International Trade Law Prof Blog

Did the World Cause Trump?

On Tuesday, President Donald Trump told the United Nations, “I will always put America first.” Trump’s speech evoked sovereignty, but mostly celebrated nationalism and implied protectionism.

Is Trump showing the world America? Or is he holding up a mirror showing the world itself?

Protectionism from 10,000 Feet

Three decades ago, political scientist David A. Lake argued against the popular idea that United States policy on international trade could be understood, as conventionally suggested, by focusing on domestic interest group behavior or party politics.

It’s the Republicans. It’s the Democrats. No, it’s the farmers, the unions. No wait, it’s …

In his book Power, Protection and Free Trade, Lake suggested that trade policy can only be understood in the context of what he called “the international economic structure.” Basically, that means the United States trade strategy is highly dependent on what other nations are doing – which ones have global economic power, which ones are important export markets, and how each acts or reacts in its own trade policy.

According to Lake, domestic interest groups and political parties either don’t vary as much as we think, or their preferences don’t carry much weight until they happen to become consistent with the strategy dictated by the international economic structure. But too often, we miss the international context and devote all our attention to the domestic tug-of-war.

Lake’s book was published in 1988 and he was trying to explain the establishment, and decline, and resurgence of protectionism in U.S. trade policy from 1887-1939.

He wasn’t talking about Donald Trump or United Steelworkers or NAFTA or Brexit or Marine Le Pen or Andrés Manuel López Obrador.

But maybe we should.

Trump As Effect – and Cause – and Effect – of Global Instability

Trump’s rhetoric since the campaign trail has been to “Make America Great Again,” in large part by making America protectionist again.

The media, which didn’t expect Trump to win, seems to offer explanations based mostly on domestic interest group issues (like the stagnation in real wages since 1979) or the platforms of political parties (like the failure of Hillary Clinton and the Democrats to grasp the importance of wage stagnation).

But these explanations don’t quite add up.

First, if real wages have been stagnant since 1979, why did it take 37 years for this to show up in the voting booth? And why in 2016 and not 2012 or 2020?

Second, if the Democrats are to blame, then what about the fact that Republicans in the White house and in Congress have mostly been as strong or stronger supporters of liberal trade policy than Democrats (and reportedly still don’t know quite what to do about this President)?

If the international economic structure is mentioned at all in this discussion, it’s mostly about (1) how the election of Trump is representative of a broadly illiberal movement springing up around the world, or (2) how Trump’s policies may affect the reputation of America abroad.

While these observations hint at the perspective Lake raised, they generally fail to note the causal links in the international economic chain – links that may have led to Trump’s election and may determine the fate of his policies.

Only rarely do pundits consider whether the election of a protectionist like Trump in 2016 – not sooner, not later – could be the likely and predictable outcome of global economic instability, increasing isolationism, and the decline of American hegemony in the international economic order.

What Happened When America Stopped Being “Great”?

Perhaps Trump’s cry to “Make America Great Again” is more useful as diagnosis than prescription.

As long as the United States was the market every other country needed to gain access to, U.S. trade policy could afford to be liberal. Any country that tried to protect its own industries from our exports could be swiftly and effectively punished with trade sanctions that kept their products out of our markets.

But if the U.S. market sags or teeters – as it did in 2008 – and emerging markets like China and India can pick up the slack for any country that shuts out the U.S. and pays a price in access, the effects may start to compound.

In this context, protectionism against U.S. exports might be expected to rise, and U.S. industries might begin to feel a hit that conventional trade sanctions can’t remedy. The hardest-hit industries might begin to demand exceptional sanctions like Section 232 steel tariffs based on national security, or strong-armed renegotiation of NAFTA.

Aftershocks of 2008

These kinds of burn-the-bridges trade policies might become much more attractive under conditions of international economic instability like those that surfaced to widespread public awareness in 2008.

As Lake wrote thirty years ago, most countries – even those that usually seek to deal – will try to insulate themselves from international economic instability through protection. This has ripple effects: “By making future interactions between opportunists less likely or predictable, instability increases the value of present returns relative to future returns, also increasing the attractiveness of protection.”

In other words, why not elect a Donald Trump in 2016 if Britain has already taken its ball and gone home (and China arguably never played by the rules anyway)?

If other important trade partners defect from the game, Trump’s tough trade rhetoric might start to be translated into policy. Also in Lake’s words: “A threat that becomes a certainty stops being a threat.”

Under this view, if Donald Trump hadn’t existed in 2016, perhaps the international economic structure would have created him.

What the Venezuela Sanctions Mean for Baseball

This week, the Chicago Cubs’ Venezuelan catcher Willson Contreras came off the disabled list after suffering a hamstring pull on August 9. While Contreras was rehabbing, the Trump Administration placed additional sanctions on Venezuela as the government of President Nicolás Maduro screeched toward dictatorship.

What do these sanctions mean for MLB – and for MLB hopefuls in Venezuela?

At the beginning of 2017, MLB rosters included a record 77 players of Venezuelan origin, including stars like Miguel Cabrera and Jose Altuve. But most of those players entered professional baseball before conditions in Venezuela significantly deteriorated in the past few years. Now, MLB clubs are pulling out of the Venezuelan scouting market.

While the new sanctions don’t prohibit clubs from continuing to scout and sign Venezuelan players, the deteriorating conditions and escalating political tensions spell dark days for Venezuelan baseball hopefuls. Here’s a look at the evolving sanctions program against the country and what it might mean for baseball prospects in the near term.

Trump’s August 24 Sanctions Order

On August 24, President Trump issued an executive order that prohibits U.S. persons from financing most Venezuelan government debt, transacting in Venezuelan bonds or securities, or distributing profits to the government of Venezuela by any Venezuelan-owned entity. Excepted is the issuance of debt with a maturity of less than 90 days to the state-controlled oil company, Petróleos de Venezuela SA, and debt with a maturity of less than 30 days to any other Venezuelan government entity.

What’s the upshot of this? Economically speaking, not much. Venezuela is already way too big a risk for the private markets. As one Latin America finance expert told The Washington Post, “It won’t have any important impact in terms of financial flows to Venezuela, because there aren’t any to speak of right now.” The only thing it might meaningfully prevent is a refinancing by Venezuela of its debt in a way that buys the Maduro government a little more time.

The executive order still allows for imports and exports, including trade in Venezuelan crude oil – a trade that is important for Gulf Coast oil refineries and crucial to the Venezuelan economy. The White House press secretary has stated that Treasury will issue licenses for financing of imports and exports and certain other types of transactions, calculated to “mitigate harm to the American and Venezuelan people.”

Treasury’s Venezuela-Related Sanctions Program

These (mostly political) sanctions have some history – this isn’t a wholly Trump-created program. The U.S. began to step up sanctions against the Maduro government in late 2014 when Congress passed and President Obama signed the Venezuela Defense of Human Rights and Civil Society Act.

The Act takes notice of the rising human rights abuses, government-sponsored violence and repression, and economic crisis in Venezuela, and authorizes the President to freeze assets, block transactions, and deny visas for anyone responsible.

The presidential power to freeze and block assets under the act is based on the International Emergency Economic Powers Act. This law, passed in 1977, was first used by President Jimmy Carter in 1979 to freeze Iranian assets during the hostage crisis at the U.S. Embassy in Teheran and is currently the basis for sanctions against numerous countries and organized criminal enterprises. The scope of the President’s powers under the IEEPA (broad) was considered by the Supreme Court in the 1981 case Dames & Moore v. Regan.

The Act (maybe) avoids infringing on GATT protections by including an “Exception relating to importation of goods,” which states that “the requirement to block and prohibit all transactions in all property and interests in property … shall not include the authority to impose sanctions on the importation of goods.” Hence, the President doesn’t have the authority (at least not under IEEPA) to block Venezuelan crude oil imports.

Up to last month, the Venezuela sanctions program had mostly been used to block assets of or transactions with individuals in the Venezuelan government. By executive order in 2015, Obama recognized an emergency in Venezuela and invoked IEEPA to block assets of a list of Venezuelan nations. The Specially Designated Nationals list, monitored by Treasury’s Office of Foreign Assets Control, includes 38 Venezuelans since Trump added Maduro and other officials of Maduro’s government to the list in late July.

Law and Baseball in Venezuela

So the new Venezuelan sanctions order protects goods coming into the U.S. It doesn’t explicitly protect foreign direct investment in Venezuela like MLB player development academies, but it doesn’t prohibit those transactions either.

Where MLB clubs could run into trouble is if signing a Venezuelan player requires transacting with someone on the sanctions list, which might happen if, say, top players are represented by agents who have close business ties with sanctioned government officials. But unless OFAC or another federal law enforcement agency gets heavily involved in investigating those ties, MLB clubs can probably continue to sign young Venezuelan talent.

The possibility of further sanctions and even military intervention, however, is not off the table if the Maduro regime continues to ignore international demands such as respecting democratic elections.

In a press briefing about the latest sanctions, National Security Advisor General H.R. McMaster said that the President had asked his cabinet to analyze how the situation might deteriorate and what the range of U.S. and international response to such scenarios might be. General McMaster emphasized that any response would be multi-faceted:

“In terms of military options or others options, there’s no such thing really anymore as only a military option, or a diplomatic option, or an economic option. We try to integrate all elements together.”

Could the U.S. go so far as to prohibit all transactions with Venezuelan entities, as it does in Cuba? The realist answer is that it’s unlikely: the U.S. imports 6 to 9 percent of its crude oil from Venezuela.

The Bottom Line for Venezuelan Baseball

As of now, there’s no real legal impediment to MLB clubs continuing to scout and develop and sign Venezuelan players. The obstacles are mostly related to safety and efficacy, not legality. But those obstacles are enormous. In addition to concerns about the personal safety of scouting personnel, teams are reluctant to spend money on development programs and travel if street violence may prevent scouts from ever making it to the ball field. At some point the risks outweigh the potential competitive edge of finding the next big star.

The growing reluctance of MLB clubs to devote resources to Venezuela has already caused the collapse of most of the infrastructure for developing pro ballplayers in the country. In 2000, 22 MLB clubs had academies for young players in Venezuela. As of this year, only four remain (Tigers, Rays, Cubs, and Phillies). As the teams pulled out, down went the Venezuelan Summer League, which operated from 1997 to 2016.

A few Venezuelan players will still be signed – those who look, from a young age, like star prospects worth moving to the Dominican Republic for development. But players like Contreras, today a rising star in the Cubs lineup who no one considered a top prospect early on, are unlikely to get a shot.

Terminator 5: The NAFTA Implementation Act

Can Trump withdraw from NAFTA? At a rally in Phoenix on August 22, President Trump said, “[w]e’ll probably end up terminating NAFTA at some point.” Can he? More specifically, can Trump dump U.S. trade obligations with a stroke of the pen, or would it require cooperation from Congress?

If Trump’s threat to withdraw from the trade deal is more of a bargaining chip in the NAFTA renegotiations, as his comments last week suggested, questions about the legality of that action are even more immediately relevant. How much should Mexico and Canada worry that Trump will unilaterally exit the talks and the deal?

NAFTA as a Problem in Constitutional Law

Under the agreement, it’s clear that the United States could withdraw from NAFTA just by giving six months’ notice. Article 2205 of NAFTA says, “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.”

For purposes of international law, that should do it. President Trump sends a letter to the Mexican president and Canadian prime minister and as far as they’re concerned, we’re out.

But as a matter of domestic law, it’s not quite that simple. This is where international trade law morphs into a constitutional law problem, or actually two of them.

First, it’s unclear whether the Constitution allows the President to withdraw from congressional-executive agreements like NAFTA without consulting Congress and, perhaps, receiving their approval.

Second, even if he can, it’s not clear whether withdrawal from the agreement would automatically terminate the underlying U.S. trade obligations toward Canada and Mexico. Because trade agreements are generally not self-executing, trade deals have to be implemented into U.S. law by Congress. Congress did that for NAFTA obligations in 1995 when it passed the NAFTA Implementation Act. Even if Trump withdraws from NAFTA, the NAFTA Implementation Act continues in force – unless it expires by its terms or Congress repeals it.

A lot of research will be needed to answer both of these questions. Below are some preliminary observations and relevant legal authorities.

Getting Out of NAFTA Free: Section 109(b)

Let’s take the second question first because it may be the easier (though not easy) one. There’s a good argument that Trump wins here.

The NAFTA Implementation Act has a provision, Section 109(b), that provides for situations in which the Act will cease to have effect. Basically, it’s a Terminator provision inserted by Congress under which the Act self-destructs if certain conditions occur.

The trouble is, the provision is hardly a model of clarity, so both false detonations and dead wires are possible. Section 109(b) says:

(b) Termination of NAFTA Status. – During any period in which a country ceases to be a NAFTA country, [the implementing provisions of the Act] shall cease to have effect with respect to such country.

Okay, but when does a country “cease[] to be a NAFTA country”? Does that only refer to withdrawal by Mexico or Canada, or could it include a case where the United States withdraws? “NAFTA country” is defined as

(A) Canada for such time as the Agreement is in force with respect to, and the United States applies the Agreement to, Canada; and

(B) Mexico for such time as the Agreement is in force with respect to, and the United States applies the Agreement to, Mexico.

Comparing Termination Provisions of Other Implementation Acts

Now, this is not nearly as clear as the termination provisions in a number of U.S. bilateral trade agreements. For example, Section 107 of the United States-Colombia Trade Promotion Agreement Implementation Act says,

(c) Termination of the Agreement. – On the date on which the Agreement terminates, this Act … and the amendments made by this Act … shall cease to have effect.

That one’s pretty clear, but that one’s also easy – as a bilateral agreement, the underlying agreement between the U.S. and Colombia would terminate if either party withdrew. Drafting is understandably more complicated where there are multiple parties to the agreement.

Termination of a Multilateral Trade Agreement: CAFTA-DR

So let’s consider the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (yes, that’s really its name). The underlying agreement, better known as CAFTA or CAFTA-DR, is a trade deal between the U.S., Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua. As with NAFTA, one of the parties could withdraw and the agreement could remain in force.

The CAFTA-DR Implementation Act is more clear about the effects of termination than the NAFTA Implementation Act is. Section 107 of the CAFTA-DR Implementation Act says,

(c) Termination of CAFTA-DR Status. – During any period in which a country ceases to be a CAFTA-DR country, the provisions of this Act (other than this subsection) and the amendments made by this Act shall cease to have effect with respect to that country.

(d) Termination of the Agreement. – 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.

A “CAFTA-DR country” is defined for each country in the following manner:

[T]he term ‘CAFTA-DR country’ means –

(A) Costa Rica, for such time as the Agreement is in force between the United States and Costa Rica; ….”

Well, that makes a lot more sense. Nothing here about the United States  “apply[ing] the agreement to” anybody. As long as the agreement is in force between the U.S. and a particular country, they’re a CAFTA-DR country. If the agreement ceases to be in force between the U.S. and that country, the Implementation Act terminates with respect to that country (and that country only). But if the agreement “ceases to be in force with respect to the United States,” then the Implementation Act terminates completely.

What should we make of the difference between the termination provisions in the NAFTA and CAFTA-DR Implementation Acts?

Making Sense of the NAFTA Termination Provision

Maybe nothing. The CAFTA-DR Implementation Act was passed ten years after the NAFTA Implementation Act. Perhaps Congress had just gotten better at expressing the two conditions in which the Act’s provisions might terminate.

Under the CAFTA-DR Implementation Act, it’s clear that that may occur either where (1) the Agreement ceases to be in force between the U.S. and a particular country; or (2) the Agreement ceases to be in force with respect to the U.S., period.

The first seems to contemplate withdrawal by the particular trade partner (or maybe selective withdrawal by the U.S. as to that partner only, though such a thing isn’t provided for in the Agreement). The second seems to contemplate withdrawal by the U.S. from the Agreement as a whole (or maybe the other parties kicking the U.S. out of the deal, though again, there’s no provision for that).

In contrast, the NAFTA Implementation Act says the act terminates when a country ceases to be a NAFTA country, and it requires that two conditions be met for a country to be considered a “NAFTA country”: both “the Agreement is in force with respect to” that country, and “the United States applies the Agreement to” that country.

Compare that to the CAFTA-DR termination provisions. The first condition, “the Agreement is in force with respect to” Canada or Mexico, seems to contemplate withdrawal by Canada or Mexico. So what could the second condition, “the United States applies the Agreement to” Canada or Mexico, mean?

Scant Clues from Legislative History

The only authoritative sources of legislative history are the House and Senate Reports. Those reports are cursory in their discussion of Section 109(b). The House Report pretty much just repeats the language of the statute: “[The implementing provisions of the act] shall cease to have effect with respect to a country during any period in which that country ceases to be a NAFTA country.”

The Senate Report doesn’t say much more, but it does paraphrase, which might shed a little light on the Senate’s understanding of the provision. The Senate Report says that the implementing provisions of the act “shall cease to have effect with respect to a country during any period in which that country ceases to be a party to the NAFTA.” This seems to contemplate only cases where Canada or Mexico withdrawal, not where the U.S. withdraws.

But in that case, what does the text mean when it says that the act terminates unless the agreement is in force with respect to, and the United States applies the agreement to, Canada or Mexico? According to core principles of statutory interpretation, the second clause must mean something. The Senate Report’s description seems to make it redundant, if the act’s provisions terminates only when the other party pulls out. Isn’t that already covered by the first clause, “for such time as the agreement is in force with respect to” Canada or Mexico?

The debates aren’t authoritative as to statutory interpretation and they’re not that extensive anyway, since NAFTA was passed under the procedures of the Trade Act of 1974, which is designed precisely to curtail congressional debate on our trade agreements. That wouldn’t necessarily have prevented Senators and Representatives from talking about termination, but it doesn’t appear that anyone worried too much about it (though further research will be needed to confirm).

What Could It Mean to Say “the United States Applies the Agreement to” Canada or Mexico?

So how are we to understand this second condition on which the act might terminate? Saying that “the United States applies the Agreement to” Canada or Mexico could mean any of the following:

(1) That Canada or Mexico withdraws from NAFTA (like the Senate Report says);

(2) That the United States refuses to “apply the Agreement” to either Canada or Mexico, but not both; or

(3) That the United States withdraws from NAFTA entirely.

The first case seems to create a redundancy in the statute, which is disfavored in statutory construction. The second case is a plausible reading, but it’s probably still a win for Trump’s stated agenda – it may be a sufficient bargaining chip if he has the power to “rip up” NAFTA and press the Terminator button in the Act only as to Mexico but not as to Canada. The third case allows him to pursue his agenda of tough bargaining backed by the power of complete escape from the U.S. trade obligations set out in NAFTA.

Unless …

All of this assumes that the Constitution gives the President, acting alone, the power to withdraw from an agreement like NAFTA.

And that’s not a foregone conclusion. Even if Section 109(b) can be read to provide that the implementing law terminates upon U.S. withdrawal from NAFTA, that provision does not specify how that withdrawal may or must be accomplished.

It might seem obvious that the President alone holds that power, since the Supreme Court has long recognized the President as holding the power to act for the country in foreign affairs. If NAFTA were a true treaty, entered into as an express power of the President under Article II, section 2 of the Constitution, that would likely be true (although the process for withdrawal from treaties has never been definitively resolved either).

But NAFTA is not a treaty, at least not under U.S. law. (If you’re a lawyer and you didn’t know that, don’t worry, you’re in a big club.) NAFTA was not entered into pursuant to the Treaty Power of Article II, which would have required submission to the Senate for ratification by a two-thirds majority.  

Instead, NAFTA is a strange sort of bird called a congressional-executive agreement. You won’t find it mentioned in the Constitution, and as recently as post-NAFTA passage, litigants were still challenging its constitutional legitimacy. (Speed briefing: the U.S. Court of Appeals for the Eleventh Circuit called the issue a political question and declined to resolve it, and the Supreme Court denied cert.)

Instead, as the name implies, a congressional-executive agreement is an organism arising from a special procedure that devotes some responsibilities to the President and others to Congress (but not a ratification by two-thirds of the Senate).

So we can argue about Section 109(b) of the NAFTA Implementation Act all day and still not address the elephant in the room: If the President doesn’t have the power to get into a congressional-executive agreement by himself, does he have the power to get out by himself? I’ll turn to the elephant in a future post.

But that’s going to be a political question too, you might reasonably object. If a federal court wouldn’t rule on the constitutionality of congressional-executive agreements, how likely are the federal courts to rule on the constitutional procedure for getting out of one? But even if courts won’t hear it (and that’s not a sure thing), a Congress that feels its constitutional powers have been usurped would have other, political remedies available to counter Executive action that oversteps its bounds. A future post will begin to explore the respective powers of the President and Congress in making – and withdrawing from – these Fast Track trade agreements.