As hard as it seems, given the current state of political dysfunction in the U.S., now is probably the best time to get a softwood lumber deal done.

Doing so is, counterintuitively, easier now than will be in the future, when it may not be possible at all. And recent developments in Washington give reasons for optimism.

It is easier now because any deal on softwood lumber does not require congressional approval. The recently expired softwood agreement was signed by former U.S. President George W. Bush with neither advice nor consent, let alone a vote by Congress. The only meaningful contact with Congress came when Bush sent a senior administration official to inform key members of that body that a deal would be signed – over their objections.

Management of foreign relations and trade is one of the clear areas of executive authority established by both the U.S. constitution and legal precedent. Few precedents are clearer with this than softwood lumber agreements.

This ability to avoid the ‘field of death’ that is the trench warfare between Administration and Congress is a rare opportunity – a gift almost – for Canada.

Presidents are generally reluctant to use executive authority on matters where there may be strong congressional opposition. They fear angering key congressional and Senate leaders and then have to live with the threat of revenge lurking in the shadows on key legislation – i.e., the things that must be approved by Congress. This haunted Bush for 3½ years after he signed the softwood agreement.

This does not apply to a president nearing the end of his term. In a few short months, this president will never have to deal with Congress again. As Barack Obama remarked during a White House Correspondent’s dinner, “Someone asked me if I had a bucket list for my last months in office. I said, no. but I’ve got an it-rhymes-with-bucket list.”

Indeed. Especially after the November elections when seats are safely won or lost, the ability of an outgoing president to act grows more tempting.

On softwood lumber, this is also a president who owes the industry no favours. It is an industry that is not essential for any of the president’s legacy projects, such as the Trans-Pacific Partnership. If the softwood industry is upset with the president, then it is, at worst, one less cheque coming to endow the Obama presidential library. And, let’s be honest, it’s a cheque no one was expecting anyway.

The industry cannot exact revenge on Congress, either. Its members had, and will have, no say in the agreement. There are ways that Congress could undermine this agreement but they all require an enormous amount of work and thus, while theoretically possible, are not realistic.

The question for Canada is how do we close a softwood agreement that rhymes with “bucket” before the president leaves office. What can we offer to motivate the president to sign a new deal?

The president will not sign an agreement just to do Canada a favour. Any agreement will have to satisfy enough U.S. industry demands for a president to sign in good conscience. We know, however, that we do not have to have everyone on the other side happy with it; it has to be just fair enough that the president will be comfortable signing it.

Obama might sign the agreement to do an incoming Democrat a favour (see my blog There’s Simply No Way Donald Trump Can Win The Election). Every nagging issue, such as softwood, that the outgoing president can clear away is a huge help to his successor. If Hillary Clinton wins the election, her precious political capital can be used for other issues.

It is also unlikely that an incoming president would want to touch the softwood issue. Right now is our best – and perhaps only – time to get a deal done.

Although an incoming president could rescind the deal, the more astute, machiavellian and wiser course is to have it both ways: condemn the previous president for having signed it, claim you would not have signed it, and then sigh and declare it is better for everyone to just live with it. Perhaps we could call such an approach Clintonian?

The other incentive for a president to sign, beyond advancing U.S. interests, is if there were something in it for him. Just as Canada’s lifting of visa requirements for Mexican visitors went hand-in-quid-pro-quo-hand with Mexico lifting a ban on Canadian beef imports, we would need to put a carrot on the table.

This is the biggest challenge. It’s not clear that Canada has a big enough inducement to offer, nor is it clear that even if the prime minister did have something he would put it on the table to get a deal of softwood lumber.

Yet, recent reports indicate a deal is close. Canada and the U.S. have reportedly agreed to a market share approach that would limit Canadian exports to a specified, to-be-negotiated share of the U.S. market. It would allow Canadian provinces flexibility in how they meet that target.

Canada would still probably need to toss something else into the kitty to get the president to sign.

One possibility is a concession on dairy. U.S. Trade Representative Michael Froman has pledged to Congress that he will mount a strong response if Canada limits duty free access for milk protein concentrates. It is conceivable that the U.S. administration would seek the commitment not to impose any such limits as the desired quid pro quo.

Such a deal would not be bad for Canada. We would not be giving up something; just agreeing to not do something. The Canadian dairy industry would not like the concession but, considering the sweetheart deal it got under the TPP, even the hardest members of the dairy lobby probably are consigned to having to give up things like duty free access for U.S. milk solids in the future.

Finally, there may be reason for optimism on softwood.

– Carlo Dade is Director for the Centre for Trade & Investment Policy at the Canada West Foundation.