is ratified and confirmed by the action of Congress, as every gentleman\nacknowledges, [the President\xe2\x80\x99s notice] has no effect or operation whatever.\xe2\x80\x9d), and id.\n(statement of Sen. Sumner) (\xe2\x80\x9c[A] treaty may be regarded as to a certain extent a part of\nthe law of the land, to be repealed or set aside only as other law is repealed or set aside:\nthat is, by act of Congress.\xe2\x80\x9d), with id. at 313 (statement of Sen. Johnson) (\xe2\x80\x9cWe know that\nunder the Constitution of the United States, the only organ between the United States and\nforeign Governments is the Executive. They have nothing to do with the Congress of the\nUnited States or with the judiciary of the United States. The whole foreign relations of the\ncountry . . . are to be conducted by the President.\xe2\x80\x9d).\n6\n\n10\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nStat. 568. (The President later rescinded the notice of termination before\nthe six months had expired. See H.R. Doc. No. 56-471, at 33\xe2\x80\x9334 (1900)\n(reprinting diplomatic correspondence).) And in 1911, President Taft\ngave notice to Russia of his intent to terminate a commercial treaty\naccording to its terms, and then submitted a resolution for \xe2\x80\x9cratification\nand approval\xe2\x80\x9d of his action to the Senate. 48 Cong. Rec. 453 (1911).\nCongress enacted a joint resolution that \xe2\x80\x9cadopted and ratified\xe2\x80\x9d the President\xe2\x80\x99s action. Joint Resolution No. 1 of Dec. 21, 1911, 37 Stat. 627\n(1911); Bradley, Treaty Termination, 92 Tex. L. Rev. at 795.\nThat Congress has played a role in terminating treaties does not demonstrate that the President lacks the unilateral authority to do so. Beginning\nwith President McKinley in 1899, and growing over time, Presidents\nincreasingly assumed the authority to terminate a treaty without approval\nby the Senate or the full Congress. Over the past century, \xe2\x80\x9cunilateral\npresidential termination of treaties has . . . become the norm.\xe2\x80\x9d Bradley,\nTreaty Termination, 92 Tex. L. Rev. at 801. As relevant to the case of\nNAFTA, many of these withdrawals have involved commercial treaties.\nFor example:\n\xe2\x80\xa2 In 1899, President McKinley gave notice to denounce portions of\na commercial treaty with Switzerland, Nov. 25, 1850, 11 Stat.\n587, on the ground that those provisions required trade concessions from the United States that the President deemed contrary to\nU.S. policy. See 1978 Legal Adviser Memo at 406.\n\xe2\x80\xa2 In 1936, President Roosevelt notified Italy of his intent to withdraw from an 1871 commercial treaty, on the ground that his Administration wished to take measures against prejudicial trade\ncontrol measures imposed by Italy. See id. at 414\xe2\x80\x9315.\n\xe2\x80\xa2 In 1962, President Kennedy gave notice of the termination of a\n1902 commercial convention with Cuba pursuant to the terms of\nthe treaty. See id. at 420\xe2\x80\x9321.\n\xe2\x80\xa2 In 1985, President Reagan gave notice of the termination of a treaty of friendship, commerce, and navigation with Nicaragua according to its terms. See Treaties Terminated by the President,\n2002 Digest of United States Practice in International Law, ch. 4,\n\xc2\xa7 B(5)(b), at 204.\n11\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\n\xe2\x80\xa2 In 1987, President Reagan gave notice of the termination of the\nUnited States-Netherlands Antilles Income Tax Convention, on\nthe ground that it had facilitated tax evasion using accounts and\ncompanies based in the Antilles. See id.\n\xe2\x80\xa2 In 1995, President Clinton gave notice of the termination of a\n1980 tax treaty with Malta, on the ground that recent changes in\nMaltese law allowed exploitation of the terms of the treaty. See id.\nat 203\xe2\x80\x9304; Dep\xe2\x80\x99t of the Treasury, United States Terminates Tax\nTreaty with Malta, Treas. RR-717, 1995 WL 685012 (Nov. 20,\n1995).\n\xe2\x80\xa2 In 2007, President George W. Bush gave notice to terminate a tax\ntreaty with Sweden because Sweden had abolished the tax in\nquestion. Dep\xe2\x80\x99t of the Treasury, United States Terminates Estate\nand Gift Tax with Sweden, Treas. HP-436, 2007 WL 1724190\n(June 15, 2007).\n\xe2\x80\xa2 In 2016, President Obama gave notice to withdraw the United\nStates from the South Pacific Tuna Treaty in accordance with that\ntreaty\xe2\x80\x99s withdrawal provision. See Treaty Amendment, 2016 Digest of United States Practice in International Law, ch. 4, \xc2\xa7 B, at\n149 (\xe2\x80\x9c2016 Digest of U.S. Practice\xe2\x80\x9d). 8\nIn view of these historical examples of presidential action, combined\nwith what has usually been congressional acquiescence, there can no\nlonger be serious doubt that the President may terminate a treaty in accordance with its terms. See Validity of Congressional-Executive Agreements That Substantially Modify the United States\xe2\x80\x99 Obligations Under an\nExisting Treaty, 20 Op. O.L.C. 389, 395 n.14 (1996) (\xe2\x80\x9c[T]he executive\nbranch has taken the position that the President possesses the authority to\nterminate a treaty in accordance with its terms by his unilateral action[.]\xe2\x80\x9d); Goldwater v. Carter, 617 F.2d 697, 699\xe2\x80\x93708 (D.C. Cir.) (en\nbanc) (per curiam) (upholding President Carter\xe2\x80\x99s authority to terminate a\nmutual defense treaty with the Republic of China according to the treaty\xe2\x80\x99s\nterms), vacated, 444 U.S. 996 (1979); Restatement (Fourth) of Foreign\n8 After further negotiations, the United States rescinded its notice of withdrawal from\nthe South Pacific Tuna Treaty also without seeking or obtaining Congress\xe2\x80\x99s approval. See\n2016 Digest of U.S. Practice at 150.\n\n12\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nRelations Law \xc2\xa7 113(1) (\xe2\x80\x9cAccording to established practice, the President\nhas the authority to act on behalf of the United States in . . . withdrawing\nthe United States from treaties . . . on the basis of terms in the treaty\nallowing for such action (such as a withdrawal clause)[.]\xe2\x80\x9d); id. \xc2\xa7 113\ncmt. c (\xe2\x80\x9cSince [the end of the 19th century], almost all actions to . . .\nwithdraw from treaties have been carried out on behalf of the United\nStates by the President and his or her agents acting unilaterally.\xe2\x80\x9d (citation\nomitted)); Restatement (Third) of Foreign Relations Law \xc2\xa7 339 (\xe2\x80\x9cUnder\nthe law of the United States, the President has the power . . . to suspend or\nterminate an agreement in accordance with its terms[.]\xe2\x80\x9d); Henkin at 213\xe2\x80\x93\n14 (explaining that it is now \xe2\x80\x9caccepted that the President has the authority\nto denounce or otherwise terminate a treaty\xe2\x80\x9d); Curtis A. Bradley, Exiting\nCongressional-Executive Agreements, 67 Duke L.J. 1615, 1623 (2018)\n(observing that the Senate \xe2\x80\x9cknows that presidents claim authority to\ninvoke withdrawal clauses unilaterally\xe2\x80\x9d and \xe2\x80\x9croutinely consents to treaties\ncontaining such clauses\xe2\x80\x9d). In so concluding, we are mindful of the historical examples in which Congress or the Senate has played a role in treaty\ntermination. See, e.g., Van der Weyde v. Ocean Transp. Co., 297 U.S.\n114, 116 (1936). But such examples do not suggest that congressional\napproval is always required\xe2\x80\x94especially since it has, as an historical\nmatter, more often been lacking. The President therefore need not return\nto Congress before terminating or withdrawing from a treaty according to\nits terms.\nC.\nThere has been comparatively less discussion concerning the President\xe2\x80\x99s authority to terminate or withdraw from a congressional-executive\nagreement, as distinct from a treaty. However, we believe that the textual\nand structural reasoning described above, as well as the historical practice, applies \xe2\x80\x9cwith equal force to the President\xe2\x80\x99s authority to terminate\ncongressional-executive agreements according to their terms.\xe2\x80\x9d 2008\nBradbury Opinion at 6. When the President invokes a termination provision in a congressional-executive agreement, he is implementing the laws\nthat Congress has enacted and exercising his own foreign-affairs powers.\nIn doing so, his powers are \xe2\x80\x9cunquestionably expansive, consisting of both\nthe authority provided by Congress\xe2\x80\x99s authorizing legislation and the\n13\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\nPresident\xe2\x80\x99s considerable independent authority to act in the realm of\nforeign affairs.\xe2\x80\x9d Id. In that field the President\xe2\x80\x99s action is \xe2\x80\x9c\xe2\x80\x98supported by\nthe strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who\nmight attack it.\xe2\x80\x99\xe2\x80\x9d Dames & Moore, 453 U.S. at 668 (quoting Youngstown,\n343 U.S. at 637 (Jackson, J., concurring)).\nIt could be argued that the President may not unilaterally terminate a\ncongressional-executive agreement because Congress approved the agreement by statute, and therefore, any changes would require a new statute.\nThat argument parallels one made\xe2\x80\x94ultimately unsuccessfully\xe2\x80\x94in early\ndebates on the President\xe2\x80\x99s authority to terminate treaties, which may also\nhave the force of domestic law. See, e.g., Madison, Helvidius No. 3 (\xe2\x80\x9cNor\ncan [the President] have any more right to suspend the operation of a\ntreaty in force as a law, than to suspend the operation of any other law.\xe2\x80\x9d),\n15 Papers of James Madison at 99; Jefferson, Manual of Parliamentary\nPractice \xc2\xa7 52 (\xe2\x80\x9cTreaties being declared, equally with the laws of the U.\nStates, to be the supreme law of the land, it is understood that an act of the\nlegislature alone can declare them infringed and rescinded.\xe2\x80\x9d). Here too the\nargument fails. As explained above, a congressional-executive agreement\n\xe2\x80\x9cconsists of two distinct instruments,\xe2\x80\x9d both the international agreement\nand the authorizing statute to which it is incident. 2008 Bradbury Opinion\nat 5. When Congress approves an international agreement, that legislative\nact does not make the international agreement itself a statute. The international agreement remains a \xe2\x80\x9cdistinct\xe2\x80\x9d instrument, id., entered into by the\nPresident \xe2\x80\x9cpursuant to his constitutional authority for conducting the\nNation\xe2\x80\x99s foreign affairs,\xe2\x80\x9d Uruguay Round Agreements, 18 Op. O.L.C. at\n234; see also Bradley, Congressional-Executive Agreements, 67 Duke L.J.\nat 1632\xe2\x80\x9334 (2018) (explaining that congressional-executive agreements\n\xe2\x80\x9creflect a combination of congressional and presidential authority\xe2\x80\x9d and\nthat \xe2\x80\x9cCongress has no authority to make binding international agreements\xe2\x80\x9d). Under international law, the mechanism for communicating\ntreaty termination is typically \xe2\x80\x9cthrough an instrument communicated to\nthe other parties\xe2\x80\x9d which only \xe2\x80\x9cthe Head of State, Head of Government, or\nMinister for Foreign Affairs are presumed to have the authority to sign on\nbehalf of the State.\xe2\x80\x9d Vienna Convention on the Law of Treaties art. 67.2,\nopened for signature May 23, 1969, 1155 U.N.T.S. 331. The diplomatic\n14\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nresponsibility for communicating that notice would rest squarely with the\nPresident.\nThe President may thus terminate the international-law obligations of\nthe United States under the terms of an agreement without additional\naction by Congress. The President\xe2\x80\x99s termination of the international\nagreement will not necessarily suspend the operation of any domestic\nimplementing legislation. That question will depend upon the terms of the\nimplementing legislation\xe2\x80\x94whether, for example, Congress has provided\nthat the statute should cease to have effect upon termination of the international agreement. The effect of termination on such implementing\nlegislation, however, is a separate question from whether the President\nmay terminate the international agreement and thereby relieve the United\nStates of its international-law obligations. See Bradley, CongressionalExecutive Agreements, 67 Duke L.J. at 1634 (noting that even if implementing legislation remains in force, that \xe2\x80\x9cdoes not itself disallow a\npresidential termination\xe2\x80\x9d of the international agreement, just as the President may terminate an Article II treaty that has been implemented by\nlegislation).\nIt could also be argued that the President must seek congressional approval in terminating an international trade agreement because Congress\napproved the agreement under its broad authority to \xe2\x80\x9cregulate Commerce\nwith foreign Nations.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 8, cl. 3. But many treaties have\ndealt with \xe2\x80\x9cmatters that were subject to legislation,\xe2\x80\x9d including international trade, Henkin at 195; see also supra pp. 11\xe2\x80\x9312 (discussing examples), and that fact has never been thought to disable the President from\nterminating a treaty without obtaining additional congressional authorization. See, e.g., Bradley, Congressional-Executive Agreements, 67 Duke\nL.J. at 1630 (identifying examples from 1936 and 1985). Given the President\xe2\x80\x99s powers in this area, there is no good reason to believe that the\nConstitution preserves any greater role for Congress in the termination of\na congressional-executive agreement on international trade than on any\nother subject matter. See id. at 1638. It is therefore entirely congruent\nwith the constitutional design for the President to carry out the termination provisions consistent with the agreement as approved by Congress.\nFinally, the historical practice over the past century once again weighs\nin favor of presidential authority. While examples involving congression15\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\nal-executive agreements are not as numerous as those involving treaties,\nPresidents have invoked the right of the United States to withdraw from\nsuch agreements on a number of occasions. In 1975, the Ford Administration gave \xe2\x80\x9cnotice of the intention of the United States to withdraw from\nthe International Labor Organization\xe2\x80\x9d (\xe2\x80\x9cILO\xe2\x80\x9d), which the United States\nhad joined pursuant to a congressional-executive agreement, in accordance with a provision in the ILO constitution requiring two years\xe2\x80\x99 notice\nof withdrawal. Membership and Representation, 1975 Digest of United\nStates Practice in International Law, ch. 2, \xc2\xa7 4(C), at 71 (quoting Secretary of State Kissinger\xe2\x80\x99s letter to the ILO). 9 The authorizing legislation\ndid not limit the President\xe2\x80\x99s authority to withdraw, and President Ford did\nnot seek congressional approval. 1978 Legal Adviser Memo at 423. Indeed, it appears that \xe2\x80\x9cthe issue of Congressional approval was not raised\nin either House of the Congress, despite the fact that a number of members of the Senate and House did not favor withdrawal from the ILO.\xe2\x80\x9d Id.\nSimilarly, in 1983, without seeking congressional approval, the Reagan\nAdministration gave notice to withdraw the United States from the United\nNations Educational, Scientific and Cultural Organization (\xe2\x80\x9cUNESCO\xe2\x80\x9d)\nin accordance with \xe2\x80\x9cthe terms of Article Two Paragraph Six of the\n[UNESCO] Constitution.\xe2\x80\x9d Letter from George P. Shultz, Secretary of\nState, to Amadou-Mahtar M\xe2\x80\x99Bow, Director General, UNESCO (Dec. 28,\n1983), reprinted in 84 Dep\xe2\x80\x99t of State Bull. 41, 41 (Feb. 1984); see also\nAmendments to the Constitution of the United Nations Educational,\nScientific and Cultural Organization, Dec. 8, 1954, T.I.A.S. No. 3469\n(amending UNESCO constitution to provide for withdrawal upon notice).\nAs with the ILO, Congress had approved U.S. membership in UNESCO\nby statute. See Pub. L. No. 79-565, \xc2\xa7 1, 60 Stat. 712, 712 (1946) (codified\n\n9 The United States joined the ILO in 1934. See Pub. Res. No. 73-43, \xc2\xa7 1, 48 Stat.\n1182, 1182 (1934) (codified at 22 U.S.C. \xc2\xa7 271); Proclamation of President Franklin D.\nRoosevelt, Sept. 10, 1934, 49 Stat. 2712 (1934). The ILO constitution was later amended\nto add a withdrawal provision, and the President submitted the amended constitution to\nCongress, which approved it. See Instrument for the Amendment of the Constitution of\nthe International Labor Organization, annex art. 1(5), Apr. 20, 1948, 62 Stat. 3485, 3494\n(providing that \xe2\x80\x9c[n]o Member . . . may withdraw from the [ILO] without giving notice,\xe2\x80\x9d\nand that such notice \xe2\x80\x9cshall take effect two years after the date of its reception\xe2\x80\x9d); H.R. Rep.\nNo. 80-1057, at 10 (1947) (transmittal of the amended constitution); Pub. L. No. 80-843,\n\xc2\xa7 1, 62 Stat. 1151, 1151 (1948) (congressional approval).\n\n16\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nat 22 U.S.C. \xc2\xa7 287m); Constitution of the United Nations Educational,\nScientific and Cultural Organization, Nov. 16, 1945, 61 Stat. 2495, 2519\n(1946). President Reagan\xe2\x80\x99s notice took effect, and the United States\nwithdrew, on December 31, 1984. See Message to the Congress Transmitting the Annual Report on International Activities in Science and Technology (Mar. 20, 1985), 1 Pub. Papers of Pres. Ronald Reagan 319, 321\n(1985).\nThe United States rejoined UNESCO in 2002. See Address to the United Nations General Assembly in New York City (Sept. 12, 2002), 2 Pub.\nPapers of Pres. George W. Bush 1572, 1572 (2002). On October 12, 2017,\nthe Trump Administration again gave notice that the United States intended to withdraw. See Heather Nauert, Dep\xe2\x80\x99t of State, Press Release, The\nUnited States Withdraws from UNESCO (Oct. 12, 2017), https://www.\nstate.gov/r/pa/prs/ps/2017/10/274748.htm (stating that, \xe2\x80\x9c[p]ursuant to\nArticle II(6) of the UNESCO Constitution, U.S. withdrawal will take\neffect on December 31, 2018\xe2\x80\x9d). Once again, the President did not seek\ncongressional approval.\nPresidents have also terminated international agreements for which\nCongress provided advance statutory authorization, without seeking\ncongressional approval for the termination. See, e.g., Diplomatic Note to\nthe Secretariat of Foreign Relations, Mexico, from the U.S. Embassy at 1\n(June 28, 2012) (notice to terminate 1972 agreement on screwworm\neradication); Diplomatic Note to the Ministry of Foreign Affairs of Japan\nfrom the U.S. Embassy at 1 (Dec. 17, 2004) (notice to terminate 1987\ntextile trade agreement); U.S. Trade Representative, Press Release, U.S.\nFiles WTO Case Against EU Over Unfair Airbus Subsidies (Oct. 10,\n2004) (notice to terminate 1992 agreement implementing 1979 agreement\non trade in civil aircraft); Proclamation No. 2763, 12 Fed. Reg. 8866,\n8866\xe2\x80\x9367 (1946) (notice to terminate five bilateral trade agreements);\nBradley, Congressional-Executive Agreements, 67 Duke L.J. at 1638 &\nn.95 (citing examples from the Johnson, Eisenhower, and Truman Administrations); Randall H. Nelson, The Termination of Treaties and Executive\nAgreements by the United States: Theory and Practice, 42 Minn. L. Rev.\n879, 880\xe2\x80\x9381 n.7 (1958) (collecting additional examples). 10 Some of those\n10 For the respective statutory bases of these congressional-executive agreements, see\n21 U.S.C. \xc2\xa7 114b (1970) (screwworm agreement); 7 U.S.C. \xc2\xa7 1854 (1982) (textile agree-\n\n17\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\nactions concerned termination by mutual consent of the parties or by the\nsupersession of a later agreement. See, e.g., 2016 Digest of U.S. Practice\nat 477 (supersession of 1960 U.S.-Mexico air transportation services\nagreement by new agreement); 49 U.S.C. \xc2\xa7 1462 (1958) (statutory basis\nfor 1960 agreement). But even these precedents illustrate the established\npractice of the President ending congressional-executive agreements\nwithout involving Congress.\nWhile history provides ample precedent for the President\xe2\x80\x99s authority to\nwithdraw without congressional approval, it is also true that, as with\ntreaties, there have been instances where Congress purported to direct the\ntermination of congressional-executive agreements. The Comprehensive\nAnti-Apartheid Act of 1986, for example, provided that \xe2\x80\x9c[t]he Secretary\nof State shall terminate\xe2\x80\x9d an air services agreement with South Africa, Pub.\nL. No. 99-440, \xc2\xa7 306(b)(1), 100 Stat. 1086, 1100, an agreement which\nCongress had authorized, see 49 U.S.C. \xc2\xa7 602 (1940). The Secretary of\nState then terminated the agreement. See South African Airways v. Dole,\n817 F.2d 119, 121 (D.C. Cir. 1987); see also infra p. 23 (discussing\nexample in which Congress purported to reserve for itself the power to\n\xe2\x80\x9cannul\xe2\x80\x9d mail privileges Congress authorized the President to extend to\nMexico and Canada by international agreement); Walter McClure, International Executive Agreements 29 (1941) (noting congressional authorization in 1923 for the termination of certain executive agreements relating\nto the Panama Canal, which Congress had ratified). But, as with treaties,\nsuch examples suggest only that Congress has sometimes sought to play a\nment); 19 U.S.C. \xc2\xa7 2503(c)(10) (1982) (aircraft trade agreement); 19 U.S.C. \xc2\xa7 1351\n(1940) (bilateral trade agreements). In addition to these examples, President Kennedy\ngave notice in 1962 to terminate a 1934 trade agreement with Cuba. 1978 Legal Adviser\nMemo at 421; see also 6 Bevans at 1163 & n.5. The 1934 trade agreement was a congressional-executive agreement: President Roosevelt had entered into it pursuant to the Tariff\nAct of 1930. See Reciprocal Trade Agreement, Cuba-U.S., Aug. 24, 1934, 49 Stat. 3559,\n3559 (1936); see also id. art. XVII, 49 Stat. at 3568\xe2\x80\x9369 (termination provision). The\nUnited States and Cuba had suspended the 1934 trade agreement in 1947 but had reserved\neach country\xe2\x80\x99s right to terminate it. See Exclusive Agreement Between the United States\nof America and the Republic of Cuba Supplementary to the General Agreement on Tariffs\nand Trade, Cuba-U.S., \xc2\xb6 1, Oct. 30, 1947, 61 Stat. 3699, 3700; Exchange of Letters,\nCuba-U.S., Oct. 30, 1947, T.I.A.S. No. 1703, in 6 Bevans at 1231\xe2\x80\x9333. When President\nKennedy terminated the agreement pursuant to that reservation of rights, he did so\nwithout seeking congressional approval. 1978 Legal Adviser Memo at 421.\n\n18\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nrole in the process, not that congressional approval is necessary. Where\nCongress has not sought to involve itself in the process, the President is\nnot constitutionally required to seek congressional approval before invoking the terms of a congressional-executive agreement to terminate or\nwithdraw from the agreement.\nIII.\nIn view of the principles discussed above, we have no difficulty concluding that the President has the authority, without further action by\nCongress, to give notice on behalf of the United States to withdraw from\nNAFTA according to its terms. NAFTA contains an express mechanism\nfor withdrawal, and nothing in the NAFTA Implementation Act or any\nother statute purports to limit the President\xe2\x80\x99s authority to carry out that\nmechanism.\nPresident Bush conducted the negotiations that led to NAFTA under the\nauthority granted to him by Article II and consistent with the procedures\nspecified by Congress to make the trade agreement eligible for fast-track\nconsideration, see 19 U.S.C. \xc2\xa7\xc2\xa7 2902\xe2\x80\x932903, and he signed NAFTA on\nbehalf of the United States in 1992. NAFTA provides that \xe2\x80\x9c[a] Party may\nwithdraw from this Agreement six months after it provides written notice\nof withdrawal to the other Parties.\xe2\x80\x9d NAFTA art. 2205, 32 I.L.M. at 703.\nCongress \xe2\x80\x9capprove[d]\xe2\x80\x9d NAFTA in its entirety and without reservation,\nincluding article 2205. See 19 U.S.C. \xc2\xa7 3311(a)(1). Pursuant to the\nNAFTA Implementation Act, id. \xc2\xa7 3311(b), President Clinton directed an\nexchange of notes with Canada and Mexico and provided for NAFTA\xe2\x80\x99s\n\xe2\x80\x9centry into force on January 1, 1994.\xe2\x80\x9d Memorandum on Implementation\nof NAFTA (Dec. 27, 1993), 2 Pub. Papers of Pres. William J. Clinton\n2206, 2206 (1993).\nAs the constitutional actor with \xe2\x80\x9cexclusive prerogatives in conducting\nthe Nation\xe2\x80\x99s diplomatic relations,\xe2\x80\x9d OSTP, 35 Op. O.L.C. __, at *4, the\nPresident may invoke NAFTA\xe2\x80\x99s withdrawal provision on behalf of the\nUnited States to communicate the notice of withdrawal to Canada and\nMexico. The President\xe2\x80\x99s role as the agent of the United States in conducting diplomacy, coupled with his constitutional responsibility to execute\nthe laws, justifies \xe2\x80\x9cpresum[ing] (at least absent evidence to the contrary)\nthat Congress, in approving an international agreement . . . , intended for\nthe President to administer the agreement in accordance with its terms.\xe2\x80\x9d\n19\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\n2008 Bradbury Opinion at 8 (citing Goldwater, 617 F.2d at 708). No\nlanguage in the NAFTA Implementation Act limits his authority to do so,\nor rebuts the presumption that, \xe2\x80\x9cin approving an international agreement\xe2\x80\x9d\nlike NAFTA, Congress \xe2\x80\x9cintended for the President to administer the\nagreement in accordance with its terms.\xe2\x80\x9d Id. A presidential act withdrawing from NAFTA under the terms of article 2205 would therefore be\nsupported by both the President\xe2\x80\x99s own independent foreign-affairs authority and Congress\xe2\x80\x99s approval through the NAFTA Implementation Act\xe2\x80\x94\nputting the President\xe2\x80\x99s authority at its constitutional zenith. See Youngstown, 343 U.S. at 635 (Jackson, J., concurring).\nOther provisions in the statute confirm that Congress left the President\nbroad discretion to implement the agreement. Congress expected the\nPresident, for example, to exchange notes with Canada and Mexico to\nmake NAFTA effective, and to determine whether those countries had\nimplemented sufficient changes to their domestic laws to permit NAFTA\nto enter into force. 19 U.S.C. \xc2\xa7 3311(b)(1)(A). Congress charged the\nExecutive Branch with administering NAFTA and its authorizing statute\nthrough appropriate proclamations, regulations, and other executive\naction. Id. \xc2\xa7\xc2\xa7 3314, 3331, 3332(q), 3372. Congress\xe2\x80\x99s broad delegations to\nthe President of the authority to take action consistent with NAFTA and\nits implementing statute presumptively include the power to invoke the\nagreement\xe2\x80\x99s withdrawal provision. See 2008 Bradbury Opinion at 8. The\ndelegations reflect \xe2\x80\x9ccongressional acceptance of a broad scope for executive action,\xe2\x80\x9d Dames & Moore, 453 U.S. at 677, in the administration of\nNAFTA, including in making determinations about whether and when to\nwithdraw from that agreement.\nIndeed, far from restricting that authority, the relevant provisions of the\nNAFTA Implementation Act authorize the President to take any and all\nactions consistent with NAFTA\xe2\x80\x99s terms. In the Act, Congress \xe2\x80\x9capprove[d]\xe2\x80\x9d \xe2\x80\x9cthe statement of administrative action\xe2\x80\x9d that President Clinton\nsubmitted along with NAFTA. 19 U.S.C. \xc2\xa7 3311(a)(2). That statement had\nexplained that the President would, after \xe2\x80\x9cconsultation\xe2\x80\x9d with Congress,\ninvoke article 2205 to withdraw the United States from NAFTA if Mexico\nor Canada failed to abide by three supplemental agreements. H.R. Doc.\nNo. 103-159, vol. 1, at 456. And even that pledge to consult with Congress before withdrawing from the agreement was not compelled by\nanything in the NAFTA Implementation Act. The Act requires the President to consult with Congress in many instances before exercising his\n20\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nauthority to proclaim tariffs and other matters under the NAFTA Implementation Act. See, e.g., 19 U.S.C. \xc2\xa7 3313(a). But the Act does not call\nfor consultation before the President makes a decision to withdraw from\nNAFTA. The NAFTA Implementation Act thus confirms that the President may withdraw from the Agreement without obtaining congressional\napproval. 11\nHad Congress sought to restrict the President\xe2\x80\x99s discretion in this regard,\nit would have said so expressly. The NAFTA Implementation Act is filled\nwith provisions anticipating that NAFTA might cease to be effective as\nbetween the United States and Canada or Mexico (e.g., through withdrawal). Yet none restricts the President\xe2\x80\x99s power to invoke NAFTA\xe2\x80\x99s withdrawal provision. Section 2, for example, generally defines the term\n\xe2\x80\x9cNAFTA country\xe2\x80\x9d to mean:\n(A) Canada for such time as the Agreement is in force with respect to, and the United States applies the Agreement to, Canada;\nand\n(B) Mexico for such time as the Agreement is in force with respect to, and the United States applies the Agreement to, Mexico.\n19 U.S.C. \xc2\xa7 3301(4). Section 109(b), entitled \xe2\x80\x9cTermination of NAFTA\nStatus,\xe2\x80\x9d provides that, \xe2\x80\x9c[d]uring any period in which a country ceases to\nbe a NAFTA country, sections 101 through 106 shall cease to have effect\nwith respect to such country.\xe2\x80\x9d Id. \xc2\xa7 3311 note. Section 415 similarly\nprovides that title IV of the NAFTA Implementation Act, governing\ndispute resolution between the parties to the agreement, generally \xe2\x80\x9cshall\ncease to have effect\xe2\x80\x9d with respect to a country \xe2\x80\x9con the date on which a\ncountry ceases to be a NAFTA country.\xe2\x80\x9d Id. \xc2\xa7 3451; see also NAFTA\nImplementation Act \xc2\xa7 203(b)(1), 107 Stat. at 2088 (amending 19 U.S.C.\n\xc2\xa7 1311 to provide a rule for drawback of certain duties \xe2\x80\x9c[i]f Canada\nceases to be a NAFTA country\xe2\x80\x9d); id. \xc2\xa7 203(b)(2)(B) & (C), (b)(3),\n(b)(4)(B), (b)(5)(A)(i), 107 Stat. at 2089\xe2\x80\x9391 (making similar amendments\n\n11 We note that there is at least one statement in the legislative history suggesting that\ncongressional approval may be required. See 139 Cong. Rec. 29,784 (1993) (statement of\nRep. Franks) (\xe2\x80\x9c[U]nder article 2205, each country has the opportunity to withdraw from\nNAFTA. All it would require for U.S. withdrawal, is a vote of the Congress and 6 months\n[sic] notice.\xe2\x80\x9d). That statement, however, finds no support in either article 2205 or the\nNAFTA Implementation Act, so we do not rely upon it.\n\n21\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\nto other provisions). Congress plainly anticipated these possibilities, yet\ndid not purport to restrict the President\xe2\x80\x99s authority to bring them about.\nCongress in fact has acknowledged the President\xe2\x80\x99s authority to exercise\nthe termination right of the United States under the free trade agreement\nwith Canada that preceded NAFTA. Before reaching the NAFTA deal, the\nUnited States and Canada entered into a bilateral free trade agreement,\nCFTA, which Congress approved by statute. See United States-Canada\nFree-Trade Agreement Implementation Act of 1988 (\xe2\x80\x9cCFTA Implementation Act\xe2\x80\x9d), Pub. L. No. 100-449, \xc2\xa7 101(a)(1), 102 Stat. 1851, 1852 (codified at 19 U.S.C. \xc2\xa7 2112 note). The agreement allowed either party to\nterminate on six months\xe2\x80\x99 notice if the parties failed to agree in the future\non revised rules for certain duties. United States-Canada Free-Trade\nAgreement, Can.-U.S., art. 1906, Dec. 22, 1987\xe2\x80\x93Jan. 2, 1988, 27 I.L.M.\n293, 390. Section 410(a) of the implementing law required the President\nto submit a report \xe2\x80\x9cif the President decide[d] not to exercise the rights of\nthe United States . . . to terminate\xe2\x80\x9d the agreement under that provision.\n102 Stat. at 1897. No provision of the CFTA Implementation Act expressly conferred upon the President the authority to exercise the right of the\nUnited States to terminate, but this reporting requirement unequivocally\nconfirms that Congress believed such authority rested with the President.\nThere is every reason to think (and no reason to doubt) that Congress\nembraced a similar understanding with respect to the United States\xe2\x80\x99\nparallel withdrawal right under NAFTA.\nThe 1988 Act and the Trade Act of 1974 are similarly consistent with\nthis understanding of the President\xe2\x80\x99s withdrawal authority. NAFTA\xe2\x80\x99s\nnegotiations were consistent with the statutory frameworks, and it was\napproved under both statutes. Section 125(a) of the Trade Act requires\nthat trade agreements \xe2\x80\x9centered into under [the Trade Act] shall be subject\nto termination, . . . or withdrawal, upon due notice, at the end of a period\nspecified in the agreement.\xe2\x80\x9d 19 U.S.C. \xc2\xa7 2135(a). Section 125(b) provides\nthe President with broad authority to \xe2\x80\x9cat any time terminate . . . any proclamation made under\xe2\x80\x9d it, but does not speak to the termination of trade\nagreements. Id. \xc2\xa7 2135(b). In both the Trade Act and the 1988 Act, Congress specified that congressional approval would be required for certain\nkinds of trade agreements to \xe2\x80\x9center into force with respect to the United\nStates.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa7 2112(e), 2903(a)(1). Congress did not, however, reserve a\nsimilar role for itself in the process of withdrawing from any such agreements. Indeed, \xe2\x80\x9c[v]arious forms of this trade legislation date back at least\n22\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\nto the Trade Act of 1930, and yet in the succeeding eighty-eight years\nCongress has never sought to limit presidential termination in this legislation.\xe2\x80\x9d Bradley, Congressional-Executive Agreements, 67 Duke L.J. at\n1635. And section 102(a) of the Trade Act encourages the President \xe2\x80\x9cto\ntake all appropriate and feasible steps within his power (including the full\nexercise of the rights of the United States under international agreements)\xe2\x80\x9d to eliminate distortions of international trade, once again reflecting the background assumption that the President \xe2\x80\x9cexercise[s] . . . the\nrights of the United States\xe2\x80\x9d under its international agreements. 19 U.S.C.\n\xc2\xa7 2112(a).\nIn other cases, Congress has been explicit when it sought to play a role\nin the termination of international agreements authorized by statutes. \xe2\x80\x9cFor\nexample, in 1960 Congress authorized the President to enter into postal\nagreements with Mexico and Canada that would extend to those nations\nthe privilege of transporting mail over United States territory.\xe2\x80\x9d 2008\nBradbury Opinion at 9. Congress \xe2\x80\x9cprovided that \xe2\x80\x98the President or Congress may annul the privilege at any time.\xe2\x80\x99\xe2\x80\x9d Id. (quoting Pub. L. No. 86682, sec. 1, \xc2\xa7 6103, 74 Stat. 578, 688 (1960)). That and other examples\ndemonstrate that Congress \xe2\x80\x9cis readily capable of indicating its intention to\nhave a role by statute in the termination of agreements it has authorized.\xe2\x80\x9d\nId. Yet it did not do so in implementing NAFTA. 12\nWe conclude therefore that, consistent with long-standing executive\nbranch practice and the NAFTA Implementation Act, the President may\ninvoke article 2205 of NAFTA to withdraw from the agreement in six\nmonths, without obtaining congressional approval. That withdrawal, once\nit took effect, would mean that the United States is no longer bound by\nNAFTA as a matter of its international obligations.\nIV.\nWithdrawing from NAFTA would also have consequences under U.S.\ndomestic law. For instance, many provisions of the NAFTA Implementation Act apply to \xe2\x80\x9ca NAFTA country\xe2\x80\x9d or \xe2\x80\x9cNAFTA countries.\xe2\x80\x9d See, e.g.,\n19 U.S.C. \xc2\xa7\xc2\xa7 3311 note, 3333, 3334, 3335, 3371, 3372, 3391(b)(1). Sec12 Because Congress did not purport to limit the President\xe2\x80\x99s authority to terminate\nNAFTA, we have no occasion to address constitutional limits on Congress\xe2\x80\x99s ability to do\nso.\n\n23\n\n\x0c42 Op. O.L.C. __ (Oct. 17, 2018)\n\ntion 2(4) provides that Canada and Mexico are each a \xe2\x80\x9cNAFTA country,\xe2\x80\x9d\nand thus entitled to receive certain trade benefits prescribed throughout\nthe Act, \xe2\x80\x9cfor such time as the Agreement is in force with respect to, and\nthe United States applies the Agreement to,\xe2\x80\x9d each country. Id. \xc2\xa7 3301(4)\n(emphasis added). After withdrawing from NAFTA, the United States\nwould no longer be \xe2\x80\x9cappl[ying]\xe2\x80\x9d the agreement to either country, and\ntherefore, they would cease to be NAFTA countries for purposes of the\nAct.\nThe fact that the President\xe2\x80\x99s invocation of article 2205 could trigger\nthat event is unremarkable. When the President terminates a selfexecuting treaty, the domestic-law consequence is similar, and the\nSupreme Court has long recognized that Congress may authorize the\nPresident to execute the law in a manner that terminates the legal effect\nof statutory provisions. See Marshall Field & Co. v. Clark, 143 U.S.\n649, 690\xe2\x80\x9391 (1892) (discussing \xe2\x80\x9cthe sanction of many precedents in\nlegislation\xe2\x80\x9d that \xe2\x80\x9cinvest the president with large discretion in matters\narising out of the execution of statutes relating to trade and commerce\nwith other nations\xe2\x80\x9d); see also, e.g., The Orono, 18 F. Cas. 830, 830\n(C.C.D. Mass. 1812) (No. 10,585) (Story, Circuit Justice) (upholding the\nPresident\xe2\x80\x99s statutory authority to drop trade restrictions against Great\nBritain and France upon finding that those countries had modified edicts\nharmful to U.S. trade); Department of Defense Appropriations Act,\n1991, Pub. L. No. 101-511, \xc2\xa7 8105(d)(2), 104 Stat. 1856, 1902 (1990)\n(codified as amended at 10 U.S.C. \xc2\xa7 113 note) (authorizing the President\nto waive statutory limits capping the number of troops stationed in\nJapan); 22 U.S.C. \xc2\xa7 2370a(g) (providing that the President may \xe2\x80\x9cwaive\xe2\x80\x9d\nprohibitions on foreign assistance to foreign nations that wrongfully\nexpropriate property of Americans); 50 U.S.C. \xc2\xa7 4305(a) (authorizing\nthe President to \xe2\x80\x9csuspend\xe2\x80\x9d prohibitions on trade with an ally of an enemy of the United States during wartime). Thus, in providing notice\nunder article 2205, the President would be acting pursuant to the terms\nof the agreement and would be both carrying out legislation that Congress properly authorized him to implement and exercising his foreignaffairs powers. He would be executing the laws, not unmaking them.\nFinally, while the President\xe2\x80\x99s authority to withdraw under article 2205\nis based upon his Article II authority, in addition to the statute, the Supreme Court has made clear that in the field of foreign affairs, Congress\nmay delegate broad discretion to the Executive. When the President acts\n24\n\n\x0cAuthority to Withdraw from the North American Free Trade Agreement\n\n\xe2\x80\x9cas the sole organ of the federal government in the field of international\nrelations,\xe2\x80\x9d the Constitution does not require Congress \xe2\x80\x9cto lay down narrowly definite standards by which the President is to be governed.\xe2\x80\x9d\nCurtiss-Wright, 299 U.S. at 320, 322; see also Zivotofsky, 135 S. Ct. at\n2089 (recognizing that, under Curtiss-Wright, \xe2\x80\x9cCongress may grant the\nPresident substantial authority and discretion in the field of foreign affairs\xe2\x80\x9d); Youngstown, 343 U.S. at 636 n.2 (Jackson, J., concurring) (\xe2\x80\x9c[T]he\nstrict limitation upon congressional delegations of power to the President\nover internal affairs does not apply with respect to delegations of power in\nexternal affairs.\xe2\x80\x9d). Many volumes \xe2\x80\x9cof the United States Statutes contain[]\none or more acts or joint resolutions of Congress authorizing action by the\nPresident in respect of subjects affecting foreign relations, which either\nleave the exercise of the power to his unrestricted judgment, or provide a\nstandard far more general than that which has always been considered\nrequisite with regard to domestic affairs.\xe2\x80\x9d Curtiss-Wright, 299 U.S. at\n324.\nIn this opinion, we do not address the full range of domestic-law implications that would follow from the United States\xe2\x80\x99 withdrawal from\nNAFTA. Please let us know if we can be of any further assistance in this\nor any other regard.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n25\n\n\x0c'