Could Congress Extend the USMCA for Another Term?
People have been assuming that the decision on whether the U.S. wishes to extend the USMCA for another term is up to President Trump, but based on the language of the USMCA related to the upcoming joint review, could Congress actually have the power to make this decision on its own?
Recall that USMCA Article 34.7 says:
3. As part of the Commission’s joint review, each Party shall confirm, in writing, through its head of government, if it wishes to extend the term of this Agreement for another 16-year period. If each Party confirms its desire to extend this Agreement, the term of this Agreement shall be automatically extended for another 16 years and the Commission shall conduct a joint review and consider extension of this Agreement term no later than at the end of the next six-year period.
(emphasis added)
The "through its head of government" language is interesting. The drafters could have put the head of government more at the center of the process of confirming. For example, the provision could have said "the head of government of each Party shall confirm in writing if the party wishes to extend the term of this Agreement for another 16-year period." But they used more indirect language instead, with the party confirming "through" its head of government.
"Through," as I think of it based on its use in memos, could mean that the sender is keeping the "through" person informed of developments, or looking for comments from the "through" person, or seeking the "through" person's approval. What if, in the context of the decision on whether to extend the agreement, Congress treated it like the first meaning, and passed a concurrent resolution saying something like "we confirm that the United States wishes to extend the term of the USMCA, and that this decision is to be communicated through the President"? Would that action constitute a U.S. "wish" or "desire," for the purposes of Article 34.7.3, to extend the agreement?
To be clear, I'm not saying that I think such an action is likely at the moment, in particular given the current Republican control of Congress. But note that paragraph 4 includes a similar provision that would apply later in the review process:
4. If, as part of a six-year review, a Party does not confirm its wish to extend the term of this Agreement for another 16-year period, the Commission shall meet to conduct a joint review every year for the remainder of the term of this Agreement. If one or more Parties did not confirm their desire to extend this Agreement for another 16-year term at the conclusion of a given joint review, at any time between the conclusion of that review and expiry of this Agreement, the Parties may automatically extend the term of this Agreement for another 16 years by confirming in writing, through their respective head of government, their wish to extend this Agreement for another 16-year period.
So, just for fun, let's say the USMCA does not get renewed in July, and then in November the Democrats win the midterms and take control of Congress. In January, could a Democratic-controlled Congress pass a resolution of the kind I described above, in an effort to extend the USMCA? It would certainly be an interesting exercise in relation to establishing the balance of Congressional-Executive power over trade policy, as the Trump administration is likely to push back! (Of course, there are plenty of Democrats who want changes to the USMCA, or don't like it in general, so it may not happen after the midterms either.)
As a final point here, let's look at whether the Congressional committee reports on the USMCA Implementation Act help clarify any of this (the Act itself does not include the "through its head of government" language). Here's a passage from the Senate Finance Committee report that discusses the joint review provision:
The Committee notes that stability in North American trade is critical to the health of our economy, and the Committee does not believe that this provision was necessary, particularly because, like all trade agreements, USMCA provides for withdrawal at any time with six months' notice. This provision does not change the constitutional structure of the United States with respect to the conduct of trade policy. Specifically, the Committee notes that Article 34.7.3 provides that each Party shall confirm in writing through its head of government whether it wishes to extend the term of USMCA. The provision thus only dictates how the communication regarding term extension should be made to the other Parties; it does not address how the decision itself is made within a Party. Further, the United States cannot withdraw from a congressionally approved trade agreement without the consent of Congress.
To me, the overall tone here suggests that the Senate believed Congress has an important say in the extension decision. And by distinguishing between the extension decision, on the one hand, and the communication of that decision to the other USMCA parties "through its head of government," on the other, the following sentence could be taken to mean that the Senate did not believe the head of government in the U.S. makes the decision alone: "The provision thus only dictates how the communication regarding term extension should be made to the other Parties; it does not address how the decision itself is made within a Party." Thus, arguably, while the communication comes through the President, nothing in the USMCA (or the implementing act) precludes Congress from making the extension decision. (And as noted above, the use of "through" may even give Congress the flexibility to do the communicating itself.)