President Donald Trump is dealing simultaneously with Congress on illegals within the United States and with Mexico (and also Canada) on trade in the negotiations over the North American Free Trade Agreement (NAFTA). Why not wrap the two issues of illegals (mostly from Mexico) and trade with Mexico into one deal?

Trump opposes multilateral trade deals, notably NAFTA, and prefers two-party or bilateral trade deals. He rightly believes the U.S. loses negotiating power in multilateral agreements.

Mexico, which has a very large trade surplus with the U.S., fears Trump will scrap NAFTA. The president could scrap NAFTA, but at the same time open bilateral talks with Mexico on a “Friendship and Commerce” treaty.

The U.S. has many treaties of Friendship, Commerce, and Navigation (FCN). These are bilateral treaties.  In recent decades, however, globalist elements in government and multinational corporations have steered the U.S. away from such treaties and into multilateral trade agreements.

For reasons I have explained in a forthcoming piece, the dispute settlement mechanism in NAFTA is unconstitutional. As former U.S. Ambassador to the United Nations John Bolton has repeatedly warned, multilateral agreements have rule-making and judicial-like processes that undermine U.S. sovereignty.

In trade between Mexico and the U.S., Mexico is the big winner. Mexico sells $63 billion more to the U.S. than the U.S. sells to Mexico. So any new restrictions on imports from Mexico would cause economic pain to Mexico.

Mexico’s economy greatly profits from illegals in the U.S. Mexican nationals here — mostly illegals — sent about $25 billion back to relatives in Mexico during 2016. Such payments leaving the U.S. are called remittances.

Trump has threatened to cut off remittances to Mexico as a way of getting Mexico to pay for a border wall. Under provisions in the Patriot Act, the president could impose regulations that would greatly restrict remittances to Mexico.

In the past, FCNs controlled both the flow of commerce between two countries and the terms allowing foreign nationals to enter the U.S. A modern Friendship and Commerce treaty with Mexico could, in one agreement, cover both the entry of goods and nationals from Mexico.

In my e-book pamphlet, “How to Get Illegals to Go Home,” [1] I explain why so many millions of illegals entered this country after 1996. Neither the illegals from Mexico nor the Mexican government has any incentive for the illegals to return home.

As a candidate and since entering the Oval Office, Trump has decried the impact of illegals and Mexico’s trade surplus on the U.S., but he has not connected the two. Moreover, like most Americans, Trump has not been told how illegals, again, mainly from Mexico, actually exercise great political power within the U.S.

The decennial census count every 10 years redistributes political power in the U.S. It determines for each state the number of its representatives in the House of Representatives and its votes for president in the Electoral College.

The U.S. Census Bureau has been counting everyone in the U.S., not just citizens and permanent residents. It attempts to count all foreigners, including illegals. The counting would be fine if the questionnaire would identify citizens and noncitizens.

The Census Bureau, however, has long refused to ask a citizenship question. The main reason given is this: Those illegally in the U.S. might not fill out the form for fear of being identified and deported.

Regardless, states with large numbers of illegals get more representatives in Congress and votes in the Electoral College.  As I have written elsewhere, this unconstitutionally shifts political power from states with few illegals to those with many. California benefits the most, taking seats in the U.S. House and votes in the Electoral College that belong to other states.

California, in particular, has extremely strong political reasons to oppose any legislation that would not only slow, but actually reverse the flow of illegals. For Trump to overcome such resistance, he might wish to consider a strategy that comes from some of his own proposals.

Trump has recently threatened to impose tariffs of products coming from countries that refuse to accept their nationals deported from the U.S. Since even prior to that threat, the U.S. has had success with some recalcitrant countries using sanctions to get them to accept their nationals.

For Trump, who loves negotiating deals, such a treaty would improve his leverage with Congress. He can cajole and threaten a veto, but Congress controls legislation.

Trump could negotiate a treaty with Mexico making continued, favorable access to the U.S. for Mexican goods and continued flow of remittances to Mexico dependent on Mexico’s cooperation with a plan that entices its illegals to return to Mexico.

For Trump, who loves negotiating deals, such a treaty would improve his leverage with Congress. He can cajole and threaten a veto, but Congress controls legislation. With opposition even from within the slim Republican Senate majority, he is unlikely to get what he has proposed.

If, however, Mexico agrees to a treaty that it desperately needs, the dynamics would change. Sixty-seven senators would have to approve any treaty, more than the 60 required to break a filibuster. But, unlike legislation, senators could not modify the treaty.

In an up-or-down vote, senators would be voting not only for or against Trump, but for or against Mexico, and (if the agreement is properly crafted) for or against undocumented workers and dreamers.

John S. Baker Jr., Ph.D., is professor emeritus at the Louisiana State University Law Center.
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