Jump to ContentJump to Main Navigation
The Trump Administration and International Law$

Harold Hongju Koh

Print publication date: 2018

Print ISBN-13: 9780190912185

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780190912185.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 02 April 2020

Resigning Without Leaving

Resigning Without Leaving

Chapter 3 Resigning Without Leaving
The Trump Administration and International Law

Harold Hongju Koh

Oxford University Press

Abstract and Keywords

With respect to international agreements, President Donald Trump’s basic strategy has become resigning without leaving: This chapter illustrates this pattern with respect to the Paris Climate Change Agreement, trade diplomacy, and the Iran Nuclear Deal. In each area, Trump has expressed overt hostility toward the international agreement in question and threatened to abandon it, but in practice, he has generally stayed in the existing international agreements, but underperformed, forcing other transnational players to take up the slack to compensate for his unwillingness fully to execute America’s international obligations. This approach at least has the virtue that in time, a successor administration may correct that underperformance and restore the United States to full participation in the international arrangement.

Keywords:   Paris Climate Agreement, Clean Power Plan, EPA, TPP, NAFTA, WTO, trade wars, Iran Nuclear Deal (JCPOA)

A. Climate Change

Donald Trump’s rhetoric has thus far met a similar fate in the realm of climate change. In a June 2017 Rose Garden ceremony, the administration announced with great fanfare its “intent to withdraw” from the 2015 Paris Agreement on Climate Change, the landmark treaty establishing national reduction targets for greenhouse gas emissions for all member states. The Paris Deal was negotiated under the auspices of the U.N. Framework Convention on Climate Change (UNFCCC), a treaty with 196 state parties to which the Senate gave its advice and consent in 1992.

The evolution of the Paris Deal graphically illustrated the engage–translate–leverage framework applied by the Obama–Clinton approach to international law as smart power. Led by Special Climate Envoy Todd Stern, the Obama administration did not withdraw—as the George W. Bush administration previously had done from the 1997 Kyoto Protocol—but rather engaged repeatedly with countries around the world to frame the global deal. The Obama administration engaged at the annual Conference of Parties meetings in Copenhagen, Cancun, Durban and Paris with the G-20; with the countries of the Major Economies Forum and BASIC (Brazil, South Africa, India, and China), especially China; and in scores of other bilateral meetings with countries large and small. Instead of treating (p.40) climate change as an area without law, the United States translated from norms inchoate in the rigid, legally binding, top-down Kyoto architecture. But the Copenhagen approach declined to specify internationally negotiated emissions targets that applied only to developed countries, instead following a much more informal, politically binding, bottom-up blueprint infused with stronger norms and with greater symmetry between the duties of developed and developing nations. This intense, creative diplomacy allowed the Obama administration to leverage these principles into an innovative architectural design that required a “double trigger” acceptance by at least fifty-five parties of the UNFCCC, accounting for at least 55 percent of greenhouse gas emissions. In short order, those accessions led to the Paris Agreement, which entered into force with more than one hundred fifty parties on November 4, 2016, just four days before the election of Donald Trump.

Trump’s 2017 announcement of his “intent” for the United States to “withdraw” from the Paris Agreement was again driven by a philosophy of “disengage–black hole–hard power.” But his rhetoric launched little meaningful legal action—for the simple reason that his announcement did not legally disengage. International law makes clear that U.S. presidents cannot simply delete prior signatures from treaties. President George W. Bush had earlier demonstrated the futility of announcing a withdrawal under terms not designated by an international agreement when he tried to “unsign” the Rome Statute, which established the International Criminal Court. The “unsigning” letter the Bush administration sent to the United Nations—authored by current National Security Adviser John Bolton—had uncertain effect under customary international law, meaning that the U.S. signature remained on the Rome Statute, with arguably unchanged legal force. This allowed the United States to re-engage with the (p.41) Rome Statute parties when the Obama administration came into office.1 The Paris Agreement recognizes withdrawal only under the terms specified in the Agreement’s text, which plainly declare that a party cannot give notice of withdrawal to the U.N. Secretary General until “three years from the date on which this Agreement has entered into force.”2 Since the Paris Agreement entered into force on November 4, 2016, the earliest date that the United States could even give such legal notice would be November 4, 2019. That notification would then take another full year to take legal effect, meaning that Trump cannot legally withdraw the U.S. from the Agreement until November 4, 2020, the day after the next U.S. presidential election.

Until then, Trump’s withdrawal announcement has no more legal meaning than one of his tweets. To be clear, the United States has not “virtually” or “preemptively withdrawn” or otherwise formally disengaged in any way as a party from the Paris Agreement. At this writing, the U.N. Treaty Depositary page on the Paris Agreement still lists the United States as a party.3 While the State Department website indicates that it has notified the U.N. Depositary of its “intent to withdraw,” a “media note” makes clear that the United States has done nothing more than communicate “the U.S. intent to withdraw from the Paris Agreement as soon as it is eligible to do so, consistent with the terms of the Agreement.”4 Far from having left, in the words of the coalition of Paris supporters, “We Are Still In.”5 Trump has resigned but has not left. But America’s commitment to fighting climate change—unlike Trump’s—is not so easily reversed. Under similar circumstances, the United States was in arrears of its United Nations dues for many years, but never quit its membership and eventually came back into compliance: a pattern that could equally be followed here.

(p.42) As a legal matter, Trump’s “withdrawal” announcement has no more legal force than an employee’s empty threat to leave his job in three years’ time. Trump initially claimed that he plans to “renegotiate” better terms, but the other 190 state parties have no incentive to renegotiate a weaker agreement with a flailing American administration that may already be voted out of office when the time comes to complete its withdrawal. In August 2017, Ambassador Haley informed the U.N. Secretary-General of the United States’ intent “to exercise its right to withdraw from the Agreement [u]nless the United States identifies suitable terms for reengagement,” whatever those words might mean.6 In its August 2017 statement, the State Department further announced that the United States would continue to participate in the annual UNFCCC Conference of Party (COP) meetings, where, as a prospectively exiting party, the U.S. delegation’s influence is now greatly diminished. If the United States continues to participate in the Paris process and remains a state party for the balance of Trump’s first term, it has not meaningfully withdrawn; it has only reduced its own influence by identifying itself as a voluntary lame duck. So while President Trump proclaimed that his withdrawal announcement represented a reassertion of America’s sovereignty, in reality, he has unilaterally surrendered influence over the agreement to China and the other BASIC countries, which have recently reaffirmed their Paris commitments and will continue to push the United States to keep its own.7

While Trump has committed an egregious self-inflicted wound by preemptively announcing his intent to withdraw from the Paris Agreement, for the next two years, there is little reason to treat his withdrawal announcement as either definitive or final. Since the announcement, the administration has sent confusing messages to U.S. allies as to whether it will actually follow through when the time comes.8

(p.43) Meanwhile, bureaucratic stickiness and external litigation have slowed the domestic dismantling of America’s Paris commitments. Many elements of the original Paris Agreement compliance plan have already been internalized into the federal administrative agenda by Obama’s Quadrennial Energy Review and are not so easily ousted.9 The Trump administration’s March 2017 Climate Executive Order calls for reversing course on the Clean Power Plan (CPP), an agency rule that implements the U.S.’s Paris commitments through interstate cap-and-trade and by states building fewer coal-burning plants while creating greater capacity for renewable energy. The Environmental Protection Agency’s (EPA) authority to implement the CPP was stayed 5–4 by the Supreme Court in 2016 (with the late Justice Scalia in the majority).10 At this writing, the D.C. Circuit en banc is still deciding whether the EPA has the authority to implement the CPP.11 Meanwhile, the court has pointedly reminded the government that the EPA has an “affirmative statutory obligation to regulate greenhouse gases.”12

The EPA has issued a proposal to undo the CPP and consider a weaker replacement in line with the agency’s revised reading of the Clean Air Act.13 But because the EPA is still reviewing comments to its proposed reinterpretation of the Act,14 all options remain on the table—including ultimately keeping the CPP in place. An overt effort by the Trump administration to discard the plan would undoubtedly trigger new fights about notice-and-comment rulemaking before the D.C. Circuit, which will rule on the legality of any new proposed agency action. In such litigation, environmental groups could well claim that the president has failed faithfully to execute continuing U.S. international legal obligations under the Paris Accords. In such a suit, any appeals to special “Chevron deference” to agency action by (p.44) the courts would be compromised by the fact that the very same agency, under different presidents, has now offered competing interpretations of the exact same Clean Air Act provisions.

Domestic litigation has also pushed back against the Trump administration’s other attempted rulemaking changes. When Trump’s EPA proposed relaxing the Obama administration’s fuel economy standards, seventeen states and the District of Columbia quickly sued to block the rollback.15 Regardless of the outcome of this lawsuit, Obama’s standards are locked in until 2021, at which point a new president may be in office.16 States and localities have filed numerous actions against major fossil-fuel companies for public nuisance, seeking oil company document disclosure, and trust funds to pay for the damages caused by sea-level rise. Our Children’s Trust—which represents children who will be affected by climate change—has filed a series of suits against the federal and some state governments claiming that their substandard stewardship of the atmosphere has violated the public trust.17

Meanwhile, empowered by a special EPA waiver of the Clean Air Act’s preemption of state motor vehicle emission standards, California has announced that it intends to retain the more-stringent Obama-era standards.18 Because other states are free to do the same, the EPA may need to compromise on a new national standard, or else automakers will still need to satisfy the Obama-era targets in the thirteen California-standard jurisdictions, which account for more than a third of the automobile market.19 Former EPA Administrator Scott Pruitt had stated that he was not considering revoking California’s waiver “at present,” but media reports indicate that the agency’s fuel economy proposal will conclude that the waiver allows California to regulate emissions but not in ways that also relate to fuel economy.20 This understanding of the waiver would effectively eliminate California’s power to independently regulate tailpipe carbon emissions; (p.45) however, two federal courts have previously rejected this narrow interpretation.21 Should the EPA revoke or “reinterpret” California’s Clean Air Act waiver, the state will surely sue.

Substantial domestic resistance has also arisen against the Trump administration’s efforts to deregulate non-carbon greenhouse gases. When Trump’s EPA tried to stay enforcement of the Obama administration’s already-final methane standards for new and modified oil and gas sites, claiming that its decision to do so was immune from judicial review, the court found that action to be “arbitrary and capricious” and an ineffective revocation that exceeded the agency’s authority under the Clean Air Act.22 The court went on to rule that the EPA would have to initiate full rulemaking procedures to stay or undo the regulation and until then was required to enforce the Methane Rule.23 Litigation also continues in defense of the EPA’s authority to regulate hydrofluorocarbons, with a new agreement to control these compounds recently concluded in Kigali, Rwanda.24 In short, the domestic internalization of international climate norms remains sticky, and not so easily altered by Trump’s EPA.

If, in November 2019, the administration should unilaterally give notice of its intent to withdraw from the Paris Agreement, new litigation will almost certainly ensue to invalidate that notice, arguing that the president lacks constitutional power to withdraw from the Agreement without congressional participation. The judicial precedent most on point remains the Supreme Court’s summary disposition nearly four decades ago in Goldwater v. Carter.25Goldwater dismissed without oral argument a group of senators’ challenge to the president’s unilateral decision to terminate a bilateral mutual defense treaty with Taiwan in accordance with its terms as part of the recognition of the government in Beijing. But on closer examination, Goldwater is a very thin reed on which to rest a broad pronouncement of unilateral presidential power to terminate (p.46) multilateral treaties that have international legal force. There was no majority opinion in Goldwater. The justices splintered around a number of rationales, and only one justice reached the merits. Two justices voted that the case should be argued, not decided summarily; another justice asserted that the case was not ripe because the political branches had not yet reached “constitutional impasse”; four justices found that it was a political question. Only one justice voted on the merits to uphold the president’s treaty termination power, based on the peculiar fact that that case—unlike climate change—involved recognition of foreign governments, an issue over which the president plainly exercises textual plenary constitutional power.26

In the years since Goldwater v. Carter, several lower courts have followed its lead by finding nonjusticiable suits questioning executive power to unilaterally withdraw from treaties.27 But in an important recent decision, Zivotofsky ex rel. Zivotofsky v. Clinton, the Supreme Court declined a similar political question challenge to an assertion of the president’s recognition power in the face of a contrary congressional statute, calling the political question doctrine a “narrow” exception to the general rule that the judiciary has the “responsibility to decide cases properly before it.” Chief Justice Roberts’s opinion for the Court reduced the political question test to its two “textual” elements, ruling that a political question exists only “[1] where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it.’ ”28

Under Zivotofsky’s narrowed political question test, treaty termination is not a decision “textually committed” by the Constitution to a branch other than the judiciary. Article II of the Constitution authorizes the president to “make” treaties with advice and consent of the Senate, but no constitutional text expressly (p.47) gives authority to any branch to unmake such treaties. Nor is there a “lack of judicially discoverable and manageable standards for resolving” the question. The Court need only decide whether the president’s solitary action is legally sufficient to terminate an international treaty obligation, which is the law of the land. If the Court can decide on the merits in such landmark separation of powers cases as Marbury v. Madison, The Steel Seizure Case, Myers v. United States, INS v. Chadha, Morrison v. Olson, and Zivotofsky itself,29 why can’t it decide on the merits whether the president’s unitary withdrawal from a multilateral treaty is constitutionally sufficient to bind other branches—and the world? That would certainly be a political case, but would not make the contested legal issue a political question. As Chief Justice Roberts noted in Zivotofsky, enforcing the separation of powers “is what courts do.” In Zivotofsky, the question was whether a statute enacted by Congress unconstitutionally encroached on the president’s foreign affairs powers. The parallel question here would be whether the president’s attempted unilateral termination unconstitutionally encroached on Congress’s foreign affairs powers. To decide this question, a court need only apply traditional judicially manageable tools of constitutional interpretation—examining text, structure, and historical evidence about the nature of the law and constitutional powers at issue.

Much of the debate in Goldwater concerned justiciability. The justices asked whether Congress as a whole had challenged the president’s action, and if not, whether the plaintiffs had standing to bring the action, and whether the case was genuinely ripe for decision, absent what Justice Powell deemed a true “constitutional impasse.” While debate continues over what degree of congressional opposition it would take to confer congressional standing, there seems little doubt that after the Court’s decision in Massachusetts v. EPA,30 states and localities suffering from diminished coastlines (p.48) due to rising sea levels would have standing to challenge a national climate change policy decision that encourages a rise by accelerating the melting of the polar icecaps. Such a rise would constitute injury in fact and would be redressable through EPA action for purposes of the Supreme Court’s current environmental standing test stated in Lujan v. Defenders of Wildlife.31

Some commentators have made much of the fact that the president has unilaterally terminated a number of international agreements since the 1930s, and a few dozen since Goldwater.32 But just because Congress acquiesced in the president’s termination of a number of agreements that Congress did not care about tells us little about what would happen if Congress were actively to contest such a withdrawal. Given that there are currently no statutory provisions that require the president to notify Congress of a treaty termination or withdrawal, it would be odd to treat activity of which Congress may not even have been aware as accepted customary constitutional practice. By way of comparison, in INS v. Chadha, the Court famously invalidated the legislative veto, even though 295 legislative vetoes had been inserted into nearly 200 statutes in the preceding half-century.33

Obviously, the United States is not the only country in which this issue has arisen. The British Supreme Court in the Brexit litigation recently held that the U.K. government may not use its executive prerogative powers to trigger Article 50, the withdrawal provision of the Treaty of the European Union, but instead must seek parliamentary approval if fundamental rights are affected.34 The Court held that prior parliamentary approval of the United Kingdom’s withdrawal from the European Union was needed because Brexit would require fundamental constitutional changes, including repealing the 1972 EU Act, which expressly allowed for E.U. treaties to take effect within U.K. domestic law, a law (p.49) that the executive would not have the power to effect unilaterally. If the United States were to seek to withdraw from the Paris regime—not to mention another international organization like the United Nations or the World Trade Organization, whose rules are strongly internalized into U.S. law—termination would similarly necessitate unwinding many domestic statutes that the president could not terminate alone.

Similarly, the High Court of South Africa recently held that the executive branch could not unilaterally withdraw from the Rome Statute of the International Criminal Court without parliamentary approval.35 In response, the South African government complied with the court’s order and revoked the instrument of withdrawal. As has been widely discussed, some U.S. Supreme Court justices—particularly Justices Breyer, Ginsburg, and Kennedy—have been influenced by constitutional practice in other democratic countries. Indeed, Justice Breyer has recently written a book arguing in favor of this practice.36 If the constitutional issue raised by Goldwater were relitigated in the context of withdrawal from the Paris Climate Agreement, we could expect the reasoning of these and other comparative law precedents to be urged upon the U.S. Supreme Court.

The real question is whether American courts would really stand mutely by if Donald Trump, by tweet, sought unilaterally to withdraw the United States not just from the Paris Agreement but from the United Nations, the International Monetary Fund, the World Bank, the World Trade Organization, and NATO. If the president, acting alone, could unilaterally disengage from most of our international commitments, that practice could potentially transform the entire post-World War II world order. While the treaty termination issue arises most vividly in the context of the Paris Climate Agreement, at a time when we have a president and national security adviser (p.50) avowedly hostile to international agreements, the implications of this constitutional issue obviously extend as well to international organizations (e.g., the U.N. Charter), international tribunals (e.g., the International Court of Justice, where the United States is currently defending an action brought by Iran), mutual security organizations (e.g., NATO, which Trump has repeatedly and severely criticized), and trade agreements (multilateral, such as the WTO, where China has now sued the United States; regional, e.g., NAFTA; and bilateral, e.g., the Korea-U.S. Free Trade Agreement). Standing alone, the summary disposition in Goldwater is simply too thin a precedent, and too off-point and under-reasoned, to treat as settled law governing all of these situations.

If, in November 2019, the administration actually chooses unilaterally to give notice of its intent to withdraw from Paris, the real legal battle will finally begin. New litigation brought by states and “Big Green” groups would almost certainly ensue, arguing that the president lacks constitutional power to withdraw from the Paris Agreement without congressional participation. For the reasons suggested above, the outcome of such a lawsuit would not be a foregone conclusion. And even if a domestic litigation challenge to withdrawal ultimately proved unsuccessful, the litigation could still last more than a year, potentially pushing the national decision of whether to complete the withdrawal past Trump’s presidency.

If and when the Court finally decides this issue on the merits, it may well conclude that there should not be a single “transsubstantive” rule governing termination of international agreements. The Court could well conclude that the degree of congressional participation should depend on the subject matter of the agreement at issue. Some commentators have argued that President Trump’s threat to terminate or withdraw from NAFTA would be barred by Congress’s authority to regulate foreign (p.51) commerce under the Commerce Clause, an argument that equally extends to withdrawing from a climate change agreement with sweeping implications for domestic and foreign commerce.37

Meanwhile, since Trump’s Paris announcement, those resisting Trump’s initiatives have gone beyond rope-a-dope to affirmative, alternative climate action. Many U.S. climate stakeholders other than the federal government—such as states and localities and private clean energy entrepreneurs—have intensified their efforts toward meeting the Paris targets. These alternative stakeholders will almost surely generate an alternative plan of litigation and emissions reduction designed to keep U.S. emissions within striking distance of the promised U.S. Nationally Determined Contribution.

Widespread support for climate change solutions continues to grow among other transnational actors as well. Through the “Under2 MOU” (Under 2 Degrees Celsius Memorandum of Understanding) coalition, states, provinces, regions, and cities around the world have pledged the common goal of reducing greenhouse gas emissions to 80–95 percent below 1990 levels by 2050.38 Already the governors of California, New York, and Washington have formed the United States Climate Alliance, a coalition that will bring together U.S. states to uphold the Paris Agreement and take further climate action.39 Similarly, through the Compact of Mayors, six hundred global cities have pledged to reduce greenhouse gas emissions by nearly one billion tons annually by 2030. California alone could bring us five percent of the way to our global pledge, which is to cut our emissions by 26–28 percent below 2005 levels by 2025.40 And emissions trading among subnational entities to distribute emissions reductions could begin, consistent with the domestic mitigation and internationally transferred mitigation outcomes provisions of Paris Articles 4.2 and 6.41

(p.52) Although President Trump claims the Paris Agreement would provide other countries with an economic edge over the United States, business leaders now believe instead that future economic prosperity is best advanced by remaining in and supporting the Paris Agreement. Coal jobs will continue to be scarce. Default patterns have shifted toward clean energy and cannot be undone overnight. New power plants are much more likely to use cheap gas or renewables. The Breakthrough Energy Coalition, pioneered by Bill Gates, will invest $1 billion in companies that provide affordable clean energy.42 Through the “We Mean Business” Coalition, 471 companies with over $8 trillion in market capitalization have undertaken more than 1,000 climate action commitments.43 For this same reason, hundreds of major companies and investors—including DuPont, eBay, Nike, Unilever, Levi Strauss & Co., Hilton, Adobe, Apple, Facebook, Google, and Hewlett Packard—have publicly urged President Trump to remain in the Paris Agreement, joined even by some oil and gas companies, such as Shell and Exxon Mobil.44

Thus, while the Trump administration waffles, the global community can just keep doing what it is doing. It can disregard as legally meaningless the Trump administration’s prospective “withdrawal” from the Paris Agreement and instead look to these subnational actors’ and business leaders’ efforts to meet the U.S.’s pledged greenhouse gas emissions reductions.45 Even if the United States should fall into arrears on emissions reductions or Green Climate Fund contributions, as it has done in the past with respect to its U.N. dues, these other domestic and international stakeholders can exert pressure to force this administration and the next to make up the difference.

Simply put, the rope-a-dope seems to be working. Trump’s claimed withdrawal from the Paris Agreement marked just the beginning of the transnational legal process story. The (p.53) outside strategy of “interaction–interpretation–internalization” is playing out even as we watch. Inside the government, the Trump plan to undo Paris is encountering bureaucratic obstacles. While the “disengage–black hole–hard power” faction won the day in June 2017, since then, within the Trump administration, the “engage–translate–leverage” approach has made a comeback.

Ironically, Trump’s effort to withdraw has been stymied not just by career bureaucrats but also by his own political appointees—such as Energy Secretary Rick Perry and now-departed Secretary of State Tillerson, National Security Adviser H.R. McMaster, and economic adviser Gary Cohn. All of these officials favored “engaging” (i.e., keeping a seat at the table) and “translating” (i.e., reading ambiguities in the treaty to permit lower U.S. environmental performance) over overt withdrawal, which they correctly saw as losing leverage within the ongoing COP process. Even as a lame duck, the United States has continued to attend ongoing international meetings in an apparent effort to try to get better conditions at the margins of the Paris Agreement. Thus, even if in the end the administration tries to withdraw in accordance with the Agreement’s terms, it will not be breaking international law, but rather treating the Paris Agreement as bona fide international law that the United States has already internalized to a surprising degree.

The lesson, in short, is that the Trump administration does not own our climate policy. We all do. The Paris Agreement was a bold global bet that developed and developing nations would all cooperate to reduce greenhouse gas emissions through incentives to develop clean energy. The environmental community and the many transnational actors committed to cleaner energy are far bigger than Donald Trump. His administration remains visibly divided on this issue, and he has personally demonstrated little meaningful commitment or capacity to follow through on any of (p.54) his public statements. If the federal government does not live up to its Paris commitments, many other players can and are stepping up to fill the gap. As Trump’s policies and credibility fray on many fronts, his so-called Paris “withdrawal” may be just another one of them. Only time will tell whether, with concerted effort and aggressive innovation—in Humphrey Bogart’s words—“we’ll always have Paris.”46

B. Trade Diplomacy

A parallel story could be told about President Trump’s calamitous trade diplomacy, which has disrupted alliances, potentially sparked trade wars, stalled freer trade, and left the United States on the sidelines of major trade liberalization initiatives. In a telling 2017 speech, German Foreign Minister Sigmar Gabriel asserted that “[t]he international law codified in the Charter of the United Nations . . . is in crisis” in no small part because Trump “perceives Europe in a very distanced way, regarding previous partners as competitors and . . . even as . . . economic opponents.”47

Upon entering office, Trump acted on that perception to instigate three unilateral moves. First, he announced the United States’ withdrawal from the Trans-Pacific Partnership (TPP), a multilateral trade pact with eleven Pacific nations, of which the Obama administration had been a major architect. After Trump’s exit, many assumed that the TPP would collapse without U.S. participation, but the other parties—principally Australia, Canada, Chile, and Japan—continued the partnership anyway. They renegotiated parts of the TPP to remove some of Washington’s demands and in March 2018 signed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP, or TPP-1). Under this new agreement, Canadian and Australian (p.55) ranchers will now be able to sell beef more cheaply in Japan because of new tariff reductions that American ranchers will not enjoy. Meanwhile, smaller trading countries such as Malaysia and Vietnam—which had aspired to preferential access to the U.S. trade market—have accepted instead improved market access to the other large CPTPP economies.

When it had become irrevocably clear that the CPTPP was going forward without the United States, Trump inquired as to whether America could rejoin the same pact he had prematurely abandoned. After being publicly mocked for his “off-again, on-again” position, Trump announced that the United States would not be part of the CPTPP, at least for now. Yet here, too, the international law rules that Trump had dismissed now limited his freedom. Embedded in the revised agreement are provisions that both prevent the United States from formally starting negotiations to join until 2019 and give each current member a de facto veto, as all 11 other partners must agree whether to admit a new member to the club. Anticipating the possibility of an eventual American return, the 11 member countries never deleted—only “suspended”—about 20 key provisions originally advocated by the United States—most notably, stronger intellectual property protections. But the United States still would not likely embrace the deal without reopening negotiations on such sensitive issues for existing members as truck tariffs, auto-part sourcing, and agricultural products such as rice, which are mainly produced in the U.S. states that voted for Trump in 2016. Right now, existing CPTPP members seem to have little appetite for complex renegotiations, and are well positioned to extract concessions from Trump as the price of America’s attempt at belated reentry.

Second, Trump initially announced that he would withdraw from the North American Free Trade Agreement (NAFTA) with Canada and Mexico and the Republic of Korea–U.S. Free Trade (p.56) Agreement (KORUS). But after facing intense opposition from his own Departments of Agriculture and Commerce, which feared the impact on their domestic constituencies, Trump shifted to a hasty plan to “renegotiate” the agreements without advance buy-in from the other partners. As with the Paris Agreement, the other parties to NAFTA had little incentive to renegotiate a less-favorable agreement with a flailing American administration. Both Canada and Mexico have thus far largely rebuffed Trump’s aggressive demands to update the NAFTA on such thorny issues as automotive content, dairy, dispute resolution, government procurement, and a sunset clause, putting off until 2018 a renegotiation that Trump’s White House had originally announced would be completed by 2017. Trump’s political imperatives have now placed his negotiators in an electoral bind, as only by trading speed for substance can they produce a quickly renegotiated agreement in principle in enough time for Trump to take credit for it in the 2018 elections.48

By June 2018, Trump was hinting that he no longer intended to withdraw from NAFTA, but instead planned to deal separately with Canada and Mexico to restructure the agreement, even though NAFTA’s provisions plainly require all three countries’ concurrence for any revisions. During a few dizzying days at the 2018 Quebec G-7 summit, Trump refused to endorse a joint statement with his closest trade allies, charged their trade policies with threatening U.S. national security, and questioned why Russia was still being excluded from the G-7, before making the baffling claim—after himself imposing aggressive tariffs—that he could support a G-7 partnership that had no tariffs, barriers, or subsidies. As Congress began preparing bipartisan legislation to reassert its authority over trade policy, Trump insulted Canadian Prime Minister Justin Trudeau as “weak” and “dishonest” before flying off to Singapore to praise North Korean dictator Kim Jong-un as a “very talented man” with a “great (p.57) personality.” In Singapore, Trump left the North Korean media with the impression that he favored sanctions relief, despite Congress having passed sweeping legislation stiffening North Korean sanctions only the prior year.49

With South Korea, Trump’s room to maneuver proved even more limited, because he underestimated the deeply interconnected nature of U.S. trade and national security policy. His need for Pacific allies to help contain North Korean nuclear adventurism forced him to reverse his early courtship of Taiwan and his initial threats to sharply reduce Chinese imports.50 Flip-flopping on his early condemnation of China as a “currency manipulator,” Trump went to Beijing to give China “great credit” for “being able to take advantage of another country for the benefit of their citizens.”51 And in early negotiating rounds, the Koreans met Trump’s threats to annul or renegotiate the KORUS by boldly suggesting that if it came to that, South Korea was ready to annul first.52 By late March 2018, a bilateral agreement in principle was finally reached after a hasty negotiation that—despite Trump’s rhetoric—ended up producing only modest changes.53

As his third unilateral move after entering office, Trump launched a series of punitive measures against other nations’ purportedly unfair trade practices.54 He followed by announcing startlingly aggressive tariffs on steel and aluminum imports—supposedly, like the Travel Ban, issued in the name of national security. Blurring the traditionally separate national security and trade policy streams, Trump invoked national security to call for auto tariffs on Mexico, Canada, Japan, and Germany, presumably to gain greater leverage for NAFTA renegotiations. But he undermined his own credibility almost immediately, by granting a series of retreats, exemptions, and short-term waivers (with respect to the metal tariffs) after the various affected trading partners pushed back.55 At the same time, he overlooked a genuine national security threat and triggered (p.58) bipartisan congressional resistance by calling for leniency for ZTE, a Chinese telecommunications company that had pleaded guilty to and paid billions in penalties for violating U.S. sanctions on Iran and North Korea.

Ironically, the short-term impact of these various measures has been to expand, not shrink, the U.S. trade deficit in goods. The three biggest categories of imports that the Commerce Department sought to punish in 2017—Chinese steel and Canadian aircraft and lumber—all notably backfired. Trump’s threat to curb steel imports triggered a 20-percent surge in the same through the first nine months of 2017 relative to the same period one year earlier.56 The Commerce Department’s decision to impose lumber duties of as much as 24 percent in response to what it deemed unfair Canadian provincial subsidies floundered when hurricanes devastated the American South, creating unexpected demand for building materials and pushing lumber prices up, not down.57 When Trump backed Boeing’s claim that it had been harmed by Canadian subsidies on Bombardier’s C Series jet, the independent, bipartisan U.S. International Trade Commission—composed of George W. Bush and Obama appointees—voted unanimously against that claim, effectively invalidating the nearly 300 percent tariff that Trump’s Commerce Department had wanted to impose.

The area of trade diplomacy again shows how deeply the United States has become enmeshed in multilateral trade regimes and the myriad ways in which other participants in those regimes can exercise reciprocal power, through both international law and politics. Exiting these regimes is neither immediate nor easy, and will be sharply contested by other transnational players. False factual charges are quickly countered, and unilateral actions not based on sound evidence receive swift rebuttal. While Trump has consistently sought to scapegoat NAFTA for bleeding American jobs, for example, his (p.59) own cabinet has resisted, particularly because economists have extensively chronicled the extent to which Trump has overstated NAFTA’s cost in terms of lost American jobs.58

Similarly, Trump baldly asserted that the “World Trade Organization [WTO] . . . [has] taken advantage of this country like you wouldn’t believe. . . . [A]s an example, we lose . . . almost all of the lawsuits in the WTO. . . .” Yet almost immediately, multiple commentators stepped forward to respond that in fact, the United States has prevailed before WTO dispute-settlement panels on more than 90 percent of the adjudicated issues.59 Trump imposed his unilateral steel and aluminum tariffs without invoking the consultation-and-grievance procedures required by the WTO’s dispute settlement rules. By so doing, Trump offended the very allies whom the United States needs to help with the China trade problem. In April 2018, China filed a complaint at the World Trade Organization over the U.S.’s decision to impose tariffs on some $50 billion of Chinese goods. And even while Trump has continued asserting that the WTO has been a disaster for the United States, far from boycotting that organization, the United States has filed its own new case at the WTO to try to halt Beijing’s policy regarding China’s protection of intellectual property rights.60

Thus, despite Trump’s simplistic tweet—“Trade wars are good and easy to win”61—the global response to his various unilateral actions has proven the opposite. Increasingly, internationally traded products comprise components assembled in multiple countries, which renders the very notion of a bilateral “trade deficit” hard to measure. Trade liberalization is now less a policy choice than an essential means to secure manufacturing efficiency for the growing number of companies who manufacture locally but source globally. Ironically, by invoking national security interests as justification for imposing blanket tariffs on steel and aluminum, Trump is only inviting both a WTO panel defeat and specious invocations of the (p.60) same national security argument by Russia, China, and others to defend their own dubious trade practices.

As in other areas, the Trump administration has offered mainly empty threats to resign from, without really leaving, key trade agreements. That tactic has simply created more “lose–lose” situations, stalling preexisting deals and alienating existing trade partners without creating new ones. In nearly every available venue for trade liberalization, the United States has gone from leader to bystander, losing in the process past allies, future leverage, and immediate benefits from freer trade. Of the 35 trade pacts currently under consideration worldwide, the United States is a party to just one. An economist for George W. Bush’s White House recently observed that Trump mistakenly thinks that “if the U.S. said stop, this [global trade] process would come to a halt”; but in fact, “[t]he world just moves on without us.”62 Former trading partners have now gone beyond simply bemoaning the loss of United States leadership to banding together against Trump as a common foe. In Latin America, for example, Trump seems ironically to have done more than any economic factor to spur commercial integration in opposition to his initiatives.

With respect to those trade agreements where the United States has not excluded itself from participation, yet cannot muster the leverage for meaningful renegotiation, its likely default will now be to stay in and underperform. While that outcome may be curable down the road by a successor administration, the wear of playing “rope-a-dope” against Trump’s trade impulses is becoming more and more apparent. Improvised American unilateralism in the face of embedded trade multilateralism greatly damages the United States’ reputation as a reliable treaty partner and diminishes its long-term capacity to exercise leadership (p.61) within those treaty arrangements in times of genuine global economic crisis.

C. The Iran Nuclear Deal

Much the same story could be told about the Iran Nuclear Deal, which candidate Trump threatened to “rip up” and President Trump repeatedly called “the worst deal in history.”63 The July 14, 2015 Joint Comprehensive Plan of Action (JCPOA) envisioned actions by Iran, the International Atomic Energy Agency (IAEA), and the allies known as the P5+1 (the five permanent U.N. members—the United States, the United Kingdom, France, China, and Russia—plus Germany, with a European Union representative speaking for the three European countries).64 After extended negotiation, Iran agreed to specified limits on its nuclear development program in exchange for the P5+1’s joint relaxation of domestic and international sanctions that had been imposed through the United Nations.

Once again, the Iran Nuclear Deal illustrated the Obama–Clinton “engage–translate–leverage” “smart-power” framework in action. The Obama administration engaged with Iran, the P5+1, the United Nations, and the IAEA. It translated Iran’s desire to maintain a civil nuclear program into a deal that verifiably cut off Iran’s pathways to a nuclear weapon. That deal allowed Iran to engage in certain peaceful nuclear activities, all without endorsing a legal right to enrich, gaining in exchange unprecedented monitoring access for the IAEA. The Obama team then leveraged that core bargain first by strengthening sanctions in June 2010,65 followed by gradually lifting national and multilateral sanctions and increasing international inspection to achieve an outcome (p.62) that probably could not have been attained through military force. The JCPOA verifiably reduced Iran’s stockpiles of enriched uranium by 98 percent, forcing shipment of twenty-five thousand pounds out of the country. The Plan increased the “breakout” time that it would take for Iran to acquire a bomb from two to three months to at least one year, reduced the number of Iran’s installed centrifuges by two-thirds, prevented Iran from producing weapons-grade plutonium, and verified the country’s compliance with robust IAEA monitoring and inspection.

On May 8, 2018, shortly after John Bolton became national security adviser, Trump announced that the United States would withdraw from the Deal, “instituting the highest level of economic sanction” on Iran and on “[a]ny nation that helps Iran in its quest for nuclear weapons.”66 But as with other accords, now that Trump has resigned, the question remains: “Will he really leave?” At this writing, the JCPOA remains fragile, but functioning.67 True to his default, Trump has resigned but not yet left, and America is still in but underperforming. The other parties initially all responded to Trump’s action by saying that they still intended to comply with the Deal. While the Plan’s future is in considerable jeopardy, as with the Paris Climate Deal, the carefully constructed regime of cooperation has become the focal point for all interested stakeholders’ expectations. As with other Trump exits, after the withdrawal announcement, what comes next?

In critical respects, the JCPOA is both a product and a generator of transnational legal process. The key political commitments in the deal—which are multilateral, sequential, and enforced by existing domestic sanction authorities—have already been fulfilled. In January 2016, Iran dismantled much of its nuclear program, in accordance with its agreement with the P5+1. The United States and the European Union removed their nuclear-related domestic sanctions, and the U.N. Security Council lifted similar (p.63) sanctions under Resolution 2231, which terminated and replaced past resolutions. Under domestic and international law, the Deal is a politically, not legally, binding arrangement, implemented on the U.S. side largely through executive branch waivers of nuclear-related sanctions. The legislative waiver provisions require the president to certify every 120 days whether Iran is in compliance with the Deal, regularly reminding Trump of his continuing validation of an agreement that he had constantly disparaged. The statutory deadlines painted Trump into a corner, reminding him every four months that he either had to eat his words, or refuse to waive sanctions and jeopardize the accord. Similarly, the deal required the IAEA to monitor adherence to international law by certifying quarterly that Iran is in compliance with the JCPOA, which it has now done ten times. In May 2018, the IAEA once again confirmed “that the nuclear-related commitments [of the JCPOA] are being implemented by Iran.”68

In September 2017, President Trump attacked the Iran Nuclear Deal before the United Nations, even while again certifying Iran’s compliance with the deal.69 One month later, Trump continued to waive the sanctions but refused to certify the accord on the grounds that the sanctions suspended were not proportionate to Iran’s progress. By so doing, Trump tried to avoid having to make the decision whether to withdraw from or renegotiate the agreement, instead shifting the burden to U.S. allies to broker a new deal and pushing to Congress the decision whether or not to reimpose sanctions.70 But as with repealing Obamacare, the Republican Congress was skeptical of imposing new sanctions without a better deal in place. All the key Republicans—particularly House Speaker Paul Ryan and Senate Foreign Relations Committee Chair Bob Corker—came to see ripping up the deal as not worth the downsides, perhaps hoping that the Iranians would eventually create greater cause for a claim of breach.71 While Israeli Prime (p.64) Minister Benjamin Netanyahu repeatedly attacked the deal, some leading Israelis—including former Defense Minister Ehud Barak—advocated staying in as a peaceful alternative that has “blocked Iran’s path to a nuclear weapon, and prevented the emergence of an arms race in the Middle East.”72

On May 8, 2018, Trump changed course and announced that he would no longer waive U.S. statutory sanctions. But his action has only triggered a new round of transnational legal process. Should the Iranians continue to keep their part of the bargain, the Trump administration would be hard-pressed to explain why they replaced with nothing, a multilateral deal that seemed to have been working.73 The other partners to the deal—the Europeans, the Russians, and the Chinese—will not default on their political obligations just because Donald Trump wants to tear the deal up.74 Nor will they return to unilaterally reimposing sanctions on Iran. Even under the uncertainty created by Trump’s threats, Europe’s trade with Iran nearly doubled in 2016.75 Under the umbrella of intergovernmental cooperation, Iran’s economy has been slowly recovering. Iran has made deals to expand its oil fields, build cars, buy anti-aircraft systems from Russia, and purchase dozens of aircraft from European and American companies. Consistent with the deal’s sanctions relief, the United States had released its hold on—and cannot quickly reclaim—tens of billions of dollars in frozen Iranian oil revenues.76 Gradual re-enmeshment of the foreign and Iranian banking sectors continues.77 Thus, even without U.S. participation, the network of trade deals being struck between the allies’ businesses and Iran’s may well continue.

Trump claimed he was withdrawing to force the other parties back to the negotiating table. But that cannot happen if the other JCPOA participants refuse to renegotiate. Even if talks were now reopened, the Trump administration could hardly get a better deal, simply because the United States could no longer invoke as leverage (p.65) the crushing multilateral sanctions that brought Iran to the table in the first place. Following the TPP model, the Europeans responded to Trump’s announcement by proposing that America’s absence be used not to end the Deal, but rather to expand it beyond nuclear weapons capacity to cover more ballistic activity, the post-2025 period, and broader issues of stability in the Mideast. In theory, the European stakeholders could negotiate long-term investment or energy partnerships with Iran, hoping that in time the mercurial Trump will use a deal primarily renegotiated by others as an excuse to reenter.

In short, Trump is forcing his European allies to choose between siding with America and siding with Iran. If the Europeans bet on Iran, then, as with Cuba, the United States could find itself trying ineffectually to enforce unilateral sanctions on Iran without partners. If the United States aggressively enforces secondary sanctions against European companies doing business in Iran, we could see a replay of the regulatory wars that followed President Reagan’s extraterritorial sanctions on the Soviet pipeline, which ended up pitting the United States against its closest European allies.78 European governments could well revive blocking legislation that prohibits compliance with U.S. judgments and administrative determinations implementing extraterritorial sanctions, which could lead to a transatlantic trade war. European companies would have to decide whether to scale back their still-modest trade and investment in Iran or risk jeopardizing their access to the far larger U.S. market. The United States would be seen not simply as abandoning its allies but also as penalizing their companies for relying upon an agreement that was working. Again, the greatest cost would be immeasurable damage to America’s reputation for global leadership and compliance with international law, undermining perceptions of U.S. responsibility and reliability.

(p.66) Were the JCPOA now to collapse, the access of the IAEA to conduct “eyes-on” inspections inside Iran would also disappear, and that agency would no longer be in a position to verify the exclusively peaceful nature of Iran’s program. In the worst-case scenario, Iranian officials could claim breach by the United States, start enriching uranium again, and restart their program for building a bomb, without IAEA “eyes-on” to monitor their activities. Iran could go on to withdraw from the Treaty on the Nonproliferation of Nuclear Weapons, essentially inviting U.S. or Israeli military action and dramatically destabilizing the region.

Alternatively—and the uneasy status quo for now—is that Iran could choose to keep fulfilling its JCPOA nuclear commitments in order to keep benefiting from the continued lifting of U.N. and E.U. sanctions. Trump’s renewed unilateral sanctions will cover a much smaller percentage of trade than did the original sanctions, and Trump’s May announcement did not mention triggering the “snapback” mechanism of Resolution 2231, which allows any P5 member to reimpose the comprehensive U.N. sanctions, without a vote by the U.N. Security Council, by claiming a violation of the JCPOA. What probably constrained Trump from triggering this mechanism is that the other stakeholders will not likely agree that such a violation has occurred. While the JCPOA technically permits a Security Council Permanent Member who wields a veto to singlehandedly force reimposition of prior Security Council sanctions, the standard for action is whether “the JCPOA Participant State believes [another’s action] constitutes significant non-performance of commitments under the” agreement, a standard that Iran has probably not breached. And, if the United States withdraws from the Deal, it might no longer qualify as a “JCPOA Participant State” authorized to trigger the snapback clause. In addition, Iran could plausibly argue that the United States has no (p.67) good-faith basis for charging breach, as Iran ceased performing only in response to the U.S.’s unilateral withdrawal announcement.79 And even if the U.N. sanctions that were in place before the deal were legally reimposed, the other Security Council members, particularly China and Russia, would not likely enforce them.

The irony, of course, is that all of these legal provisions were designed based on the assumption that Iran, not the United States, would be the first to breach the Deal. In sum, Trump has created yet another “lose–lose” situation, blowing up a preexisting deal without creating a new one, losing in the process allies, leverage, and a guaranteed ability to monitor Iran’s nuclear program.

Between outright collapse and unsteady continuation lies a third possibility: that, as with the Paris Agreement, following unilateral U.S. renunciation, the JCPOA could die a “death by a thousand cuts.” Reimposition of U.S. sanctions could actively discourage third-country investment while at the same time allowing Trump to overread Iranian conduct to place a hair-trigger on snapback sanctions in response to claimed Iranian breaches. The easing of sanctions had led Iranian civil society to see its own hardline leaders as the main obstacle to economic and social progress—but Trump has now resurrected the United States as The Great Satan, who can easily be blamed as the source of all of Iran’s problems. Reformist Iranian President Hassan Rouhani won re-election in May 2017 by staking his reputation on the economic benefits of the deal. So perversely, renunciation by hardliners in Washington will only strengthen the hand of the hardliners in Tehran—including the Islamic Revolutionary Guard Corps. Trump has needlessly diverted his political capital from the real task of mobilizing a broad international effort to contain the adventurism of the (p.68) Revolutionary Guards to a new round of battles with America’s closest allies about a nuclear deal they all still support.80

So even after Trump’s withdrawal announcement, smart-power diplomacy continues, but now without the United States as a part of it. As the Kremlin’s spokesperson recently put it, the Iran deal was not a U.S. construct, but rather “the result of a consensus among many parties” that may be seen as “either good or bad, but it is the only one that reflects this consensus.”81 The goal of this new intense round of public and private negotiating will not be regulating Iran’s misbehavior so much as ensuring that Trump’s intemperate withdrawal does not trigger a permanently destabilizing moment.

What all of this reminds us again is that it is often easier to resign than to leave, and that multiparty deals do not automatically collapse when one party reneges. Multilateral agreements are sticky, and global governance regimes are path-dependent. As these regimes develop, they take on lives of their own—building consensus about what sets of norms, rules, principles, and decision-making procedures should apply in particular issue areas. Intricate patterns of layered public and private cooperation develop, and formal lawmaking and institutions eventually emerge. These patterns create stiff paths of least resistance from which new political leaders can deviate only at considerable cost. All Trump has done is force that process of engage–translate–leverage to shift its focus from Iran, and to take place without him and about him.

Perhaps most important, the Iran deal shows that Trump’s strategy of disengage–black hole–hard power leads nowhere. The United States’ best option for keeping Iran free of nuclear weapons continues to be the smart-power strategy of engage–translate–leverage. In the words of the two lead American negotiators on Iran, the best approach remains “keep[ing] the world’s powers united (p.69) and the burden of proof on Iran[. . . :] relentless [multilateral] enforcement; enhancing sanctions that punish Iran’s non-nuclear misbehavior, including its missile program and sponsorship of terrorism; working closely with Arab partners to deter Iran’s meddling in their internal affairs; and making plain our concerns with Iran’s domestic human rights abuses[, while] using the diplomatic channel we opened with Iran, after 35 years without such contact, to avoid inadvertent escalation.”82

Trump claims that his withdrawal will take until at least the end of 2018 to fully implement. Until then, the United States will stay in the Iran Deal and underperform. But as the next chapter shows, Trump has once again underestimated the deep interconnectivity of our global commitments. By conveying that the United States is leaving the Iran Deal, he has given Iran’s hardliners greater cause to be the first mover in actually breaking the deal. Instead of staying in step with his allies, he has set in motion a process that threatens to make them adversaries. Transnational legal process continues, but his actions have now made the United States, not Iran, the target of that process.

Having checked the “resign” box, Trump now seems inclined to claim that he has finally taken strong symbolic action against Iran and turn his real attention elsewhere (while continuing to demonize Iran rhetorically). But given the immense stakes in Korea, one could hardly imagine a less opportune moment for America’s president to denigrate the kind of denuclearization diplomacy that has peacefully eliminated 98 percent of a country’s enriched uranium stockpiles. Nor is this a good moment to give our adversaries reason to question America’s willingness to keep its nuclear deals. After all, Kim Jong-un’s commitment to carry forward his unspecified June 2018 Singapore pledge to pursue complete denuclearization turns fundamentally upon Trump’s willingness to complete his own (p.70) part of the bargain. So as with the Paris Agreement, Trump has given notice, but for now, the multilateral regime continues. The Iran Nuclear Deal may well survive in some form, if only to keep the North Koreans at the negotiating table. If our allies preserve or even expand the Iran Deal without U.S. leadership, it could become yet another international agreement—like the TPP—that in time Trump ends up applying to rejoin. (p.71)


(1.) Harold Hongju Koh, International Criminal Justice 5.0, 38 YALE J. INT’L L. 525 (2013), available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1436&context=yjil [http://perma.cc/YJ3L-3V4X]. If anything, the claimed “unsigning”—announced in a letter sent by then-Undersecretary of State John Bolton—only focused the attention of the other International Criminal Court parties on the United States’ (p.171) continuing obligations as a treaty signatory not to defeat the object and purpose of the Rome Statute under Article 18 of the Vienna Convention on the Law of Treaties.

(2.) Paris Agreement of the United Nations Framework Convention on Climate Change, art. 28.1, Apr. 22, 2016, T.I.A.S. No. 16-1104 [hereinafter Paris Agreement].

(4.) See Press Release, Communication Regarding Intent to Withdraw from Paris Agreement, U.S. DEP’T OF STATE (Aug. 4, 2017), https://www.state.gov/r/pa/prs/ps/2017/08/273050.htm [https://perma.cc/V8GP-XD6U] (emphasis added).

(6.) Nikki Haley, U.S. Ambassador to the U.N., Diplomatic Note to the U.N. Secretary-General (Aug. 4, 2017).

(7.) Geoffrey Smith, Germany and China Position Themselves as World Climate Leaders, FORTUNE, June 1, 2017, http://www.fortune.com/2017/06/01/paris-agreement-germany-china-trump [https://perma.cc/V2CC-5EJP]. For example, the Indian Supreme Court has recently backed tougher emissions standards, which may improve its own international bargaining leverage in the years ahead. Amy Kazmin, Indian Court Backs Drive for Tough Auto Emissions Standards, FIN. TIMES, Mar. 29, 2017, https://www.ft.com/content/41b4f4bc-1483-11e7-80f4-13e067d5072c [https://perma.cc/8FA2-77BT].

(8.) See Emre Peker, Trump Administration Seeks to Avoid Withdrawal from Paris Climate Accord, WALL ST. J., Sept. 16, 2017, 5:16 PM, https://www.wsj.com/articles/trump-administration-wont-withdraw-from-paris-climate-deal-1505593922 [https://perma.cc/4VPP-K83J] (quoting Trump official at diplomatic meeting stating that the United States would stay in under “the right conditions”).

(9.) Quadrennial Energy Review: Second Installment, Energy.gov, https://www.energy.gov/policy/initiatives/quadrennial-energy-review-qer/quadrennial-energy-review-second-installment (last visited July 6, 2018).

(10.) West Virginia v. E.P.A., 136 S. Ct. 1000 (2016).

(11.) West Virginia v. E.P.A., No. 15-1363 (D.C. Cir. Apr. 28, 2017). The D.C. Circuit has three times extended its holding of the case in abeyance, mandating that the EPA provide regular status reports while the agency considers its path forward. Order, West Virginia v. E.P.A., No. 15-1363 (Mar. 1, 2018).

(12.) Order, West Virginia v. E.P.A., No. 15-1363 (Aug. 8, 2017) (Millet and Tatel, JJ., concurring). See also John H. Cushman, Jr., Obama’s Clean Power Plan: What to Know About the Newest Legal Showdown, INSIDE CLIMATE NEWS, May 17, 2017, https://insideclimatenews.org/news/16052017/clean-power-plan-epa-lawsuit-trump-obama-climate-change [https://perma.cc/2JK2-L4RH].

(13.) Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 82 Fed. Reg. 48,035 (proposed Oct. 16, 2017); State Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units, 82 Fed. Reg. 61,507 (proposed Dec. 28, 2017).

(14.) EPA Status Report, West Virginia v. E.P.A., No. 15-1363 (D.C. Cir. May 2, 2018).

(15.) Mid-Term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022–2025 Light-Duty Vehicles, 83 Fed. Reg. 16,077 (proposed Apr. 13, 2018).

(16.) Coral Davenport & Bill Vlasic, Trump Using Detroit as Stage for Loosening Obama’s Fuel Economy Rules, N.Y. TIMES, Mar. 15, 2017, https://www.nytimes.com/2017/03/15/us/politics/trump-obama-fuel-economy-standards.html [https://perma.cc/FM92-H3WF]. For a comprehensive review of ongoing climate change litigation, see Dena Adler, U.S. Climate Change Litigation in the Age of Trump: Year One (Feb. 2018), http://columbiaclimatelaw.com/files/2018/02/Adler-2018-02-U.S.-Climate-Change-Litigation-in-the-Age-of-Trump-Year-One.pdf.

(17.) David Hasemyer, Fossil Fuels on Trial: Where the Major Climate Change Lawsuits Stand Today, INSIDE CLIMATE NEWS, Apr. 4, 2018, https://insideclimatenews.org/news/04042018/climate-change-fossil-fuel-company-lawsuits-timeline-exxon-children-california-cities-attorney-general (enumerating lawsuits).

(18.) Hiroko Tabuchi & Coral Davenport, California Sues Trump Administration over Car Emissions Rules, N.Y. TIMES, May 1, 2018, https://www.nytimes.com/2018/05/01/climate/california-sues-trump-administration.html [https://perma.cc/E3VD-AKQJ].

(19.) Camille von Kaenel, Will Trump Intervene in War over Car Rules?, E&E NEWS, May 4, 2018, https://www.eenews.net/climatewire/2018/05/04/stories/1060080801 [https://perma.cc/GP5Y-USSR]; Evan Halper & Joseph Tanfani, Trump Administration Moves on Two Fronts to Challenge California Environmental Protections, L.A. TIMES, Apr. 2, 2018, http://www.latimes.com/politics/la-na-pol-epa-fuel-standards-20180402-story.html [https://perma.cc/D4MJ-9XLE].

(20.) Camille von Kaenel, Trump Admin Draft Proposal Would Freeze Fuel Economy, E&E NEWS, Apr. 27, 2018, https://www.eenews.net/eenewspm/stories/1060080359 [https://perma.cc/7R33-YCU3].

(21.) Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151, 1173 (E.D. Cal. 2007); Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 347 (D. Vt. 2007).

(22.) Lisa Friedman, Court Blocks E.P.A. Effort to Suspend Obama-Era Methane Rule, N.Y. TIMES, July 3, 2017, https://www.nytimes.com/2017/07/03/climate/court-blocks-epa-effort-to-suspend-obama-era-methane-rule.html [http://perma.cc/2JZY-VMHH].

(23.) Rene Marsh, EPA Ordered to Enforce Obama-Era Methane Pollution Rule, CNN, Aug. 1, 2017, 12:55AM, http://www.cnn.com/2017/07/31/politics/dc-circuit-epa-methane-rule/index.html [https://perma.cc/W6SS-P33T].

(24.) The D.C. Circuit initially struck down the EPA’s 2015 hydrofluorocarbon rule in 2017, but several parties plan to seek review at the Supreme Court. Amanda Reilly, HFC Case May Head to Supreme Court, E&E NEWS, Mar. 14, 2018, https://www.eenews.net/greenwire/2018/03/14/stories/1060076315 [https://perma.cc/SEQ8-9MDY]; Coral Davenport, Nations, Fighting Powerful Refrigerant That Warms Planet, Reach Landmark Deal, N.Y. TIMES, Oct. 15, 2016, https://www.nytimes.com/2016/10/15/world/africa/kigali-deal-hfc-air-conditioners.html [https://perma.cc/T38A-Q7SZ].

(25.) 444 U.S. 996 (1979) (per curiam) (granting, vacating, and remanding with instructions to dismiss complaint).

(26.) See Goldwater, 444 U.S. at 996 (Powell, J., concurring) (“The Judicial Branch should not decide issues affecting the allocation of power between the president and Congress until the political branches reach a constitutional impasse.”); id. at 1006 (Brennan, J., dissenting) (citing the president’s plenary textual recognition power as a basis for affirmance on the merits). Justice Rehnquist, joined by Chief Justice Burger, and Justices Stewart and Stevens found that the case raised a political question. Justices Blackmun and White voted that the case should be set for plenary briefing and argument. Justice Marshall concurred in the result without explanation.

(27.) See, e.g., Beacon Products Corp. v. Reagan, 633 F. Supp. 1191 (D. Mass. 1986), aff’d on other grounds, 814 F.2d 1 (1st Cir. 1987) (concerning the United States’ Treaty of Friendship, Commerce, and Navigation with Nicaragua) (“[A constitutional] challenge to the president’s power vis-a-vis treaty termination raise[s] a nonjusticiable political question.”); Kucinich v. Bush, 236 F. Supp. 2d 1 (D.D.C. 2002) (dismissing as a nonjusticiable political question congressman’s challenge to President George W. Bush’s decision to withdraw from the Anti-Ballistic Missile Treaty with Russia).

(28.) Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430 (2012) (reversing the lower court’s political question ruling on the ground that the “[r]esolution of [plaintiff’s] claim demands careful (p.174) examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the [law in question] and of the [constitutional] powers [in dispute]” and asserting that “[t]he political question doctrine poses no bar to judicial review of this case”). The Chief Justice notably omitted mention of the much-cited six-factor political question test originally introduced in Baker v. Carr, 369 U.S. 186 (1962).

(29.) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952); Myers v. United States, 272 U.S. 52 (1925); INS v. Chadha, 462 U.S. 919 (1983); Morrison v. Olson, 487 U.S. 654 (1988); Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012).

(30.) 549 U.S. 497 (2007). Over Chief Justice Roberts’s dissent on the standing issue, Justice Stevens, writing for the Court, held that the state of Massachusetts had standing, due to its “stake in protecting its quasi-sovereign interests,” to sue the EPA over potential damage caused to its territory as a result of global warming.

(31.) 504 U.S. 555 (1992).

(32.) Curtis Bradley & Jack Goldsmith, Presidential Control over International Law, 131 HARV. L. REV. 1201, 1224, 1293 (2018).

(33.) 462 U.S. 919 (1983). With respect to political questions, Chief Justice Burger wrote for the Chadha Court that “[t]he presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine.” Id. at 940–41.

On the merits, the Court was unmoved by the broad past historical use of the legislative veto:

the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. . . . [O]ur inquiry is sharpened, rather than blunted, by the fact that congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies. . . . [P]olicy arguments supporting even useful “political inventions” are subject to the demands of the Constitution, which defines powers and, with respect to this subject, sets out just how those powers are to be exercised.

Id. at 945 (emphasis added).

(34.) R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, [2017] 2 W. L. R. 583.

(35.) See Democratic Alliance v. Minister of International Relations and Cooperation, High Court of South Africa (Gauteng Division, Pretoria), (p.175) Case No. 83145/2016 (Feb. 22, 2017) (“[T]he power to bind the country to the Rome Statute is expressly conferred on parliament. It must therefore, perforce, be parliament which has the power to decide whether an international agreement ceases to bind the country.”). (emphasis added).


(37.) See, e.g., Julian Ku & John Yoo, Trump Might Be Stuck with NAFTA, L.A. TIMES, Nov. 29, 2016, http://www.latimes.com/opinion/op-ed/la-oe-yoo-ku-trump-nafta-20161129-story.html.

(38.) Background on the Under2, UNDER2º, http://under2mou.org/background [https://perma.cc/U79G-MCV6] (last visited July 6, 2018).

(39.) Eric Wolff, Washington, California, New York Band Together to Form Climate Alliance, POLITICO, June 1, 2017, 6:31 PM, http://www.politico.com/story/2017/06/01/climate-alliance-washington-california-new-york-239038 [https://perma.cc/WF7K-35CL].

(40.) Press Release, The Global Covenant of Mayors for Climate & Energy Announces Its Global Impact, GLOB. COVENANT OF MAYORS FOR CLIMATE & ENERGY (Nov. 13, 2016), http://www.globalcovenantofmayors.org/press/global-covenant-mayors-climate-energy-announces-collective-impact-cities-move-paris-agreement-commitment-action [https://perma.cc/6FZG-6JBF].

(41.) Paris Agreement, supra note 2, art. 4.2; see also Int’l Emissions Trading Ass’n, GHG MARKET SENTIMENT SURVEY 2016 at 10 (11th ed. 2016).

(42.) See BREAKTHROUGH ENERGY, http://www.b-t.energy [https://perma.cc/XC53-JKBU]; Kerry A. Dolan, Bill Gates Launches $1 Billion Breakthrough Energy Investment Fund, FORBES, Dec. 12, 2016, 1:31 PM, https://www.forbes.com/sites/kerryadolan/2016/12/12/bill-gates-launches-1-billion-breakthrough-energy-investment-fund [http://perma.cc/E5CB-LF7F].

(43.) Ambitious Corporate Action Driving Delivery of Paris Goals, WE MEAN BUS. COALITION, Nov. 9, 2016, https://www.wemeanbusinesscoalition.org/content/ambitious-corporate-action-driving-delivery-paris-goals [http://perma.cc/A8M4-S2YQ].

(44.) Merrit Kennedy, Hundreds of U.S. Businesses Urge Trump to Uphold Paris Climate Deal, NPR, Nov. 17, 2016, 11:54 AM, http://www.npr.org/sections/thetwo-way/2016/11/17/502425711/hundreds-of-u-s-businesses-urge-trump-to-uphold-paris-climate-deal [https://perma.cc/8X78-WW5W]; LOW-CARBON USA, Business Backs Low-Carbon USA, http://wwf.worldwildlife.org/site/PageServer?pagename=lowcarbonusa; Samantha Raphelson, Energy Companies Urge Trump to Remain in Paris Climate Agreement, NPR, May 18, 2017, 6:32 PM, http://www.npr.org/2017/05/18/528998592/energy-companies-urge- (p.176) trump-to-remain-in-paris-climate-agreement [https://perma.cc/FJ36-AZWJ].

(45.) Hiroko Tabuchi & Henry Fountain, Bucking Trump, These Cities, States and Companies Commit to Paris Accord, N.Y. TIMES, June 1, 2017, https://www.nytimes.com/2017/06/01/climate/american-cities-climate-standards.html [https://perma.cc/5C79-WYFU].

(46.) CASABLANCA (Warner Bros. 1942).

(47.) Sigmar Gabriel, Foreign Minister, Ger., Speech at the Berlin Foreign Policy Forum at the Körber Foundation: Europe in a Less Comfortable World (Dec. 5, 2017), https://new-york-un.diplo.de/un-en/news-corner/20171205-gabriel-koerberfoundation/1212264.

(48.) Ana Swanson, White House Tries to Pull Nafta Back from Brink as Deadlines Loom, N.Y. TIMES, Apr. 5, 2018, https://www.nytimes.com/2018/04/05/us/politics/nafta-negotiations-trump-canada-mexico.html.

(49.) Alastair Jamieson, Trump Praises Kim at Summit, But Takes Aim at Justin Trudeau, NBC News, June 12, 2018, 7:47 AM, https://www.nbcnews.com/politics/white-house/trump-praises-kim-jong-un-takes-aim-again-justin-trudeau-n882266 (last updated June 12, 2018, 1:23 PM).

(50.) Tom Philips, Donald Trump Soft Pedals After Earlier Threats of Trade War with China, GUARDIAN, Aug. 14, 2017, https://www.theguardian.com/world/2017/aug/15/donald-trump-china-trade-war-investigation.

(51.) Kevin Carmichael, Trump’s Trade Policies Keep Backfiring, FIVETHIRTYEIGHT, Nov. 9, 2017, https://fivethirtyeight.com/features/trumps-trade-policies-keep-backfiring.

(52.) S. Korea Toughens Stance on Free Trade Deal as U.S. Threatens to Scrap KORUS FTA, XINHUA, Oct. 11, 2017, http://www.xinhuanet.com/english/2017-10/11/c_136672153.htm.

(53.) Kanga Kong et al., U.S. Settles South Korea Trade Dispute Before Summit With North, BLOOMBERG, Mar. 26, 2018, https://www.bloomberg.com/news/articles/2018-03-25/south-korea-says-agreement-made-with-u-s-on-trade-deal-tariffs.

(54.) From President Trump’s inauguration to November 1, 2017, the Commerce Department launched 77 unilateral investigations, up from 48 a year earlier, an increase of 61 percent. See Press Release, U.S. Department of Commerce Finds Dumping and Subsidization of Imports of Softwood Lumber from Canada, U.S. Dep’t of Commerce (Nov. 2, 2017), https://www.commerce.gov/news/press-releases/2017/11/us-department-commerce-finds-dumping-and-subsidization-imports-softwood.

(55.) Paul Krugman, Oh, What a Trumpy Trade War!. N.Y. TIMES, Mar. 8, 2018, https://www.nytimes.com/2018/03/08/opinion/trump-trade-tariffs-steel.html.

(56.) Press Release, Steel Imports Up 20% Year-to-Date, Am. Iron and Steel Inst. (Oct. 25, 2017), http://www.steel.org/~/media/Files/AISI/PressReleases/2017/IMP1709.pdf; Dustin Dwyer, As Vote on ZTE Sanctions Looms, Some U.S. Lawmakers Focus on a Bigger Chinese Telecom, NPR, June 15, 2019, https://www.npr.org/2018/06/15/620393860/as-vote-on-zte-sanctions-looms-some-u-s-lawmakers-focus-on-a-bigger-chinese-tele.

(57.) Current Lumber, Pulp and Panel Prices, NAT. RESOURCES CAN., Feb. 6, 2018, 6:32 PM, http://www.nrcan.gc.ca/forests/industry/current-prices/13309.

(58.) The real issue with NAFTA and other free trade agreements is not that trade deals are being badly negotiated but rather that trade adjustment assistance is not “effective in helping displaced workers.” Mark Muro & Joseph Parilla, Maladjusted: It’s Time to Reimagine Economic “Adjustment” Programs, BROOKINGS, Jan. 10, 2017, https://www.brookings.edu/blog/the-avenue/2017/01/10/maladjusted-its-time-to-reimagine-economic-adjustment-programs.

(59.) Robert Farley, Trump Wrong About WTO Record, FACTCHECK.ORG, Oct. 27, 2017, https://www.factcheck.org/2017/10/trump-wrong-wto-record.

(60.) United States Files WTO Complaint on China’s Protection of Intellectual Property Rights, wto, Mar. 26, 2018, https://www.wto.org/english/news_e/news18_e/ds542rfc_26mar18_e.htm.

(61.) Paul Krugman, Bumbling into a Trade War, N.Y. TIMES, Mar. 22, 2018, https://www.nytimes.com/2018/03/22/opinion/trade-war-china-trump.html.

(62.) Ana Swanson & Jim Tankersley, As U.S. Trumpets “America First,” Rest of the World Is Moving On, N.Y. TIMES, Jan. 25, 2018, at B1, available at https://www.nytimes.com/2018/01/24/us/politics/trump-trade-america-first-davos.html.

(63.) Tim Daiss, Trump Pledges to Rip Up Iran Deal; Israelis Say Not So Fast, FORBES, Nov. 22, 2016, 1:50 AM, http://www.forbes.com/sites/timdaiss/2016/11/22/trumps-iran-deal-rhetoric-israelis-say-not-so-fast [https://perma.cc/Q422-SDWC].

(64.) For the full text of the JCPOA, which consists of the agreement itself and five technical annexes, see Joint Comprehensive Plan of Action, U.S. Dep’t of State, http://www.state.gov/e/eb/tfs/spi/iran/jcpoa [http://perma.cc/875H-XPE9]. The Annexes include: Annex I, Nuclear Related Commitments; Annex 2, Sanctions Related Commitments; Annex III, Civil Nuclear Cooperation; Annex IV, Joint Commission; and Annex V, Implementation Plan.

(65.) S.C. Res. 1929 (June 9, 2010).

(66.) Read the Full Transcript of Trump’s Speech on the Iran Nuclear Deal, N.Y. TIMES, May 8, 2018, https://www.nytimes.com/2018/05/08/us/politics/trump-speech-iran-deal.html.

(67.) See Alex Ward, Trump Says Iran Is Violating the Nuclear Deal. It Isn’t., VOX, Aug. 7, 2017, 9:00 AM, https://www.vox.com/2017/8/7/16089848/trump-iran-deal-nuclear-spirit-rip-up [http://perma.cc/5V4H-6ACE].

(68.) Statement by IAEA Director Yukiya Amano, Int’l Atomic Energy Agency, May 9, 2018, available at https://www.iaea.org/newscenter/statements/statement-by-iaea-director-general-yukiya-amano-9-may-2018.

(69.) President Donald Trump, Remarks by President Trump on Iran Strategy, WHITE HOUSE (Oct. 13, 2017), https://www.whitehouse.gov/the-press-office/2017/10/13/remarks-president-trump-iran-strategy [http://perma.cc/SPA3-H76E] (citing Iran’s violations as “exceed[ing] the limit of 130 metric tons of heavy water, . . . fail[ing] to meet [U.S.] expectations in its operation of advanced centrifuges, . . . [and] intimidat[ing] international inspectors”; President Trump also denounced Iran for violating “the spirit of the deal”); Julian Borger, Trump’s Debut at the UN: Threats, Taunts—and Gasps of Alarm from the Diplomats, GUARDIAN, Sept. 23, 2017, 4:00 PM, https://www.theguardian.com/us-news/2017/sep/23/donald-trump-united-nations-general-assembly [http://perma.cc/DP5K-EGGA]; Scott Neuman, State Department Certifies Iran’s Compliance with Nuclear Deal, NPR, July 17, 2017, http://www.npr.org/sections/the-two-way/2017/07/17/537793465/state-department-certifies-irans-compliance-with-nuclear-deal [http://perma.cc/AX57-5QWM].

(70.) President Donald Trump, State of the Union Address (Jan. 30, 2018), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address (“I am asking the Congress to address the fundamental flaws in the terrible Iran nuclear deal.”).

(71.) Mark Landler & David E. Sanger, Trump Disavows Nuclear Deal and Denounces Iranian Leadership, N.Y. TIMES, Oct. 13, 2017, https://www.nytimes.com/2017/10/13/us/politics/trump-iran-nuclear-deal.html [http://perma.cc/4TFZ-J77C]; Jana Winter et al., Trump Assigns White House Team to Target Iran Nuclear Deal, Sidelining State Department, FOREIGN POL’Y, July21,2017,http://www.foreignpolicy.com/2017/07/21/trump-assigns-white-house-team-to-target-iran-nuclear-deal-sidelining-state-department [http://perma.cc/AA7E-Z5JJ].

(72.) Daiss, supra note 63 (quoting Shemuel Meir, former analyst for the Israeli Defense Forces and researcher at Tel Aviv University); see also Carmi Gillon, The Iran Nuclear Deal Has Been a Blessing for Israel, (p.179) FOREIGN POL’Y, July 13, 2017, http://foreignpolicy.com/2017/07/13/the-iran-nuclear-deal-has-been-a-blessing-for-israel-jcpoa [http://perma.cc/TFT5-ECAT] (“[W]hile the majority of my colleagues in the Israeli military and intelligence communities supported the deal once it was reached, many of those who had major reservations now acknowledge that it has had a positive impact on Israel’s security and must be fully maintained by the United States and other signatory nations.”).

(73.) Colin Kahl, The Myth of a “Better” Iran Deal, FOREIGN POL’Y, Sept. 26, 2017, http://foreignpolicy.com/2017/09/26/the-myth-of-a-better-iran-deal [http://perma.cc/DZ76-6YP6].

(74.) See Joshua Keating, What Happens If Trump Blows Up the Iran Deal?, SLATE, Nov. 17, 2016, 3:38 PM, http://www.slate.com/blogs/the_slatest/2016/11/17/what_happens_if_trump_blows_up_the_iran_deal.html [http://perma.cc/4GZV-33QC] (noting that “EU governments . . . recently reaffirmed their commitment to continue with the deal”).

(75.) Int’l Crisis Group, The Iran Nuclear Deal at Two: A Status Report (Jan. 16, 2018), available at https://www.crisisgroup.org/middle-east-north-africa/gulf-and-arabian-peninsula/iran/181-iran-nuclear-deal-two-status-report.

(76.) Oren Dorell, Could Trump Trash the Iran Deal? Yes, but It’s Complicated, USA TODAY, Nov. 10, 2016, http://www.usatoday.com/story/news/world/2016/11/10/could-trump-trash-iran-deal-yes-but-s-complicated/93568040 [http://perma.cc/RX4C-3WVM].

(77.) See Dan Joyner, The Trump Presidency and the Iran Nuclear Deal: Initial Thoughts, EJIL: TALK!, Nov. 17, 2016, http://www.ejiltalk.org/the-trump-presidency-and-the-iran-nuclear-deal-initial-thoughts [http://perma.cc/HC2W-WQAK] (“If the U.S. were to re-impose or even strengthen secondary banking sanctions on foreign banks, it’s hard to say if this would have any effect on the pace of re-engagement with Iran by European and Asian businesses, mostly because those businesses have already had to find ways to work around unclear U.S. banking sanctions. . . .”).

(78.) See generally Kenneth W. Dam, Economic and Political Aspects of Extraterritoriality, 19 INT’L LAW. 887 (1985), available at https://www.jstor.org/stable/40705649?seq=1#page_scan_tab_contents (describing Soviet pipeline controversy of the 1980s).

(79.) Jean Galbraith, The End of the Iran Deal and the Future of the Security Council Snapback, OPINIO JURIS, May 10, 2018, http://opiniojuris.org/2018/05/09/the-end-of-the-iran-deal-and-the-future-of-the-security-council-snapback/.

(80.) Y.J. Fischer, Trump Is Going Easy on Iran, L.A. TIMES, May 6, 2018, http://www.latimes.com/opinion/op-ed/la-oe-fischer-trumps-soft-iran-policy-20180506-story.html.

(81.) Trump to Approve Iran Nuclear Deal for Last Time, BBC, Jan. 12, 2018, http://www.bbc.com/news/world-us-canada-42670577.

(82.) William J. Burns & Jake Sullivan, The Smart Way to Get Tough with Iran, N.Y. TIMES, Sept. 21, 2017, https://www.nytimes.com/2017/09/21/opinion/iran-trump-nuclear-deal-.html [http://perma.cc/7NUE-5VK5].