President Donald Trump has arrived at his new slogan: “Blame Canada.” But not because anything is actually Canada’s fault. Rather, process of elimination has led Trump to favor symbolic sanctions against America’s closest and best ally.
As it turns out, trade is one of the only areas where a president can take significant action unilaterally without violating the Constitution. Trump’s most dramatic executive orders have been struck down by the courts. Congress won’t pass any important legislation. That leaves trade by default — and since it would be too risky to take on trade with China, the best Trump can do is to make headlines by blaming Canada for trade unfairness on such unexciting products as softwood lumber and dairy.
I’ve just come back from Canada, where bemusement with Trump is beginning to turn into annoyance. The disputes over lumber and dairy are longstanding, and on the whole better known to the Canadian public than the U.S. public. So no one is horrified about the substance of Trump’s complaints. And Canadians have no great reason to worry about his apparent foolishness at imposing what is in effect a tax on U.S. homebuilding, via lumber tariffs. (Builders in the U.S. will either use the more-expensive domestic materials or will pay the tariff for Canadian materials. Either way, they’ll presumably pass the higher cost on to consumers.)
Rather, what’s eating Canadians is the president’s apparent belief that he can go after them without serious consequences. There’s an emerging sense that Trump is targeting Canada because he can, or at least thinks he can. There’s also some concern that Trump might actually want to pull out of NAFTA.
Yet the real culprit here is the U.S. Constitution and the limits it imposes on Trump’s capacity to do anything much on his own. The president’s first week saw a spate of executive orders. The two connected to immigration — the “Muslim ban” and penalties for sanctuary cities — have both been struck down by the courts as beyond the president’s authority. One that has remained in place withdrew the U.S. from the Trans-Pacific Partnership. No wonder the president shifted his attention to trade, the arena where his actions seemed to have clear consequences.
Then there are Trump’s legislative efforts. The Affordable Care Act remains in place, because Trump needed Congress to pass it, and Congress — even a Republican Congress — has to satisfy the public. Tax reform is but a dream, at least for the moment. Trump can’t do that on his own either.
Trump did make some headlines by bombing Syria, a unilateral action. It’s questionable whether he exceeded constitutional authority there. The Obama administration claimed it didn’t need congressional authorization to bomb Syria, but then it went to Congress anyway, which said no. The most honest analysis is that the president should seek congressional authorization before engaging in what would clearly count as an act of war in a new theater — but that accepted practice allowed Trump to bomb Syria anyway.
Nevertheless, there’s a practical limit to how many places you can bomb, especially if you’ve run for office on a loosely isolationist platform.
If Trump wants to look like he’s strong, he needs to do it through action on trade.
And here’s he’s lucky. Although the Constitution itself doesn’t give him much inherent power on trade, Congress has conferred extensive authority on the president.
The Trade Act of 1974 says that the president can withdraw from any trade agreement provided he gives six months’ notice. It also lets the president raise tariffs on his own (within generous limits).
The 1974 law was made applicable to NAFTA in 1988. As a result, Trump could unilaterally withdraw from NAFTA, according to almost all legal experts.
China would seem to be the obvious target for trade action like tariffs, given Trump’s campaign rhetoric. But (thank God) he seems to have learned over the last hundred days that China is crucially important not merely as a trade partner but also as a foreign-policy interlocutor. Trump needs China to help with North Korea — but that’s not all, not by a long shot. He needs China to help produce global stability more broadly.
And as Trump learns about linkage, he’s realizing he can’t push China too hard on trade. That leaves . well, Canada. You always hurt the one you love.
Yet it would be a mistake to go after Canada just because the U.S.-Canada relationship is so close and relatively easy to manage. That’s because the relationship goes far beyond trade. Canada and the U.S. are each other’s closest partners because of both political culture and geopolitical necessity.
The two countries share basic values. They share language (mostly, Quebec excepted) and civilization (if you count TV as civilization).
And they share a border that would be much harder to police unilaterally than the border with Mexico. That border is so long and so open that the U.S. must take de facto responsibility for much of Canada’s geostrategic defense, simply as a condition of protecting itself. If Canada were overrun, the U.S. would be too.
Having a strong relationship with Canada thus isn’t a luxury, but a necessity. Trump may be tempted to disrupt it just because he can, but he should be cautious.
Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”