Trump’s War on the WTO — Part II — The Constitutionality of Withdrawal.

 

My earlier post is at “Trump’s War on the WTO ….”   Here are some additional thoughts:

  • Sidelining the dispute resolution system in the WTO is a sneaky means of killing the WTO’s effectiveness as an international institution. 
  • By vitiating the WTO / DSU might well encourage more unilateral actions against the U.S. since there would be no international mechanism to address trade complaints.
  • If the president withdraws from either NAFTA or the WTO this would most likely generate domestic law suits in the U.S.
  • These agreements (Nafta and the WTO) were authorized by Congress and then effectuated by implementing legislation.
  • Diplomatic agreements have been abrogated by former presidents but not trade agreements.
  •  Terminating the WTO agreement, even though it has a withdrawal provision, raises questions if the president is even permitted to do it internationally.
  • This is because powers to conclude these agreements were delegated to the president in the first place and there is implementing legislation that serves as law of the land. That he can’t do anything about. Indeed, he seems to be required Constitutionally to enforce these provisions.

My sense it that the above raise questions that are not clearly answered by prior case law and makes for really good litigation by the interested parties. Almost guaranteed. We’ll see ………………

 

…. “Weakened NAFTA, WTO Pave  Way for Conflict..” Wall Street Journal (Oct. 19, 2017).

…. “Strategy to Thwart NAFTA Pullout Emerge.” Wall Street Journal (Oct. 21-22, 2017).

…. “Republicans Gear up to Fight Trump Over NAFTA.” Financial Times (Oct. 20, 2017).

 

 

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About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (School of Public Policy).
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