OLC Releases Opinions on the President’s Obligations Related to NAFTA and the Open Skies Treaty

Bryce Klehm
Wednesday, December 23, 2020, 12:54 PM

The Justice Department’s Office of Legal Counsel released two opinions concerning foreign relations law.

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The Justice Department’s Office of Legal Counsel (OLC) recently released two separate opinions concerning the president’s authority to withdraw from the North American Free Trade Agreement (NAFTA) and the 120-day advance notice the president was supposed to provide to Congress when withdrawing from the Open Skies Treaty in May.

The opinion detailing the president’s authority to withdraw from NAFTA, authored on Oct. 17, 2018, found that the president “may lawfully withdraw the United States from [NAFTA] without the need for any further legislative action.” OLC notes that when Congress approved NAFTA, it “authorized the President to carry out the agreement and imposed no limits on his authority to withdraw.” You can read the opinion here and below.

The opinion concerning the congressional advance notice restriction for withdrawing from the Open Skies Treaty, written on Sept. 22, found that the notice period is unconstitutional. The memorandum notes that although the president did provide notice to Congress about the withdrawal, he “had directed the notice of withdrawal be sent immediately without waiting for the 120 days called for by section 1234(a)” of the National Defense Authorization Act for fiscal 2020. The opinion states, “section 1234(a) … unconstitutionally interferes with the President’s exclusive authority to execute treaties and to conduct diplomacy.” You can read that opinion here and below.

Bryce Klehm is a first year law student at the University of Pennsylvania Law School. He is a former associate editor at Lawfare.

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