Republican legal thinkers, who during the Bush years did as much as any Obama-worshiping sophomore at Middlebury ever dreamed of to inflate the Cult of the Presidency, have relied on some pretty loosey-goosey argumentation to discover a presidential power to unilaterally abrogate a treaty. The Constitution itself is silent on the question. Michael D. Ramsey of the Federalist Society argues that the Constitution’s investing of the president with “the executive power” of the United States carries within it the power to withdraw from treaties without congressional action. He argues that the executive power — the power to “execute the laws of the United States” — is supplemented by a second and less clearly defined executive power: “From the very beginning of constitutional government,” he writes, “the president has been recognized as the constitutional representative of the U.S. with respect to foreign governments and foreign affairs.”
The obvious problem with this line of thinking is that NAFTA did not become the law of the land on President Bill Clinton’s say-so. It became the law of the land when Congress enacted the North American Free Trade Agreement Implementation Act of 1993. This is not a question of President Trump’s relation with the government of Mexico, but of his relation with the legislative branch of the U.S. government.
To argue that the president has the power to withdraw from a treaty that is signed, ratified, and implemented under law is to argue that the president has the power to nullify federal statute on a whim — his vaguely defined role as commander-in-chief and his vaguely defined foreign-policy powers could be invoked to nullify practically anything. Consider the way federal jurisdiction over “interstate commerce” has been perverted to cover activities that are neither interstate nor commerce, or consider President Trump’s recent argument that he can manage the steel industry from the White House in the name of “national security.” That is not constitutional liberty. That is banana-republic stuff.
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