Some See Path Forward for NAFTA Without Congressional Approval

Former chief trade counsels from both political parties said the administration is mostly ignoring Congress as it reworks trade deals, and partisanship will largely prevent Congress from acting to reclaim some of its power. Viji Rangaswami, a former chief international trade counsel for Democrats on the House Ways and Means Committee, said she hoped such a standoff could be avoided through consultation before an agreement is reached, but she said the Office of the U.S. Trade Representative could also choose to avoid a vote altogether. While some changes -- such as eliminating the antidumping and countervailing duties chapter -- would require amending NAFTA's implementation bill, other major changes -- such as eliminating the investor-state dispute settlement system, or changing auto rules of origin -- would not.

After the panel discussion April 18 at the Washington International Trade Association where she spoke, Rangaswami said in an interview that she believes USTR still does want to seek a vote, because the administration would like to make changes to textile and apparel rules of origin, where current standards are laid out in law. Also, she said, if the administration avoided a vote, it would make it more likely that the NAFTA rewrite would be abandoned after a change in the White House.

However, the possibility of a vote before the current Congress leaves office is impossible unless leadership waives the Trade Promotion Authority (TPA) requirement to give the public 90 days to examine the deal before a vote, experts said. Georgetown University Law professor Jennifer Hillman, former chief legal counsel at USTR, said in an interview after the panel: "There is a huge difference between an agreement in principle and text. It's ridiculous to say the agreement in principle is enough" to satisfy the disclosure time requirement. House Ways and Means Chairman Kevin Brady, R-Texas, said earlier that he believes the 90-day clock begins when the full text is ready, not when a tentative agreement is announced (see 1804100053).

If there is going to be a vote, "there's a lot of work that's not necessarily visible to the public" after a deal is reached, Rangaswami said. USTR starts developing the implementation bill and statement of administrative action. Then there are very extensive walk-throughs of those products with the Senate Finance and House Ways and Means committees. Those committees ask for items to be added to the proposals, or items to be removed. The USTR decides if those changes are accepted, and then the committees do a mock markup of the implementation bill, and there may be another request for changes by the amendments passed during the trial markup. While Rangaswami said the USTR should view those amendments as a strong signal to change the bill, "it doesn't always work in practice."

But what if the administration sends over a NAFTA rewrite that has elements that Congress strongly objects to and is told to vote for it or President Donald Trump will withdraw from NAFTA? "No free trade agreement has lived up to every negotiation objective" laid out in the TPA, said Brian Pomper, a former chief international trade counsel for Democrats on the Senate Finance Committee. But, he said, he thinks Congress could reject the rewrite, as it did with the Colombia Free Trade Agreement in 2007.

Panelists agreed that a likely consequence of Trump's unorthodox approach to trade agreements is a stricter version of the next Trade Promotion Authority. Pomper said, "I can fairly well guarantee the next version of TPA is going to settle the question of withdrawal pretty quickly." Whether the president or Congress has the authority to withdraw from NAFTA is not clear in the law, the former staffers said.

"We need to be careful not to create rules that are specific to a person," replied Neena Shenai, a former international trade counsel with the Republicans on the House Ways and Means Committee. "Because the shoe could be on the other foot very shortly." She warned that countries that require a legislative vote before starting free trade negotiations "never go into trade agreements."