Intersections of International Trade and Immigration: Current & Proposed Changes

Transcription

1 Intersections of International Trade and Immigration: Current & Proposed Changes February 27, 2018 Speakers: Danielle M. Rizzo, Esq. Harris Beach PLLC Jon P. Yormick, Esq. Phillips Lytle LLP ERIE INSTITUTE OF LAW

2 While international trade deals with the movement of goods across the US border and immigration deals with the movement of non-citizen people into the U.S., there are various points at which the legal and regulatory regimes affecting these two areas intersect. International trade lawyer Jon Yormick of Philips Lytle and Immigration attorney Danielle Rizzo of Harris Beach explore the overlap between these two areas of law and discuss how the Trump administration s proposed changes to NAFTA would impact these fields. Outline: I. EAR and ITAR enforcement actions: A. Jon will introduce the concept of a deemed export and explain how EAR and ITAR export control laws govern these exports. He will describe the increase in enforcement in these areas over the past several years including possible violations and how businesses can mitigate against them. B. Danielle will explain how the immigration I-129 form used in many nonimmigrant visa applications is being used to screen for this issue and how employers are handling answering the relevant question on the form. II. Proposed changes to NAFTA A. Jon will discuss how the proposed changes to NAFTA are being articulated by various members of the administration and government and will then explore how those changes could impact international trade. B. Danielle will discuss the potential impact of a NAFTA repeal on immigration law.

3 DANIELLE M. RIZZO, ESQ. (716) "I see the talent, creativity and ingenuity that immigrants have to offer the United States and work to find the legal paths of entry for individuals to our country and for U.S. companies to gain access to this world-wide talent pool in order to enhance their operations. Danielle focuses on United States immigration and nationality law and on employment-based immigration. Danielle frequently represents foreign traders and investors seeking work authorization in the United States, as well as Canadian citizens seeking entry to the U.S. under the North American Free Trade Agreement (NAFTA). She often meets with individuals in person at the U.S. Canadian border to represent them before U.S. Customs and Border Protection officers who are responsible to adjudicating their applications to the United States. She also represents U.S. companies and their foreign national work force in navigating the visa and permanent residency application processes. AREAS OF EXPERIENCE Education Higher Immigration Law International Trade Law Labor and Employment Law Veterinary Medicine EDUCATION State University of New York at Buffalo School of Law, JD, 2006 Houghton College, BA, 1997summa cum laude ADMISSIONS New York REPRESENTATIVE CLIENT MATTERS Represents clients in the IT consulting field in navigating third party placement rules for H-1B visas. Represents institutions of higher education, including use of Special Handling for PERM labor certification. Represents multinational corporations from start-ups to worldwide organizations seeking to transfer employees to the U.S. PROFESSIONAL AND COMMUNITY ACTIVITIES Danielle is active in the American Immigration Lawyers Association (AILA) in the following volunteer roles: CBP National Liaison Committee, chair, April 2016 present Paralegals Conference Planning Committee, chair, present CBP National Liaison Committee, vice chair, June 2014 April 2016 CBP National Liaison Committee, member, June 2013 June 2014 AILA National Publications Committee, chair, June 2013 June 2015 AILA National Publications Committee, member, June 2011 June 2014 Upstate New York AILA Chapter, chair, vice chair and treasurer, Upstate New York AILA Chapter CLE Annual Program, Coordinator, RECOGNITION Who s Who Legal, Corporate Immigration, 2016 Best Lawyers, Immigration Law since 2013 Best Lawyers, Lawyer of the Year, Immigration Law, 2017

4 JON P. YORMICK, ESQ. Special Counsel, Phillips Lytle LLP Buffalo, Rochester, Washington, DC (716) Mr. Yormick is an experienced international business and trade attorney, practicing for more than 25 years. In his customs and international trade practice, Mr. Yormick represents U.S. and non-u.s. companies before the U.S. Department of Commerce, Bureau of Industry and Security (BIS), U.S. Customs and Border Protection (CBP), the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), the U.S. Department of State, Directorate of Defense Trade Controls (DDTC), the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC), the U.S. International Trade Commission (ITC), and the Canada Border Services Agency (CBSA) on import and export laws and regulations, including the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). He has represented clients in the advanced manufacturing; advanced materials; aerospace and defense; automotive; distribution; electronics; energy; medical device; oil/gas; optics, photonics and imaging (OPI); steel and specialty metals; textiles and apparel; and transportation/logistics sectors. Mr. Yormick regularly advises and represents clients on matters such as compliance programs, due diligence reviews, investigations, penalty proceedings, export licensing of defense and dual use items and technologies, Technical Assistance, Manufacturing License, and Warehouse and Distribution Agreements, economic sanctions and trade embargoes, export licensing of foods, medicine and medical devices under the Trade Sanctions Reform and Export Enhancement Act (TSRA), prior and voluntary self-disclosures of violations, investigations, penalty proceedings, ruling requests, Commodity Jurisdiction determinations, and scope rulings and administrative reviews regarding antidumping/countervailing duty orders. His international business practice involves preparing, reviewing, and negotiating a variety of international commercial agreements relating to commercial agent, distributorship, licensing, manufacturing, supplier, transportation and other strategic alliances, emphasizing litigation avoidance, limitation of liability, tariff reduction, savings under Free Trade Agreements, and other risk management and cost reduction strategies. Mr. Yormick also advises clients on compliance with the Foreign Corrupt Practices Act (FCPA) and other anti-bribery/anti-corruption regimes, such as the UK Bribery Act (UKBA) and Canada s Corruption of Foreign Public Officials Act (CFPOA), including compliance programs and practices, as well as laws relating to international trade and federal government contracts such as the Berry Amendment, the Buy American Act and the Trade Agreements Act. PRACTICE AREAS Commercial Litigation Breach of Contract Government Contracts Government Operations Immigration International Canadian Cross Border Customs & International Trade Export Controls & Economic Sanctions Manufacturing Steel and Specialty Metals Mergers & Acquisitions Optics, Photonics and Imaging

5 White Collar Criminal Defense & Government Investigations ADMITTED TO PRACTICE District of Columbia Maryland Michigan New York Ohio U.S. Court of Appeals, Sixth Circuit U.S. Court of International Trade U.S. District Court, Eastern District of Michigan U.S. District Court, Northern District of Ohio U.S. District Court, Southern District of Ohio U.S. District Court, Western District of New York HONORS & AWARDS Listed in Legal Elite of WNY, International Law, Business First of Buffalo and Buffalo Law Journal, 2013 Cleveland Foreign Credit Group, Member of the Year, 2007 Canisius College, DiGamma Honor Society, 1987 EDUCATION Case Western Reserve University School of Law, J.D., 1990 Canisius College, B.A., 1987 PROFESSIONAL ASSOCIATIONS American Bar Association Section on International Law: Canada Committee, Vice-Chair Customs Law Committee Export Controls and Economic Sanctions Committee Buffalo World Trade Association Canada-U.S. Law Institute Cleveland Metropolitan Bar Association Chair, International Law Section, Customs & International Trade Bar Association Customs Committee District of Columbia Bar International Law Section Export Legal Assistance Network Coordinator Buffalo and Cleveland Greater Cleveland International Lawyers Group (GCILG), Board of Directors Greater Rochester Enterprise Trade Council Northern Ohio District Export Council Ohio Aerospace Institute U.S. Small Business Administration, Buffalo District Office International Trade Task Force

6 Does President Trump Have the Power to Withdraw the U.S. From NAFTA? Overview of the Executive Treaty Authority By Danielle Rizzo During his campaign for the U.S. presidency, Donald Trump repeatedly promised to renegotiate or withdraw the U.S. from the North American Free Trade Agreement ( NAFTA ); however, after gaining office, in April of 2017, President Trump s rhetoric shifted toward favoring renegotiation of key provisions of the trilateral agreement. 1 The question remains, however, whether the President of the United States has the constitutional authority to withdraw the United States unilaterally from an international treaty such as NAFTA. NAFTA went into effect over 23 years ago, on January 1, The House of Representatives passed the North American Free Trade Agreement Implementation Act on November 17, 1993, and the bill passed the Senate on November 20, President Bill Clinton signed it into law on December 8, 1993, causing NAFTA to go into effect on January 1, NAFTA was given the full force and effect of an international treaty under U.S. law because it followed the Treaty Clause of the U.S. Constitution, which states, The President... shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur... 5 While the Constitution lays out clear rules by which the United States shall enter into international treaties, however, it remains silent as to how the U.S. should withdraw from treaties. Some treaties, such as NAFTA, contain their own withdrawal provisions. Article 2205 of NAFTA states, A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties. If a Party withdraws, the Agreement shall remain in force for the remaining Parties. However, termination provisions within international treaties establish only the mechanism by which parties may withdraw from treaties with respect to each other. They do not establish the process by which a party s termination of a treaty can be given full force and effect within the laws of the respective nations. The question therefore remains open as to how the United States, within the framework of its own Constitutional law, can withdraw from an international treaty such as NAFTA. This legal question has received widespread attention since January when President Trump began his term in office, as he has sought unilaterally to withdraw the United States from multiple international agreements and treaties. In February 2017, the Congressional Research Service was asked to generate a report on the topic of withdrawal from international agreements in connection with the 1 See, Appelbaum, Binyamin. Trump s Day of Hardball and Confusion on Nafta. New York Times, 27 April Web. Retrieved 30 October "Free Trade Agreements." Office of the United States Trade Representative. Retrieved 30 October H.R North American Free Trade Agreement Implementation Act. Retrieved 30 October An Act to Implement the North American Free Trade Agreement, 8 Dec Pub. Law Web. Retrieved 30 October U.S. Constitution. Art.II, Section 2, Clause 2.

7 U.S. s potential withdrawal from the Paris Agreement and the Iran Nuclear Agreement. 6 The report notes that while proponents of executive power argue that the President was given this authority by Article II, Section I of the constitution which states, broadly: The executive Power shall be vested in a President of the United States of America. But others argue that because the Treaty Clause of the Constitution establishes the treaty authority as a shared power between the executive & legislative branches, it can be inferred that both branches of government should be involved in the termination of treaties as well. They argue further analogize treaties to the establishment of federal laws, which must be repealed through a process which mirrors the manner in which they go into effect and therefore argue that treaties should also be repealed with the advice and consent of 2/3 of the Senate. 7 The CRS report goes on to note further that in practice, U.S. presidents have historically acted to withdraw the country from international treaties without the advice and consent of Senate. This issue was most notably addressed in Goldwater v. Carter, 444 U.S. 996 (1979), a case in which the Supreme Court granted certiorari for the purpose of vacating a federal circuit court decision in which members of Congress had successfully challenged President Carter s withdrawal from the Sino-American Mutual Defense Treaty with Taiwan. Congressional representatives challenged the President s authority to withdraw the U.S. from international treaties without Congressional consent. While the lower court agreed with the congressional representatives who brought the suit, the Supreme Court importantly ruled the matter a non-justiciable political question best left to the public arena for resolution. The Court did not rule in Carter s favor nor did it find that United States presidents have the authority to withdraw from treaties. Rather, it ruled that, at least in the Carter case, it was inappropriate for courts of law to rule on what was essentially a political rather than a legal issue. While in many respects, Goldwater v. Carter is legally and factually similar to NAFTA, it is different in one key aspect, and that is that in addition to receiving Congressional ratification of NAFTA, Congress further passed statutes and implementing regulatory schemes to implement key NAFTA provisions. For example, section 214(e) of the Immigration and Nationality Act and section of Title 8 of the Code of Federal Regulations establish statutory and regulatory schemes for the immigration provisions of NAFTA. Repeal of these statutory provisions would require separate action by Congress, which the President would need to sign. However, the President lacks the authority to unilaterally withdraw statutes passed by Congress. If President Trump were therefore to withdraw the United States unilaterally from NAFTA, then Congress would also need to act to repeal the statutory schemes built on NAFTA. If Congress refused to do so, it would create a clash between the executive and legislative branches which may be considered a justiciable question by the courts. It would most certainly lead to law suits. In short, it remains unclear whether the President has the authority to withdraw the U.S. unilaterally from international treaties and the courts have historically shied away from answering this fundamental Constitutional question. If NAFTA were repealed over Congressional opposition, however, it could create a new, perhaps justiciable legal question as to 6 Mulligan, Stephen P. (2017). Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement (CRS Report No. R44761). Retrieved from Congressional Research Service website: 7 Id.

8 the effect of legislation passed by Congress based upon a treaty from which the United States has since withdrawn.