Constitutional law - Treaty Clause - District Court holds that NAFTA is a valid exercise of the foreign commerce power. - Made in the USA Foundation v. United States, 56 F. Supp. 2d 1226 (N.D. Ala. 1999)

Harvard Law Review

Volumn 113, Issue 5, 2000, Pages 1234-1239

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EID: 26444501318     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1342343     Document Type: Article

References (47)

1. See North American Free Trade Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993) (codified at 19 U.S.C. §§ 3301-3473 (1994)).
2. 56 F. Supp. 2d 1226 (N.D. Ala. 1999).
3. U.S. CONST. art. I, § 8, cl. 3; see Made in the USA, 56 F. Supp. 2d 1317-23.
4. See JAMES R. HOLBEIN & DONALD J. MUSCH, NAFTA: FINAL TEXT, SUMMARY, LEGISLATIVE HISTORY & IMPLEMENTATION DIRECTORY 1-4 (1994) (outlining NAFTA's legislative history).
5. See, e.g., 139 CONG. REC. S16,602-02 (1993) (statement of Sen. Metzenbaum) ("NAFTA guarantees the further exploitation of Mexican workers at the expense of American jobs.").
6. The Senate approved the implementing legislation by a vote of 61 to 38, less than a two-thirds majority. See 139 CONG. REC. 31,040 (1993). The House of Representatives approved the legislation by an even narrower margin of 234 to 200. See 139 CONG. REC. 29,949 (1993).
7. See Made in the USA, 56 F. Supp. 2d at 1232, 1237.
8. U.S. CONST. art. II, § 2, cl. 2; see Made in the USA, 56 F. Supp. 2d at 1229.
9. Acknowledging a lack of "infallibility and finality," Judge Propst's 98-page opinion substantially incorporated the arguments of both parties to provide a detailed record for reviewing courts. Made in the USA, 56 F. Supp. 2d at 1229.
10. See id. at 1235. The voter plaintiffs claimed that Congress's failure to follow Treaty Clause procedures had diluted their Senators' votes, but the court dismissed the suit for lack of standing, finding that the claims were nothing more than a generalized grievance that the federal government had failed to act in accordance with the Constitution. See id. at 1235-36 (citing Raines v. Byrd, 521 U.S. 811 (1997)). However, the court found that the institutional plaintiffs had standing because their alleged injuries - loss of membership and bargaining power - were "fairly traceable to NAFTA and the Implementation Act" and because "there is substantial likelihood that their injuries would be redressed by a favorable decision." Id. at 1253.
11. Following the test outlined in Goldwater v. Carter, 444 U.S. 996, 998 (1979) (Powell, J., concurring), the court found that the questions whether NAFTA is a treaty and whether the Treaty Clause is exclusive were neither textually committed to Congress or the President nor so devoid of textual guidance as to make judicial review unmanageable. See Made in the USA, 56 F. Supp. 2d at 1276-78.
12. See Made in the USA, 56 F. Supp. 2d at 1320-23.
13. Id. at 1317.
14. Id. at 1319-20.
15. Id. at 1319.
16. 22 U.S. (9 Wheat.) 1 (1824).
17. See Made in the USA, 56 F. Supp. 2d at 1317. As the court noted, "[t]he inability of the Congress under the Articles of Confederation to regulate commerce was one of the main weaknesses which led to the call of the Constitutional Convention." Id.
18. Id. at 1320.
19. Id.
20. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 574 (Max Farrand ed., 1966) (emphasis added). The Constitution states simply that 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." U.S. CONST. art. II, § 2, cl. 2. Although the Committee of Style, whose mandate was to make cosmetic rather than substantive modifications to the final text, see id. at 547, changed the language to its current form, see id. at 599, the original language clarifies that the Framers intended the Treaty Clause to be exclusive.
21. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 812 (1995). As Ackerman and Golove detail, the national government at times acted in the sphere of foreign affairs without satisfying Treaty Clause requirements, but these actions were never understood to be binding, see id. at 813-37, and thus lacked "'the dignity' of a treaty" as originally understood by the Framers, id. at 831 (quoting B. Altman & Co. v. United States, 224 U.S. 583, 601 (1912)).
22. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936); see Made in the USA, 56 F. Supp. 2d at 1319-20.
23. Indeed, the court's view is incompatible with the Convention debate, in which Southern delegates defended the two-thirds Senate ratification requirement out of concern about the economic impact of commercial treaties. See Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties - The Original Intent of the Framers of the Constitution Historically Examined, 55 WASH. L. REV. 1, 101 (1979) (providing detailed evidence that "commercial treaties rather than treaties of peace were at the forefront of members' minds" during the Convention);
24. Solomon Slonim, Congressional-Executive Agreements, 14 COLUM. J. TRANSNAT'L L. 434, 442 (1975) ("[I]t is clear that the fear of adverse effects of commercial treaties on sectional interests had prompted the raising of the majority vote to two-thirds."). James Madison even proposed that the two-thirds requirement be lifted for treaties of peace, see 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 20, at 540, apparently reasoning that this heightened structural protection was appropriate only for commercial treaties because of their economic impact.
25. See Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1265-66 (1995).
26. See generally Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999) (arguing that the meaning of an ambiguous constitutional word or phrase may be determined by comparing another passage in the Constitution featuring the same word or phrase).
27. See U.S. CONST., art. I, § 10, cl. 1 ("No state shall enter into any Treaty, Alliance, or Confederation . . . .").
28. U.S. CONST., art. I, § 10, cl. 3 ("No state shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . .").
29. As Abraham Weinfeld elaborately outlines, the constitutional distinction between a "treaty" and an "agreement or compact" precisely parallels Vattel's language in THE LAW OF NATIONS. See Abraham C. Weinfeld, What Did the Framers of the Federal Constitution Mean by "Agreements or Compacts"?, 3 U. CHI. L. REV. 453, 460 (1935).
30. James Wilson, who as a member of the Committee of Detail wrote the draft of the Constitution in which the "agreement or compact" clause first appeared, see 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 20, at 163, 169, was familiar with Vattel. See Weinfeld, supra, at 459. Moreover, Professor St. George Tucker relied on Vattel's distinction in his discussion of the Compact Clause in his appendix to BLACKSTONE'S COMMENTARIES. See 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA app. at 310 (Philadelphia, Birch & Small 1803). So too did an early American diplomat and treatise writer on international law. See HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 310 (3d ed. 1846).
31. See Albert de Lapradelle, Introduction to EMMERICH DE VATTEL, LE DROIT DES GENS OU PRINCIPES DE LA LOI NATURELLE at xxxv-xxxviii (Carnegie Inst. 1916) (1758). Early Americans cited Vattel in congressional debates, see, e.g., 6 ANNALS OF CONG. 2230-31 (1797) (statement of Rep. Swanwick); 4 ANNALS OF CONG. 752-53 (1796) (statement of Rep. Smith), judicial opinions, see, e.g., The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 123 (1812); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 225 (1796); Miller v. The Ship Resolution, 2 U.S.
32. (2 Dall.) 1, 15 (1781) (citing Vattel as a "celebrated writer on the law of nations"), and treatises, see, e.g., DANIEL GARDNER, A TREATISE ON INTERNATIONAL LAW 100-101, 243 (Troy, N.Y., N. Tuttle 1844) (citing Vattel's views on national sovereignty and treaty formation).
33. See also JAMES KENT, COMMENTARY ON INTERNATIONAL LAW 36 (Cambridge, Deighton, Bell & Co. 1878) (noting that Vattel's treatise "has been cited more freely than that of any other public jurist, and is still the statesman's manual and oracle").
34. Weinfeld, supra note 27, at 460 (translating 2 VATTEL, LE DROIT DES GENS OU PRINCIPES DE LA LOI NATERELLE § 153, at 368 (Carnegie Inst. 1916) (1758)).
35. Vattel wrote that "[a] sovereign already bound by a treaty cannot enter into others contrary to the first." E. DE VATTEL, THE LAW OF NATIONS § 165, at 196 (Joseph Chitty ed., 1879) (1758). A fortiori, domestic legislation that contradicts a prior treaty is similarly invalid.
36. See Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1076-1100 (1983);
37. see also Thomas Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703, 715-17 (1975) (arguing that the Framers envisioned judicially enforced higher-law limitations on government).
38. THE FEDERALIST No. 64, at 362 (John Jay) (Clinton Rossiter ed., 1999).
39. Given this evidence, it is doubtful whether NAFTA, which allows signatories to withdraw on six months notice, see North American Free Trade Agreement, Dec. 17, 1992, ch. 22, art. 2205, 32 I.L.M. 605, 703 (1993), is even a treaty within the original meaning of the Treaty Clause.
40. U.S. CONST. art. VI, cl. 2.
41. The "last in time" doctrine was first articulated in Taylor v. Morton, 23 F. Cas. 784, 785 (C.C.D. Mass. 1855) (No. 13,799) (Curtis, Circuit Justice), aff'd on other grounds, 67 U.S. (2 Black) 481 (1862), and was subsequently affirmed by the Supreme Court, see, e.g., The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1870). For a recent reaffirmation, see Breard v. Greene, 523 U.S. 371, 376 (1998). Courts have accorded treaties a presumption against abrogation and will not construe a federal statute to abrogate a treaty without a clear statement of congressional intent See, e.g., Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252 (1984).
42. If treaties are not binding on the nation's legislative processes and can be abrogated at will, the extra protection of two-thirds Senate approval lacks justification. It would be structurally anomalous to require ratification by super-majoritarian processes if abrogation can be achieved by normal legislation. The flaw in Professor Tribe's structural defense of the exclusivity of the Treaty Clause, see Tribe, supra note 24, at 1249-78, is its failure to recognize that the structural rationales for the Treaty Clause depend on the binding character of treaties.
43. See, e.g., Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 772 (1988) ("At this point in our history, when adherence to stare decisis promotes the underlying values of stability and continuity better than does adherence to the original understanding, the latter cannot prevail.").
44. The clause provides not that federal statutes and treaties are equal in stature but only that both (as well as the Constitution) are supreme vis-à-vis the states. See LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 163 (1972). Indeed, the Court has consistently repudiated a parallel textual argument that treaties may supersede explicit provisions of the Constitution because they are equally "supreme" under the Supremacy Clause. See, e.g., Reid v. Covert, 354 U.S. 1, 16-17 (1957); Geofroy v. Riggs, 133 U.S. 258, 267 (1890).
45. The concept of national sovereignty implies that the national government has absolute power in the international sphere and therefore, consistent with the Court's precedents, that the last expression of its will should control. See, e.g., HENKIN, supra note 38, at 168 (arguing that the power to abrogate treaties is "inherent in [national] sovereignty"); Lobel, supra note 31, at 1110-12 (attributing the Court's Supremacy Clause precedents to the rise of "absolute [national] sovereignty"). The United States has always fiercely defended its independence from binding international authority. See, e.g., Thomas W. Lippman, America Avoids the Stand; Why the U.S. Objects to a World Court, WASH. POST, July 26, 1998, at C1. From the standpoint of institutional legitimacy, it might be prudent for the judiciary, as a countermajoritarian institution possessing neither the sword nor the purse, to refrain from radically limiting national legislative power in the face of strong popular dissent. See THE FEDERALIST No. 78, at 433 (Alexander Hamilton) (Clinton Rossiter ed., 1999);
46. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1962).
47. Cf. United States v. Lopez, 514 U.S. 549, 585 (1995) (Thomas, J., concurring) (suggesting the need to "reconsider our 'substantial effects' test with an eye toward constructing a standard that reflects the text and history of the Commerce Clause without totally rejecting our more recent Commerce Clause jurisprudence").