As one of our nation’s pre-eminent experts in bird law,[1] I was excited when my field suddenly became relevant again! As the legal theorist Charlie Kelly, the preeminent Bird Lawyer, states “Bird law in this country, it’s not governed by reason!”[2] You see, thanks to the landmark Supreme Court Case of Missouri v. Holland[3] US Bird law has been the main loophole for the US President to create all sorts of crazy laws. Admittedly it hasn’t been used as such, but it could have been! However, like the Phoenix rising from the ashes, reason may rule US Bird Law once more! And we have Donald Trump and his hate for NAFTA to thank for it.

President Trump has made no secret of his disdain for NAFTA, and his desire to repeal it. To be fair, he hasn’t kept his disdain for anything secret. I’m no NAFTA expert, but I think that the Donald will have a tougher time of getting rid of it than he thinks.

The President of the United States has a bit (some would say, “a bit too much”) of power, most of which relates to law enforcement and foreign relations. The Constitution says that President “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”[4] The Constitution also states that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”[5]

Generally, treaties fall into two categories: self-executing, and non-self-executing treaties. Self-executing treaties automatically become the “supreme law of the land” in the US when they are signed by the President. Non-self-executing treaties need accompanying domestic legislation to become the supreme law of the land. Many treatises (treatii?) have been written on the different kinds of treaties. Though I do like saying “read the treatise on treaties” or “open up your treaty treatise,” the non/self-executing distinction is beyond the scope of this article. I will not discuss the distinction here, other than to say that NAFTA is non-self-executing.

NAFTA was negotiated and signed by President George H.W. Bush (I know what you’re thinking, and no, there is no relation) along with Canadian Prime Minister Brian Mulroney and Mexican President Carlos Salinas in 1992. In 1993 Congress passed the enacting legislation, the ‘North American Free Trade Implementation Act’, and it was signed into law by Former Secretary of State Hillary Clinton’s Husband, William. With that law in place, NAFTA (apparently, a non-self-executing treaty) became “the supreme law of the land.”[6]

Side note: there is much debate about “William Clinton,” the supposed “husband” of Hillary Clinton. Most scholars agree that he was the President of the United States for part of the 1990s. There is, however, evidence that “Crooked Hillary” Clinton invented this story during her own campaign for President in 2016, under the strange belief that it would make her more likable.

Additional side note: I’m not going to lie, before looking up the NAFTA negotiations, I thought that the US President was more or less in charge of Mexico and Canada. I assumed they were like the Virgin Islands, or West Dakota.

Anyway… there is precedent for a President leaving a treaty. The technical term for leaving most treaties is “pulling out” just like you should have done oh those many years ago… George W. Bush (again, no relation) pulled the U.S. out of the Anti-Ballistic Missile treaty with Russia, a treaty that did not have accompanying legislation. The difference lies in the legislation. The ABM treaty didn’t have it. NAFTA allows for parties to bail, saying: “A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties.”[7] But, even with this provision, there is still U.S. federal legislation that will continue to operate in the same manner.

So, yeah, the Don can get out of the treaty. But what of the implementing legislation written by Congress? The President does not have power to change domestic legislation, other than getting Congress to pass a new law replacing it. States in the US generally cannot make laws that interfere with the President’s ability to conduct the US’s foreign policy,[8] but Congress can. Thank goodness for NAFTA’s implementing legislation.

There is, however, a weird loophole that brings us back to Bird Law. The loophole was made by none other than Justice Oliver Wendell Holmes Jr. (no relation) in Missouri v. Holland, a Supreme Court case about the legality of the Migratory Bird Treaty between the US and the UK (who was Canada’s mom at the time), and its accompanying US legislation, the Migratory Bird Treaty Act of 1918. The Court said that even though the previous federal legislation that protected migratory birds was struck down because it was unconstitutional under the 10th Amendment, a Treaty made between two countries along with its accompanying federal legislation that protected the same birds was constitutional.

That was the day that reason left bird law. This case has not been overturned. [cue dramatic music]

Under the Missouri v. Holland exception, Mr Trump could make a new treaty that would usurp the NAFTA legislation. Here lies another question, could a Trump-created Executive Agreement or Congressional-Executive Agreement count as a treaty enough to supplant the NAFTA implementation Act? It doesn’t seem likely. Generally, a Treaty that the Senate gave its advice and consent on would hold more power than an executive agreement, and Legislation does as well. That is a question for another day. But, if Trump gets enough legislators on his side, he could either get the NAFTA legislation repealed, or get a full treaty to replace it. I hope that NAFTA doesn’t just go away, and that if anything happens, it increases Free Trade.

As a Bird Lawyer who likes NAFTA, it’s kind of a win-win. Anxiously awaiting the return of the Age of Reason, I kind of hope that President Trump makes a wonky Treaty or Executive Agreement and that it will be challenged in the courts. Then, our Supreme Court can finally overturn Missouri v. Holland, bird law will be reasonable, and NAFTA will remain in place.

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[1] See…. this Article. (You see any other articles on Bird Law?)

[2] See also, https://www.youtube.com/watch?v=qcderLXiwa8

[3] Missouri v. Holland, 252 U.S. 416, 432 (1920).

[4] US Const. Art. II §2.

[5] US Const. Art. VI.

[6] “Supreme law of the land” is slightly larger than a regular “law of the land” and with cheese on top.

[7] NAFTA Article 2205.

[8] See American Ins. Ass’n v. Garamendi.