Made in the USA Foundation v. United States

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MEMORANDUM OPINION

PROPST, Senior District Judge.

This cause comes to be heard on a motion to dismiss filed by the defendant on December 21, 1998 and on the respective motions for summary judgment filed by the plaintiffs on March 19, 1999 and by the defendant on April 19, 1999. The parties have acknowledged that there are no genuine issues of fact and that the only issues are issues of law. This court heard recorded oral arguments on May 17, 1999. The parties acknowledged at that hearing that there is no need for any further hearing before this court, evidentiary or otherwise.

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I. Introduction and Summary of the Parties’ Positions

In 1990 the United States, Mexico and Canada initiated negotiations with the intention of creating a “free trade zone” through the elimination or reduction of tariffs and other barriers to trade. After two years of negotiations, the leaders of the three countries signed the North American Free Trade Agreement (“NAFTA” or the “Agreement”) on December 17, 1992. Congress approved and implemented NAFTA on December 8, 1993 with the passage of NAFTA Implementation Act (“Implementation Act”),

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which was passed by a vote of 234 to 200 in the House

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and 61 to 38 in the Senate.

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The Implementation Act served two purposes, to “approve” NAFTA and to provide a series of laws to “locally” enforce NAFTA’s provisions.

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The enactment of the Implementation Act brought to a close a lengthy period of rancorous debate over NAFTA. The instant suit seeks to reopen that debate by pulling back NAFTA’s coat and demonstrating that the Agreement and Implementation Act stand on sand rather than on firm Constitutional ground. Brought to bear in this case is an almost century-long bout of Constitutional theorizing about whether the Treaty Clause, contained in Article II, Section 2 of the United States Constitution (the “Treaty Clause”), creates the exclusive means of making certain types of international agreements.

Neither NAFTA nor the Implementation Act were subjected to the procedures outlined in the Treaty Clause. The President purportedly negotiated and concluded NAFTA pursuant to his constitutional responsibility for conducting the foreign affairs of the United States and in accordance with the Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. § 2901 , et seq. (“Trade Act of 1988”), and the Trade Act of 1974, 19 U.S.C. § 2101 , et seq., (“Trade Act of 1974”), under the so-called “fast track” procedure. Congress then approved and implemented NAFTA by enacting the Implementation Act, allegedly pursuant to its power to legislate in the areas of tariffs and domestic and foreign commerce.

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The plaintiffs contend that this failure to go through the Article II, Section 2, prerequisites renders the Agreement and, apparently, the Implementation Act, unconstitutional. The Government denies this, arguing, first, that this court has no Article III jurisdiction over the instant question because the plaintiffs lack standing to bring this action and also because the plaintiffs’ claims present a non-justiciable political question and, second, that NAFTA and the Implementation Act are not in violation of the Constitution.

The issues have been exceedingly well-briefed and well-argued by both sides. As the Romans might have said, this court is now charged with finding

ventas

from

toto cáelo

positions. This court has been supplied with a variety of ingredients from the parties, academic pundits, voices from the past, caselaw extrapolations and other sources from which a judicial chef can create any desired Constitutional pottage. The issues are relatively easy to state, but are more difficult to resolve.

The issues are the following:

(1) Do the individual plaintiffs have standing to bring this action?

(2) Do plaintiffs Made in the U.S.A. Foundation, United Steel Workers of America and Local 12L United Steel Workers have standing to bring this action?

(3) Does the political question doctrine preclude jurisdiction of this court as to all plaintiffs and all claims?

(4) Do NAFTA and the Implementation Act constitute a “treaty” as contemplated by Article II, Section 2 of the Constitution?

(5) Even if NAFTA and the Implementation Act constitute a “treaty” as contemplated by Article II, Section 2 of the Constitution, was the making and implementation of NAFTA authorized under other provisions of the Constitution?

The only certitude established by the parties through their briefs and oral arguments is that there is no certitude with regard to -any of the issues.

Remarkably, in the over two hundred years of this nation, the Supreme Court of the United States has not specifically and definitively decided the principles applicable to issues (4) and (5). I will discuss the issues in the order stated, except that it will not be possible to totally separate the discussion of the principles applicable to the various issues, because the issues are intertwined. There may be some duplication of discussion. I will, however, reach separate conclusions as to these intertwined issues. In my discussion I will summarize and emphasize the arguments of the parties. I am well aware that this court lacks both infallibility and finality and that any decisions I reach will likely be ephemeral. For this reason I wish to give full vent to the parties’ positions as well as reach my own conclusions. Actual quotes from cases, documents, treatises, articles, etc. as stated by the parties are adopted by the court unless otherwise stated.

II. Standing

For the purposes of the standing analysis the plaintiffs can be divided into two distinct groups: (1) the “voter plaintiffs,” consisting of those plaintiffs who have brought claims in their individual capacities and (2) the “institutional plaintiffs,” which include the Made in the USA Foundation, the United Steelworkers of America, and Local 12L United Steel Workers. The Government asserts that both the institutional and voter plaintiffs lack standing to bring them claims. Although the standing arguments differ somewhat with respect to each of the two sets of plaintiffs, the basic principles of the standing analysis, as outlined by the Supreme Court, apply to both.

“While the Constitution of the United States divides all power conferred upon the Federal Government into ‘legislative Powers,’ ‘[t]he executive Power,’ and ‘[t]he

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judicial Power,’ it does not attempt to define those terms.”

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The Constitution clearly “limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies’ ...”

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The Supreme Court has stated that, “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”

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As stated in

Allen v. Wright,

468 U.S. 737, 750 , 104 S.Ct. 3315 , 82 L.Ed.2d 556 (1984), “the case or contro: versy requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.”

“One of the landmarks, setting apart the ‘Cases’ and ‘Controversies’ that are ‘serving] to identify those disputes which are appropriately resolved through the judicial process,’ — is the doctrine of standing.”

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“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”

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The Supreme Court’s decision in

Lujan v. Defenders of

Wildlife, 504 U.S. 555 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992), represents, perhaps, the most comprehensive exposition of the standing requirements the Court has provided. In

Lujan ,

the Court noted that the standing analysis requires the examination of three criteria, stating:

... [T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not conjectural’ or ‘hypothetical.’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’

504 U.S. at 560-61 , 112 S.Ct. 2130 (citations omitted).

As to the third prong of the standing analysis, the Ninth Circuit has stated that “[T]o have standing, a federal plaintiff must show only that a favorable decision is likely to redress his injury, not that a favorable decision will inevitably redress his injury.”

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The Supreme Court’s decision in

Public Citizen v. Dept. of Justice,

491 U.S. 440 , 109 S.Ct. 2558 , 105 L.Ed.2d 377 (1989), where the Court found that a declaratory judgment might fulfill the re-dressability requirement even if it does not provide full redress for the plaintiffs’ injuries, appears to support the Ninth Circuit’s position.

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Nonetheless, the Supreme Court “ha[s] always insisted on strict compliance” with Article III standing requirements, and the standing inquiry

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is “especially rigorous” in determining the constitutionality of legislation.

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Significant in the analysis of any legal doctrine is the placement of the burden of proof and the degree of proof required. In

Lujan ,

the Court discussed the burden of proof applicable to a standing analysis, stating:

The party invoking federal jurisdiction bears the burden of establishing these elements. See

FW/PBS, Inc. v. Dallas,

493 U.S. 215, 231 , 110 S.Ct. 596, 608 , 107 L.Ed.2d 603 (1990);

Warth,

422 U.S., at 508, 95 S.Ct., at 2210. Since they are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. See

Lujan v. National Wildlife Federation,

497 U.S. 871, 883-889 , 110 S.Ct. 3177, 3185-3189 , 111 L.Ed.2d 695 (1990);

Gladstone Realtors v. Village of Bellwood,

441 U.S. 91, 114-115 , and n. 31, 99 S.Ct. 1601, 1614-1615 , and n. 31, 60 L.Ed.2d 66 (1979);

Simon,

426 U.S., at 45, n. 25, 96 S.Ct., at 1927, and n. 25;

Warth,

422 U.S., at 527, and n. 6, 95

S.Ct., at 2219, and n. 6 (Brennan, J., dissenting).

At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” National Wildlife Federation,

497 U.S., at 889 , 110 S.Ct., at 3189 .

Lujan,

504 U.S. at 561 , 112 S.Ct. 2130 (emphasis added). Thus, for the purposes of this motion, this court will presume that the general allegations made in the plaintiffs’ amended complaint with respect to their alleged injuries are true and that they “embrace those specific facts that are necessary to support the claim.”

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Nonetheless, this court will remain mindful of the plaintiffs’ responsibility of showing that their claims are properly before this court, as the Supreme Court has warned that it is “the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers,”

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and that “a federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.”

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As noted above, the parties divide their standing arguments into two primary categories: (1) those involving the voter plaintiffs; and (2) those involving the institutional plaintiffs. The court will address each in turn.

A. Voter Standing

The individual plaintiffs contend that they have established standing by alleging that their voting rights were diluted because their Senators’ votes on the approval of NAFTA and its Implementing Act were not given their proper weight. According to

Valley Forge Christian College v. Americans United, for Separation of Church and State, Inc.,

454 U.S. 464 , 102 S.Ct. 752 , 70 L.Ed.2d 700 (1982), Article III of the Constitution “requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.’ ”

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A plaintiff must also show that he “stand[s] to profit in some personal interest” by a judgment in his or her favor.

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Further, the plaintiff must show that he has been injured in some particularized way, meaning that the plaintiffs “injury must affect the plaintiff in a personal and individual way.”

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It is “the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.”

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The basis for standing is established “so long as each person can be said to have suffered a distinct and concrete harm.”

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However, “[t]he fact that other citizens or groups of citizens might make the same complaint ... does not lessen appellants’ asserted injury

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and “an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.”

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While the Supreme Court has held that standing exists when a plaintiffs vote has been diluted relative to the votes of other citizens,

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or when voting districts are distorted in the interest of providing specific groups of voters more or less leverage,

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the Court has never recognized/addressed the standing of a plaintiff claiming an injury based on the dilution of the vote of his elected representative. However, the voter plaintiffs in this case are asking this court to decide just such an issue. They maintain that their voting rights were harmed because their Senators’ votes against the approval of NAFTA were effectively nullified by the failure of the Senate and the President to comply with the Treaty Clause.

1.

Michel v. Anderson

The strongest support for voter plaintiffs’ standing argument comes in the form of the D.C. Circuit’s decision in

Michel v. Anderson,

14 F.3d 623 (D.C.Cir.1994). In

Michel ,

the D.C. Circuit held that voters had standing to challenge the constitution

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ality of a House rule allowing territorial delegates to vote in the Committee of the Whole, which diluted their representatives’ votes. Citing previous cases in which the Supreme Court held that voters had standing to challenge practices allegedly diluting their vote, the court stated:

[I]n this case the alleged [vote] dilution occurs after the voters’ representative is elected ... [b]ut we do not understand why that should be of any significance. It could not be argued seriously that voters would not have an injury if their congressman was not permitted to vote at all on the House floor.

That all voters in the states suffer this injury, along with the appellants, does not make it an “abstract” one.

14 F.3d at 626 . The voter plaintiffs argue that this court should follow the reasoning of the

Michel

court and determine that they have standing to bring their claims against the Government.

2.

Raines v. Byrd;

Determining the Applicability and Viability of

Michel

According to the Government, the individual plaintiffs’ attempt to assert standing through a two-step “bootstrapping” argument fails due to the lack of a particularized or identifiable injury to the plaintiffs themselves. Further, the Government contends that NAFTA did not affect the rights of the voter plaintiffs’ Senators to participate and vote on legislation, and that the passage of NAFTA did not hinder the Senators’ ability to participate and vote in the future.

The Government argues both that

Michel

is factually dissimilar from this case and that the Supreme Court’s decision in

Raines v. Byrd

casts serious doubt as to

Michel’s

continued viability. In

Raines,

individual members of Congress brought an action challenging the constitutionality of the Line Item Veto Act. The Court held that the individuals did not have a sufficient “personal stake” in the dispute and did not sufficiently allege a concrete injury so as to establish standing under Article III. The Court, distinguishing its decision in

Powell v. McCormack,

395 U.S. 486 , 89 S.Ct. 1944 , 23 L.Ed.2d 491 (1969),

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found that the Act did not single out any of the plaintiffs, but that the diminution of power damaged all Members of Congress equally. The Court also found that the plaintiffs were seeking redress from a loss of political power rather than something to which they were personally entitled, as was the case in

Powell .

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The

Raines

court further concluded that the plaintiffs’ situation did not fall within its holding in

Coleman v. Miller,

307 U.S. 433 , 59 S.Ct. 972 , 83 L.Ed. 1385 (1939). In

Coleman ,

the Court recognized the standing of state legislators who had been locked in a tie vote that would have defeated the state’s ratification of a proposed federal constitutional amendment, and who claimed that their votes were nullified when the Lieutenant Governor broke the tie by casting his vote in favor of ratification. The Court found that the plaintiffs had “a plain, direct and adequate interest in maintaining the effectiveness of their votes.”

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The plaintiffs in

Raines,

however, had not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated. The Court thus determined that application of

Coleman

to the facts of

Raines

would require too great an extension of the

Coleman

decision. The abstract notion of dilution propounded by the

Raines

plaintiffs was simply not enough to create standing.

The Government argues that this case is factually similar to

Raines

in that the plaintiffs in this case are seeking redress for a dilution in voting power that each member of the Senate has experienced. The failure to utilize the Treaty Clause

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mechanism for the passage of international agreements does not, according to the Government, single out any particular Senators, rather, it influences the relative weight of each of their votes. Further, the Government contends that this case is similar to

Raines

in that the plaintiffs are complaining of a loss of political power rather than of an individual right. Thus, argues the Government, the Supreme Court’s

Raines

decision arguably repudiates the D.C. Circuit’s holding in

Michel .

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The plaintiffs, in contrast, concentrate on the

Raines

decision’s discussion of

Coleman .

They argue that here, as in

Coleman ,

the complaint focuses on the legislators’ loss of voting power in relation to a specific vote. The plaintiffs contend that although the individual plaintiffs’ Senators had sufficient votes to defeat the passage of NAFTA, the Senate, the Congress and the President failed to acknowledge the fact that the Agreement had not been properly ratified. They argue that their votes were not given the proper weight and that they therefore lost a vote which they should have won.

The Government also argues that the voter plaintiffs have failed to allege any specific injury apart from the “generalized interest of all citizens in constitutional government.”

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The Government points to the Supreme Court’s language in

Lujan,

where the Court stated that:

[Rjaising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in the proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.

504 U.S. at 573-74 , 112 S.Ct. 2130 . The Government, in characterizing the plaintiffs’ complaint as a generalized grievance, also cites

Fairchild v. Hughes,

258 U.S. 126 , 42 S.Ct. 274 , 66 L.Ed. 499 (1922), where the Court dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. This case, according to the Government, involves nothing more than a generalized claim that the individual plaintiffs’ Senators, like all other Senators, have, in an indirect and abstract manner, lost some of their voting power. Thus, based on the Supreme Court’s language in

Raines, Lujan,

and

Fairchild ,

the Government contends that the voter plaintiffs’ claims should be dismissed for lack of standing.

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The Government also suggests that the plaintiffs’ claims do not entitle them to any type of declaratory judgment or injunctive relief. The Government argues that when a plaintiff seeks declaratory and injunctive relief, he or she must “establish a real and immediate threat of future injury.”

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“Past exposure to illegal conduct does not suffice to confer standing to seek declaratory and injunctive relief, absent a real threat of imminent and continued ex

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posure to the conduct.”

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Thus, the Government claims, citing

City of Los Angeles v. Lyons,

461 U.S. 95, 102 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983), that unless the plaintiffs can show that the Government will again violate the provisions of the Constitution, they have no right to declaratory and/or injunctive relief.

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B. First Conclusion of the Court

I conclude that the individual plaintiffs have not satisfactorily alleged “voter standing.” In

Allen v. Wright,

the Supreme Court noted that part of the standing inquiry involves the following inquiry: “Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable.”

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Such is the case for the individual plaintiffs. I cannot conclude that these plaintiffs have alleged that they have been injured in a “personal and individual way” or that their injury is “concrete and particularized.”

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As in

Raines,

the plaintiffs in this case have not been individually “singled out for specially unfavorable treatment.”

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Although the plaintiffs argue that their Senators’ votes were not given their proper weight in the NAFTA vote, the plaintiffs do not contend that the NAFTA vote was specifically engineered to injure them or that the process used to conclude NAFTA was created solely for the purpose of diluting their Senators’ votes. The fast track procedure has been used to conclude a number of international agreements since its inception in 1974, it was not created for the purpose of diminishing the votes of the plaintiffs’ Senators. Whatever injury, if any, these plaintiffs may have suffered may be shared by any citizen of the United States who objects to NAFTA regardless of whether their Senator(s) voted for or against NAFTA. A voter whose Senator(s) voted for NAFTA but who himself objects to NAFTA would arguably have an equal right to complain as would a voter whose Senator(s) voted against NAFTA. These plaintiffs’ votes have been no more diluted.

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The injury claimed by

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the voter plaintiffs is simply too abstract to suffice for standing in this case. As noted by the

Whitmore

Court, “an asserted right to have the Government act in accordance with the law is not sufficient, standing alone, to confer jurisdiction ...”

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The voter plaintiffs have asserted little else. These plaintiffs’ claims will be dismissed for lack of standing.

C. Institutional Plaintiffs

The Government argues that the institutional plaintiffs’ claims fail to establish standing when examined under the second and third prongs of the

Lujan

analysis, claiming that the institutional plaintiffs have failed to show that their alleged injuries are fairly traceable to actions taken by the defendant and that they have failed to establish that their injuries are redressable by this court.

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1. Causal Connection

According to the Government, the vague and non-specific allegations of the institutional plaintiffs fail to form sufficient foundation for establishing that their injuries are “fairly traceable” to the actions of the defendant. Further, although the Government argues that the general “causal connection” language of cases such as

Lujan

sufficiently illustrates why the institutional plaintiffs lack standing in this case, it makes an additional “causal connection” argument based on a claimed distinction between NAFTA itself and NAFTA’s implementing legislation.

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a. The Government’s Claimed Distinction Between the NAFTA Agreement and the Implementing Legislation

The Government contends that NAFTA, as concluded between the United States, Canada and Mexico, is separate and distinct from the implementing legislation and related regulations. The Government further submits that the parties to NAFTA did not intend NAFTA to be self-executing, but agreed that each nation would adopt the “necessary legal procedures” to give the agreement effect as domestic law under their respective systems of government.

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The “necessary legal procedures” employed by the United States came in the form of the Implementation Act. In passing the Implementation Act, Congress approved NAFTA and made “all amendments to existing Federal statutes or provision of new authorities, including authority for Federal agencies to issue regulations, known to be necessary or appropriate to enable full implementation of, and compliance with, U.S. obligations under NAFTA.”

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The crux of the Government’s contention with respect to this matter is that even though the Implementation Act refers to NAFTA in establishing a number of the laws necessary for the agreement’s implementation, such reference simply incorporates certain written terms of NAFTA into duly-ap

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proved domestic legislation. The mere fact that the Implementation Act refers to NAFTA does not, according to the Government, make the Agreement and the Act one and the same.

In refuting the plaintiffs’ contentions, outlined below, regarding whether or not portions of NAFTA are self-executing, the Government points to 19 U.S.C. § 3312 (a) which states that no provision of NAFTA shall have effect if it is inconsistent with federal law. This, argues the Government, is a clear statement by Congress indicating that NAFTA itself was to have no effect on United States domestic law.

The Government’s “causal connection” argument springs from its contention that the plaintiffs’ complaint focuses on injuries that could only be caused by the Implementation Act as opposed to NAFTA itself. The Government cites a number of passages from the plaintiffs’ complaint seeking relief from the “implementation” of NAFTA rather than from NAFTA itself, and notes that the plaintiffs have failed to identify any specific provisions of NAFTA itself that have contributed to their alleged injuries. Thus, the Government concludes that the plaintiffs’ claims, while allegedly attacking the constitutionality of NAFTA itself, actually focus upon the provisions of the Implementation Act. This is significant in that, according to the Government, the plaintiffs cannot legitimately argue that the Implementation Act is unconstitutional. Therefore, according to the Government’s analysis, the plaintiffs’ claims are not challenging, and cannot challenge, the constitutionality of the true source of their injuries — the Implementation Act. Rather, plaintiffs’ claims call for the elimination of NAFTA, an international agreement, while claiming injury from duly passed domestic legislation. Thus, the Government argues that the plaintiffs have failed to allege facts showing that their alleged injuries are “fairly traceable” to NAFTA itself.

b. The Plaintiffs’ Response

The institutional plaintiffs note that their complaint alleges that they have suffered the following injuries as a result of the approval and implementation of NAFTA: (1) members of plaintiff Made in the USA Foundation have been impeded in their efforts to buy American-made goods; (2) members of plaintiffs USWA, Local 12L, and Made in the USA Foundation have lost their jobs; (3) plaintiff USWA has lost members as a result of those job losses; (4) plaintiff USWA and its members have been impeded in their efforts to negotiate collective bargaining agreements; and (5) plaintiff USWA.has been forced to utilize scarce resources to counteract and seek redress for the various injuries that NAFTA has caused its membership. They therefore argue that the Government’s basic lack of causal connection argument is without merit.

The institutional plaintiffs make several arguments with respect to the Government’s arguments based on the distinction between NAFTA and the Implementation Act. They first contend that, despite the Government’s attempt to characterize them otherwise, the claims contained in the amended complaint are directed at injuries caused by NAFTA itself. They note that even their original complaint seeks relief from injuries caused both by the making and implementation of NAFTA and that the amended complaint refers specifically to injuries caused by NAFTA itself. Further, they maintain that the attempt to separate NAFTA from the Implementation Act is an invention of the Government for the purposes of this ease and that the alleged distinction represents an attempt to separate that which is inexorably bound together.

The plaintiffs point out that President Clinton’s 1997 “Study on the Operation and Effect of the North American Free Trade Agreement” refers in general to “NAFTA’s ... benefits,” not to the benefits created by the Implementation Act. The Statement of Administrative Action

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submitted to Congress by the President (hereinafter “SAA” or “Statement of Administrative Action”),

44

explaining the expected impact.of NAFTA and describing the necessary implementing legislation acknowledged that, “as a result of NAFTA,” some workers would lose their jobs. The Statement of Administrative Action also stated that the purpose of the implementing legislation was “to bring U.S. law fully into compliance with U.S. obligations under the Agreement.”

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The plaintiffs also argue that the Implementation Act itself makes it clear that it cannot exist without NAFTA, pointing out that most of its provisions take effect only as of the date of entry into force of NAFTA, and that even its threshold provision, in 19 U.S.C. § 3311 , acknowledges this dependence.

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These references to NAFTA represent more than an incorporation of NAFTA’s provisions, argue the plaintiffs. Rather, they represent the complete dependence of the Implementing Act upon the making of the Agreement itself.

The plaintiffs further maintain that the dependence of the Implementation Act on NAFTA does not stop with the threshold provision of the Implementation Act. Rather, they contend that a number of the specific provisions of the Implementation Act are dependent upon NAFTA for their effectiveness. The plaintiffs’ primary examples are the tariff provisions. While the Government characterizes the tariff provisions as completely independent of NAFTA itself, the plaintiffs point out that, in providing the President with authority to reduce tariffs in order to comply with NAFTA, Congress provided that the President could modify or reduce tariffs as “necessary or appropriate to carry out or apply articles 302, 305, 307, 308, and 703 and Annexes 302.2, 307.1, 308.1, 300-B, 703.2, and 703.3 of the [NAFTA].”

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The plaintiffs also argue that many of NAFTA’s provisions are completely independent from the Implementation Act, such that, even if one were to attempt to view the Agreement and the Act as severa-ble, NAFTA would still be playing a major role in the harm suffered by the plaintiffs. Examples of self-executing provisions within NAFTA, according to the plaintiffs, include: (1) commitments made under Articles 302, 307, 309 and 310, whereby the United States agreed not to increase any duty except as provided for in the Agreement and not to adopt certain other prohibitions or restrictions on imports, and (2) provisions under Chapter Eleven requiring Mexico to change its policies regarding foreign investment. Plaintiffs claim that although the law changed in the second example is Mexican law, the law clearly would not have been changed without the Agreement, and that the change has injured plaintiffs by causing American businesses and jobs to move to Mexico. According to the plaintiffs, the Government’s distinction between NAFTA and its implementing legislation is both new and inaccurate. Thus, they contend not only that their claims clearly focus on both the Agreement and the Act, but that, to the extent that they do not, such failure makes no difference in light of the fact that they are part of an indivisible whole.

2. Redressability

The Government’s primary standing-based argument with respect to the institutional plaintiffs focuses on whether the plaintiffs’ injuries would likely be redressed in the event of a favorable ruling. As noted above, where “none of the relief sought by [the plaintiffs’] would likely remedy [their] alleged injury in fact, [the court] must conclude that [plaintiffs] lack standing ...”

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The

Lujan

decision,

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among others, makes clear that “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ”

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The institutional plaintiffs seek two orders from this court: (1) a declaration that NAFTA was not approved in a constitutional manner and therefore is “null, void and of no effect”; and (2) an order directing the President to notify the governments of Mexico and Canada that, within thirty days, the United States is terminating its participation in NAFTA. The Government contends that a recognition of the distinction between NAFTA and the Implementation Act, as detailed above, reveals the fact that even if the plaintiffs did obtain a ruling declaring NAFTA itself unconstitutional, which is all the Government believes that plaintiffs can expect to get in the event of their success on the merits,

50

such a ruling would have no effect on the validity of the Implementation Act. With respect to this court’s ability to strike down NAFTA itself, the Government contends: (1) that this court lacks the requisite authority to order the President of the United States to notify Mexico and Canada of this nation’s withdrawal from NAFTA; (2) that an order directed at subordinate executive branch officials would be insufficient to cease the implementation of NAFTA; and, finally, (3) whatever declaratory judgment the plaintiffs could obtain, be it in the form of an order directing the President to take an action, an order directed at subordinate officials, or a general order declaring NAFTA unconstitutional, is not likely to remedy the plaintiffs’ alleged injuries, because such a judgment would not necessarily cause the governments of Mexico and Canada to change their practices and policies with respect to United States industry and products or cause businesses to alter their behavior or investments in a manner benefitting the plaintiffs. According to this view, any change in the policies of Mexico and Canada or in the practices of American businesses that the plaintiffs might foresee is purely speculative. As the plaintiffs must show that relief is “like

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ly” to redress their injuries, the Government claims that they have failed to satisfy the third prong of the standing criteria as outlined in

Lujan.

The plaintiffs suggest that this court has the power and authority to grant a declaratory judgment that the procedures used to approve NAFTA are unconstitutional. They cite

In re Aircrash in Bali

684 F.2d 1301, 1308-10 (9th Cir.1982), cert. denied, 493 U.S. 917 , 110 S.Ct. 277 , 107 L.Ed.2d 258 (1989);

United States v. Guy W Capps, Inc.,

204 F.2d 655, 659-60 (4th Cir.1953), aff d. on other grounds 348 U.S. 296 , 75 S.Ct. 326 , 99 L.Ed. 329 (1955); and

Swearingen v. United States,

565 F.Supp. 1019 (D.Colo.1983), as examples of cases in which federal courts have addressed the constitutionality of treaty provisions or asserted their authority to do so, and point out that, according to the Restatement (Third) of the Law of Foreign Relations of the United States, §§ 302-303 (1987) (hereinafter “Restatement”), § 326(2), “Courts in the United States have final authority to interpret an international agreement for purposes of applying it as law in the United States.” Thus, the plaintiffs argue that, given this court’s authority to rule on the constitutionality of the provisions of an international agreement, the argument that an order of this court declaring the procedures used to approve NAFTA unconstitutional would have no practical effect is clearly misguided.

a. NAFTA/Implementation Act Distinction With Respect to Redressability

The Government contends that a ruling declaring NAFTA itself unconstitutional would have no effect on the validity or enforceability of the Implementation Act and that, as the plaintiffs have asked for and can receive no more than such a declaration, they have no standing in this case. The plaintiffs contest this contention on the same bases they contest the Government’s claims with respect to the “causal connection” issue — they claim that they have, in fact, asked this court to declare both the Agreement and the Implementation Act unconstitutional and that, in any case, the two are indivisible.

The plaintiffs also argue that, to the extent that this court concludes that the Agreement and Act are distinct and that it can only make a ruling with respect to NAFTA itself, such a ruling would sufficiently redress their injuries. In so arguing, the plaintiffs maintain that if this court declares NAFTA invalid as United States law, the Agreement’s self-executing provisions, cited above,

51

will be invalidated. Furthermore, the plaintiffs assert that if NAFTA itself is held invalid, a number of the Implementation Act’s provisions will, by their own language, be rendered inoperative. Of primary significance among such provisions, according to the plaintiffs, is the Implementation Act’s threshold provision. The plaintiffs contend that the invalidation of this “key provision” would cause the remainder of the implementing legislation to become invalid under basic principles of severability. Under

Scheinberg v. Smith,

659 F.2d 476, 481 (5th Cir.1981), the “controlling inquiry” for purposes of a severability analysis, “is whether the legislature intended the offensive statutory provision to be an integral part of the statutory enactment viewed in its entirety.” If so, the entire statute must be struck down.

52

The principles of severability referenced by the plaintiffs would, according to the Government, not render the Implementation Act inoperative. The Government argues that even if this court did declare NAFTA itself (again, as opposed to the Implementation Act) unconstitutional under United States domestic law, the international obligation of the United States would remain, because this court, accord

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ing to the Government, cannot direct the President to repudiate an international agreement.

53

Thus, that the provisions of the Implementation Act that are dependent upon the completion of NAFTA would not, according to the Government, prevent the Implementation Act from taking effect.

Plaintiffs reply to the Government’s contentions regarding the rule of severability as it applies to international obligations, arguing that the Government’s position has no basis in case law. Further, plaintiffs contend that even if the Government were to be correct about the effect of a valid international obligation on the legislation, the Government’s argument would still fail due to the fact that NAFTA, in the plaintiffs’ view, was designed not to go into effect until the necessary legal procedures in each nation were completed. According to plaintiffs, because the United States never completed those procedures, NAFTA never went into effect and never became binding under international law.

54

b. The Court’s Power to Order the President to Perform an Act

According to the Government, the President, in signing NAFTA, caused the agreement to become binding on the United States under international law.

55

As noted above, the Government argues that this

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court lacks the authority to compel the President to abrogate an international obligation of the United States.

While recognizing that in

Reid v. Covert,

354 U.S. 1, 16-18 , 77 S.Ct. 1222 , 1 L.Ed.2d 1148 (1957), the Supreme Court asserted its right and responsibility to declare whether an international agreement is constitutional or otherwise has effect as domestic law of the United States,

56

the

*1243

Government, citing

Franklin v. Massachusetts,

505 U.S. 788, 802-03 , 112 S.Ct. 2767 , 120 L.Ed.2d 636 (1992);

Mississippi v. Johnson,

71 U.S. (4 Wall.) 475, 501 , 18 L.Ed. 437 (1866); and

Swan v. Clinton,

100 F.3d 973, 976-77 (D.C.Cir.1996), maintains that courts do not have jurisdiction to direct or enjoin the President in the performance of his official duties.

57

The Government contends that the Supreme Court’s language in

Clark v. Allen,

331 U.S. 503, 509 , 67 S.Ct. 1431 , 91 L.Ed. 1633 (1947)

58

;

Van Der Weyde v. Ocean Transp., Co.,

56 S.Ct. 392 , 297 U.S. 114, 118 , 80 L.Ed. 515 (1936)

59

;

Charlton v. Kelly,

229 U.S. 447, 474-76 , 33 S.Ct. 945 ,

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57 L.Ed. 1274 (1913)

60

; and

Terlinden v. Ames,

184 U.S. 270, 283 , 22 S.Ct. 484 , 46 L.Ed. 534 (1902)

61

, supports its contention that courts cannot compel the President to terminate an agreement and abrogate obligations of the United States. Further, pointing to

Flynn v. Shultz,

748 F.2d 1186 (7th Cir.1984), cert. denied, 474 U.S. 830 , 106 S.Ct. 94 , 88 L.Ed.2d 77 (1985)

62

, the Government also makes the assertion that this court cannot impinge upon the President’s constitutional power by dictating how he will conduct this Nation’s foreign affairs. According to this view of presidential power, even if this court were to conclude that the procedure used to approve NAFTA is unconstitutional, the President, by virtue of his foreign affairs powers, would be able to exercise his judgment in determining how to react to such a ruling. The Government argues that the President’s right to exercise his discretion in choosing how to respond to a ruling of this court makes it far less likely that the plaintiffs’ injuries would be redressed by their desired relief, even if this court did have the- authority to grant such relief.

63

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c. The Judiciary’s Ability to Order Subordinate Executive Department Officials to Act or Refrain From Acting and the Effectiveness of Such an Order in this Case

In addressing the Government’s assertion that this court may not order the President to communicate the United States’ withdrawal from NAFTA to Canada and Mexico, the plaintiffs not only argue that the issue of this court’s authority vis-a-vis the President is unsettled, but that such an order is not required to achieve the results they seek. The plaintiffs thus argue, based on the D.C. Circuit’s holding in

Swan v. Clinton

that this court may order subordinate executive officials not to enforce NAFTA’s provisions. In

Swan ,

the plaintiff sought relief against the President and other executive branch officials, seeking to have his removal from the Board of the National Credit Union Administration declared unlawful.

64

The plaintiff sought an injunction ordering the President to reinstate him and/or “such additional relief as the court shall deem just.”

65

The court found that it was unclear whether or not it could order the President to reinstate a Presidential appointee who had been wrongfully dismissed.

66

However, although the court acknowledged that the President alone had the authority to reinstate the plaintiff, the court found that it could get around the question of whether it could direct the President to act while still granting the

*1246

plaintiff relief by ordering subordinate executive officials to act as if plaintiff had been reinstated.

67

The court determined that this partial remedy would be sufficient for redressability “even recognizing that the President has the power, if he so chose, to undercut [the] relief.”

68

In further examining the propriety of its re-dressability determination, the court stated:

We do not believe that ... we are performing an end run around the redressa-bility requirement of standing doctrine. Rather, we are simply recognizing that such partial relief is sufficient for standing purposes when determining whether we can order more complete relief would require us to delve into complicated and exceptionally difficult questions regarding the constitutional relationship between the judiciary and the executive branch.

Id. at 981 . Thus, in the event that this court determines it is unable to directly order the President to terminate this Nation’s participation in NAFTA, the plaintiffs request an order instructing subordinate executive officials to cease their compliance with NAFTA’s provisions.

The Government contends that the plaintiffs reliance on

Swan v. Clinton

is misplaced, arguing that this case is distinguishable from

Swan

in that, in order to provide the plaintiffs with redress, the relief in this case would have to run, in some

instances, directly or indirectly against the President. For instance, the Government argues that only the President is given authority under the Implementation Act to make modifications to tariff rates pursuant to the provisions of NAFTA. An order directing subordinate officials to refuse to comply with NAFTA could, according to the Government, diminish the President’s authority under such provisions and could, therefore, not provide the plaintiffs substantial relief. Further, the Government asserts that any order directing government officials to cease the implementation and operation of the Implementation Act and, thus, NAFTA, amounts to an abrogation of the United States’ obligations under the Agreement — a decision that only the President is authorized to make.

69

The Government argues that, given the Eleventh Circuit’s declaration that “[m]at-ters relating ‘to the conduct of foreign relations ... are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference,’ ”

70

the combination of, (1) the plaintiffs’ failure to specify which officials should be enjoined and which provisions of the Implementing Act and/or regulations those officials should cease to enforce, and (2) the delicate issues of foreign relations implicated in this case, counsels strongly against this court’s finding standing in this case.

71

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The Government concedes that there are subordinate executive officials involved in the continued implementation and operation of NAFTA’s provisions. However, the Government notes that the plaintiffs’ complaint has failed to identify those officials who could be enjoined and that plaintiffs have failed to identify any specific provisions of the Implementation Act or regulations that the unidentified officials should cease to implement in order to redress the plaintiffs’ injuries.

72

d. The “Likely” Reaction of Foreign Governments, Foreign Business and United States Executive Department Officials to a Declaration that NAFTA is Unconstitutional

The plaintiffs argue that the Government’s contentions regarding the potential reaction of the Canadian and Mexican governments is flawed for two reasons. First, plaintiffs maintain that even if a declaration invalidating NAFTA had absolutely no effect on the trade policies of Canada and Mexico, they (the plaintiffs) would still have standing as a result of the influence such declaration would have under domestic law, as noted above. Second, the plaintiffs argue that the suggestion that the United States’ repudiation of NAFTA would have little or no influence on the policies of the other two parties involved in the agreement is far more unlikely and speculative than are plaintiffs’ predictions. The plaintiffs note that the Statement of Administrative Action that accompanied the President’s submission of NAFTA to Congress declared that NAFTA would “eliminate [ ] significant Mexican ... investment restrictions that have distorted

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investment flows ... for decades.”

73

The Statement also proclaimed that “U.S. investors will be entitled to the same treatment in Mexico as Mexican investors and will be protected in the case of expropriation.”

74

The Statement went on to claim that “Nothing about doing business in Mexico will be the same ... which is one of the key benefits of NAFTA, because doing business in Mexico until now has been so difficult.”

75

Finally, the Statement asserted that, “Without NAFTA, it will be business as usual with Mexico. U.S. firms will continue to face ... investment requirements ... and a complete lack of certainty about the conditions of doing business in Mexico.”

76

The plaintiffs thus argue that an order declaring NAFTA unconstitutional as a matter of United States law would clearly have an effect on Mexican trade policies with respect to the United States, noting that in

Duke Power Co. v. Carolina Environmental Study Group,

438 U.S. 59 , 98 S.Ct. 2620 , 57 L.Ed.2d 595 (1978), the Supreme Court held that “a party seeking to invoke federal jurisdiction [is not required to] negate ... speculative and hypothetical possibilities ... in' order to demonstrate the likely effectiveness of judicial relief.”

77

This court’s authority to issue a declaratory judgment in this case redressing their injuries is, according to the plaintiffs, enough to satisfy the Supreme Court’s standing requirements.

78

Plaintiffs note that in

Powell v. McCormack,

the Court considered a claim by a Congressman who alleged that he had been unlawfully excluded from the House of Representatives, and who sought declaratory, mandatory and injunctive relief against certain House members, officials and employees. The Court determined that the plaintiffs request for a declaration that his exclusion was unconstitutional was sufficient, standing alone, to render the case justiciable.

79

Plaintiffs argue that in this case, as in

Powell ,

the declaratory relief sought is sufficient to establish standing. The plaintiffs also argue that several other cases have found that a request for declaratory relief is sufficient to establish standing even when it is unclear as to whether or not the government actor will be bound by the declaration. For example, the plurality opinion in

Franklin v. Massachusetts,

505 U.S. 788 , 112 S.Ct. 2767 , 120 L.Ed.2d 636 (1992), determined that a request for declaratory relief against an agency satisfied the redressability requirement despite the fact that a declaration would not directly bind the President or the other relevant executive and congressional actors. The Court concluded that the declaration was substantially likely to redress the plaintiffs injury because the Court found that it was “substantially likely that the President and other[s] ... would abide by an authoritative” declaratory judgment.

80

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Thus, despite being arguably unable to definitively predict what all of the repercussions of an order declaring NAFTA unconstitutional might be, the plaintiffs argue that they have clearly established that the nullification of NAFTA would eliminate provisions that injured them. The purpose of NAFTA was to bring about a sweeping change in the terms and conditions under which companies do business in Canada, Mexico and the United States. It was recognized by the President that the changes made in United States-Mexico trade policies would not have come about without NAFTA. The Statement of Administrative Action clearly acknowledges that some Americans would lose jobs as a result of the implementation of NAFTA. In 1997, the International Trade Commission recognized that some sectors and regions of the United States had suffered job “dislocations” and earnings reductions as a result of NAFTA.

81

The plaintiffs argue that the Court’s standing determination in

Bennett v. Spear,

520 U.S. 154 , 117 S.Ct. 1154 , 137 L.Ed.2d 281 (1997), repudiates the Government’s assertion that executive department officials might choose to ignore this court’s order. In

Bennett ,

the Supreme Court found that the plaintiffs had met their burden on the redressability element of the standing analysis despite questions as to whether the agency involved would conform to a court order, stating that the plaintiffs’ burden was “relatively modest at this stage of the litigation.”

82

The Government maintains that the plaintiffs’ request for declaratory relief is insufficient to confer standing in this case, as the plaintiffs are still unable to show that it is “substantially likely” that the declaration will redress their injuries. The Government notes that the Declaratory Judgment Act does not discharge the plaintiffs from their obligation to establish that their claim can be redressed by a favorable decision. The plaintiffs’ assertion that standing has been found to exist in cases where it was far from clear that the government actor involved would be bound by a court order is, according to the Government, patently false. The cases cited by the plaintiffs, comments the Government, all involved a finding that it was substantially likely that the government officials involved would abide by a declaratory judgment. Thus, in

Bennett v. Spear,

the Court found that the threat of substantial civil and criminal penalties had a “powerful coercive effect” on the agency involved, and therefore provided a sufficient prospect of remedial action.

83

Similarly, the Court found in

Franklin v. Massachusetts

that it was “substantially likely that the President and other[s]” would abide by a declaratory judgment issued against the Secretary of Commerce.

84

The

Lujan

decision, argues the Government, engages in an analysis that would be appropriate in this case. In

Lujan,

the Court found that because only the Secretary of the Interior would be bound by a decree (as the Secretary was the only named party), the decree sought by the plaintiffs would not redress their alleged injuries.

85

The Government argues that even if NAFTA were declared unconstitutional, such declaration would not guarantee action by the governments of Canada and Mexico that would serve to remedy the injuries to plaintiffs’ lost jobs, wages, and benefits or the plaintiffs’ ability to purchase American-made goods. Along those lines, the Government alleges that, with respect to Mexico, the implementation of NAFTA was not the sole, nor necessarily the primary, factor in motivating American

*1250

companies to move their operations to that country or in causing steelworkers to lose their jobs to Mexican workers. The Government points out that American steel manufacturers had, for some time before the implementation of NAFTA, been subject to the competitive pressure of European steelmakers, and that it is possible that the opening of the Mexican labor market did not replace American, but European, jobs. Further, noting the statements made by various congressmen in the Congressional Record, the Government asserts that American companies had been moving to Mexico well before the implementation of NAFTA.

86

The Government argues that the plaintiffs’ arguments are even more tenuous with respect to Canada, noting that prior to the approval and implementation of NAFTA, the United States-Canada Free Trade Agreement eliminated tariffs and eliminated or reduced other trade barriers between the two nations.

87

Although the United States and Canada agreed to suspend the operation of the earlier agreement while both parties are participants in NAFTA, the suspension of NAFTA would cause the earlier agreement to once again come into force. Thus, the Government argues that the plaintiffs’ complaints regarding the movement of businesses to Canada will surely not be remedied by the eradication of NAFTA.

The Government claims that

Dellums v. U.S. Nuclear Regulatory Comm’n,

863 F.2d 968 (D.C.Cir.1988) and

Greater Tampa Chamber of Commerce v. Goldschmidt,

627 F.2d 258 (D.C.Cir.1980), illustrate that, in this case, the plaintiffs’ rebanee on the predicted actions of independent actors— the governments of Mexico and Canada and the heads of businesses- — makes a finding of redressabibty impossible. In

Dellums ,

the D.C. Circuit considered a claim by an unemployed uranium miner in New Mexico who challenged the Nuclear Regulatory Commission’s- decision to grant a license to import uranium from South Africa. Recognizing that the miner’s inability to find employment constituted injury in fact, the court nonetheless found that the' plaintiff lacked standing because he did not and could not show that it was substantially likely that the relief he sought would redress his injury. The court found that the chain of inferences suggested by the plaintiff to show that a reversal of the regulatory commission’s decision would remedy his situation was too tenuous to satisfy the redressabibty element of the standing inquiry.

88

The court noted that even if the commission were to ban the importation of uranium from South Africa into the United States and the plaintiff could show that such a ban would benefit the uranium mining industry in the United States as a whole, such a showing would still fall short of the requisite showing to establish standing. The court found that the plaintiff would have to show that the revival in the industry would occur in New Mexico (the plaintiffs home state) and that it would benefit him if it did.

89

Thus, the court held that a plaintiff does not have standing “when the effectiveness of the relief requested depends on the unforeseeable actions of a foreign nation.”

90

Similarly, in

Goldschmidt

the plaintiffs challenged the validity of an executive agreement regulating air travel between the United States and the United Kingdom, claiming that the agreement was invalid because it was a treaty that should have been submitted for Senate approval.

*1251

The D.C. Circuit found that even if it did declare the agreement invalid, the plaintiffs had failed to establish that the United Kingdom would react by changing its demands or requirements, and that, therefore, the remedy was not substantially likely to redress the plaintiffs’ injuries.

91

The Government asserts that, as in

Del-lums

and

Goldschmidt ,

the plaintiffs have failed to show that declaring NAFTA unconstitutional would be substantially likely to cause Canada and Mexico to alter their trade policies or to cause American companies to return to or remain in the United States.

92

Further, the Government alleges that the plaintiffs have failed to show that any such resurgence would truly remedy their injuries. This court’s inability to control or predict the actions of Canada and Mexico and thus, its inability to determine whether a given remedy will redress the plaintiffs’ injuries clearly shows that the plaintiffs lack standing in this case according to the Government. Further, according to the Government’s reading of

Allen v. Wright, Simon v. Eastern Kentucky Welfare Rights Organization,

and

Dellums ,

a change in economic incentives alone, without a showing that the change is likely to lead to a reaction that redresses the alleged injury, is insufficient to establish standing. Thus, the Government argues that the plaintiffs must not only show that the relief they seek is likely to result in a change in economic incentives to American companies in the trade policies of the United States, Mexico and Canada, they must also establish that the American companies that have moved or might move their operations to Canada or Mexico will either return to or remain in 'the United States.

. The plaintiffs argue that the Government’s reliance on

Dellums

and

Gold-schmidt

is misplaced. In

Dellums ,

the plaintiffs contended that a ban on the importation of uranium hexafloride, when combined with existing sanctions against South Africa, would “be the proverbial ‘straw that breaks the camel’s back’ and lead to the collapse of the apartheid system.”

93

The court in

Dellums

found that it was completely implausible to suggests that halting the import of uranium from South Africa into the United States would lead to the collapse of apartheid and that it was unlikely that a ban on such imports would lead to any upsurge in the United States uranium mining industry, especially in light of the “dismal” state of the industry as compared to that found in other uranium mining nations.

94

Plaintiffs also note that the miner in

Dellums

made “no claim that the market opening created by a ban on the importation of South African uranium hexafloride would not merely be absorbed by other foreign suppliers ...”

95

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In

Goldschmidt ,

the plaintiffs acknowledged that the United Kingdom would not agree to any modification of the flight limits that had been agreed to in the executive agreement at issue, thus leading the court to decide that a given remedy was unlikely to result in relief.

96

Thus, the plaintiffs argue that the likelihood of response by a foreign nation in this case is clearly much greater than in

Dellums

or

Goldschmidt

Here, unlike the other two cases, there exists a clearly established pattern of trade practices on the part of the relevant foreign nations which reveals what their behavior would most likely be like in the absence of the Agreement. Further, the plaintiffs again argue that even those involved in the - approval and implementation of NAFTA are aware of the fact that the changes brought on by the Agreement would not have come if not for its existence.

The plaintiffs argue that

Simon

and

Allen

both involved similarly speculative claims. In

Simon,

the court found that the plaintiffs had not established that their injuries would be remedied by a declaration invalidating an Internal Revenue Service Revenue Ruling suggesting that hospitals did not have to provide free medical care to the indigent to qualify as charitable organizations under the Internal Revenue Code. The plaintiffs alleged only that the Revenue Ruling encouraged hospitals not to perform such services for the indigent. The court found that the connection between the Revenue Ruling and the injury was simply too tenuous to establish that the invalidation of the ruling would redress the plaintiffs’ injuries.

97

In

Allen,

the court found that an injunction ordering the IRS to deny tax exempt status to racially segregated schools was not likely to redress the plaintiffs’ claimed injury — denial of an integrated education.

98

•

The plaintiffs argue that the redressability claims addressed in

Dellums, Gold-schmidt, Simon

and

Allen,

and, in fact, all the cases cited by the Government were far more speculative than those presented in this case.

99

According to the plaintiffs,

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they have* unlike the plaintiffs in the above-noted cases, sought relief that will logically remedy their injuries by, to some degree, eliminating the clearly identified source of those injuries. Thus, the plaintiffs liken their redressability argument to those presented in cases such as

Association of Data Processing Serv. Orgs. v. Camp,

397 U.S. 150 , 90 S.Ct. 827 , 25 L.Ed.2d 184 (1970) and

Investment Co. Inst. v. Camp,

401 U.S. 617 , 91 S.Ct. 1091 , 28 L.Ed.2d 367 (1971), where the Court found that a company has standing to challenge a government decision that confers a benefit on its direct competitors without having to establish exactly what would transpire in the absence of that benefit.

100

D. Second Conclusion of the Court

I conclude that the institutional plaintiffs have sufficiently alleged injuries that are fairly traceable to NAFTA and the Implementation Act and there is substantial likelihood that their injuries would be redressed by a favorable decision. I reject the Government’s argument that NAFTA is separate and distinct from its implementing legislation. It is obvious that the Agreement and the Implementation Act were designed to be and intended to be applied in tandem.

If there is a violation, it is a continuing violation. Some previously accrued injuries may not be redressable, but that is not to say that future injuries may not be avoided. I cannot conclude that a declaration that NAFTA was unconstitutionally made and implemented would be ignored by the Executive Branch. The President, acting in good faith, could give the six month notice to revoke the Agreement. Such action would address and would be substantially likely to redress the institutional plaintiffs’ injuries.

101

I will not assume that the President will ignore established law. I will not conclude that the President, like Andrew Jackson, would state that since the court has made its decision, it could enforce it. I agree with Justice Story, who said in response, “The Court has done its duty. Let the Nation now do theirs. If we have a Government, let its command be obeyed; if we have not, it is as well to know it at once, and look to the consequences.” I believe that if a controlling court declares NAFTA to be unconstitutional, that decree will be obeyed and it is substantially likely that at

*1254

least some of the institutional plaintiffs’ alleged injuries will be redressed.

102

III. Political Question

The central issue in this case concerns the question of what procedure the United States must follow to adopt and implement a particular international trade agreement. According to the Government, this question is not the type of question that can be properly addressed by the judiciary. Rather, argues the Government, because the text of the Constitution fails to dictate the proper procedure and because the Constitution has clearly granted both the legislative and judicial branches an enormous amount of authority in the areas of foreign affairs and commerce, the choice of what procedure to use is committed to the discretion and expertise of the legislative and executive branches by virtue of the political question doctrine.

The political question doctrine is part of Article Ill’s ease or controversy consideration and has its roots in separation of powers concerns.

103

The political question doctrine differs, however, from other “case or controversy” and jurisdictional analyses. As observed by Ronald Rotunda and John Nowak in their Treatise on Constitutional Law,

An important consequence of the political question doctrine is that a holding of its applicability to a theory of a cause of action renders the government conduct immune from judicial review. Unlike other restrictions on judicial review— doctrines such as case or controversy requirements, standing, ripeness and prematurity, abstractness, mootness, and abstention — all of which can be cured by different factual circumstances, a holding of nonjusticability is absolute in its foreclosure of judicial scrutiny.

Rotunda and Nowak, 1 Treatise on Constitutional Law § 2.16 (2d ed.1992).

In

Baker v. Carr,

369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962), the Supreme Court enumerated six features that can be used to identify a nonjusticiable case:

Prominent on the surface of any case held to involve a political question is found (1) 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; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the- potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. at 217 , 82 S.Ct. 691 . Any one of the above-listed characteristics may be sufficient to preclude judicial review.

104

In

Goldwater v. Carter,

444 U.S. 996 , 100 S.Ct. 533 , 62 L.Ed.2d 428 (1979), Justice Powell’s concurrence suggested that the

Baker

analysis could be condensed into a three-question inquiry:

(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of government?

(ii) Would resolution of the question demand that a court move beyond areas of judicial expertise?

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(iii) Do prudential considerations counsel against judicial intervention?

105

The Government has used this framework in addressing the political question issue. The plaintiffs have responded to the Government’s assertions with respect to each of the questions and, in addition, provided a general argument in favor of the court’s jurisdiction in this case.

The considerations raised by the political question doctrine, although jurisdictional in nature, require the court, in this case, to examine issues that are central to the merits of the case. For instance, much of the discussion concerning the “textual commitment” prong of the

Baker

analysis will involve language, arguments and case citations that are repeated, to some degree, in the parties’ discussions on the merits of the case.

106

Some repetition is regarded by the court as a necessary evil, as it is important that the political question issue be addressed prior to a full discussion of the merits and as the parties have often used the same language, arguments and citations for different purposes in addressing the two issues.

A. Textual Commitment: The Authority of the President and Congress in the Areas of Foreign Affairs and Commerce

The Government argues that this case presents a classic example of a matter committed by the text of the Constitution to the political branches of the federal government, pointing to the vast amount of power conferred on the President and Congress by the text of the Constitution in the areas of foreign affairs and foreign commerce.

The Supreme Court has recognized that the President is the Nation’s “guiding organ in the conduct of- our foreign affairs,” in whom the Constitution vests “vast powers in relation to the outside world.”

107

In

Department of Navy v. Egan,

484 U.S. 518 , 108 S.Ct. 818 , 98 L.Ed.2d 918 (1988), the Court noted that it has “recognized ‘the generally accepted view that foreign policy was the province and responsibility of the Executive.’ ”

108

The breadth of the President’s foreign affairs powers, rise from his role as Chief Executive,

109

and Commander in Chief.

110

The President’s authority in the foreign affairs arena is further strengthened by his enumerated powers to “make Treaties” with the advice and consent of two-thirds of the Senate present,

111

to “appoint Ambassadors ... and Consuls,”

112

and to receive Ambassadors and other public Ministers.

113

Congress’s enumerated powers in the realm of foreign affairs include its power to declare war,

114

its broad power to regulate commerce with foreign nations,

115

and the Senate’s advice and consent role in the constitutionally-outlined treaty-making process.

116

Other relevant delegations of power, according to the Government, include the Congress’s power to raise reve

*1256

nue,

117

and the power to lay and collect taxes, duties, imposts and excises.

118

The Government asserts that the textual grants of authority to the President and Congress in the areas of foreign affairs is comprehensive, placing plenary authority over international agreements in the hands of the political branches of the federal government, and leaving no role for the Judiciary.

119

The Government further notes the Supreme Court’s recognition that the power of the political branches of the federal government includes the authority to conclude international “agreements that do not constitute treaties in the constitutional sense,” as noted in

United States v. Curtiss-Wright Export

Corp.

120

Based on the broad scope of the Presidential and Congressional powers specifically provided for in the Constitution’s text and the Supreme Court’s recognition of the power of the political branches to complete non-treaty international agreements, the Government argues that foreign affairs and foreign commerce are, in terms of the

Baker

criteria, areas committed by the text of the Constitution to the Executive and Legislative branches, and that the plaintiffs’ claims are, therefore, nonjusticiable.

121

The Government argues that, despite providing a lengthy exposition on the origins of the Treaty Clause (below), the plaintiffs fail to make any attempt to reconcile their interpretation of the Clause with the enumerated powers of both the President and the Congress, and that the plaintiffs’ arguments therefore fail to address the issue of whether and to what extent Congress’s broad foreign commerce power overlaps, limits or conflicts with the provisions of the Treaty Clause. Even if they attempted to do so, argues the Government, the plaintiffs would fail to establish the existence of any limits on the power. The Government notes that neither the political branches nor the courts have ever recognized such limitations, and asserts that Justice White’s concurrence in

Downes v. Bidwell,

182 U.S. 244, 313 , 21 S.Ct. 770 , 45 L.Ed. 1088 (1901), supports the contention that the Treaty Clause should not be interpreted to curtail Congress’s power under the Foreign Commerce Clause.

122

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1. Plaintiffs’ Response

The plaintiffs do not contest the Government’s assertion that the political branches have substantial authority over foreign affairs and commerce. However, they contend that, as in

I.N.S. v. Chadha,

462 U.S. 919 , 103 S.Ct. 2764 , 77 L.Ed.2d 317 (1983), what is at issue is not the authority of a branch of government over a certain subject matter, but whether that branch “has chosen a constitutionally permissible means of implementing that power.”

123

Thus, it is “error to suppose that every case or controversy which touches foreign

*1258

relations lies beyond judicial cognizance.”

124

The plaintiffs argue that the “textual commitment” element of the

Baker

analysis requires more than a showing that the federal government has plenary authority in an area. Further, while the Government stresses the importance of the United States’ ties with the foreign nations involved with NAFTA and other international agreements, the plaintiffs note that the Supreme Court has recognized that “foreign commitments” cannot relieve the government of the obligation to “operate within the bounds laid down by the Constitution,” and that “the prohibitions of the Constitution ... cannot be nullified by the Executive or by the Executive and Senate combined.”

125

Thus, courts have the authority to invalidate treaties that violate the Constitution, despite the power of the Executive and Legislative branches in the areas of foreign affairs and commerce.

126

Suggesting that the terms of the Treaty Clause allow the political branches of the government to exercise unfettered discretion in determining whether to subject a particular international agreement to the rigors of the Clause’s procedural requirements is to ignore the language of the Constitution, according to the plaintiffs. The plaintiffs contend that, if an agreement constitutes a treaty within the meaning of Article II, there is only one way in which it can be adopted — the Treaty Clause. Thus, as stated by the Supreme Court in

Weinberger v. Rossi,

456 U.S. 25 , 102 S.Ct. 1510 , 71 L.Ed.2d 715 (1982), “[sjubmission of Art. II treaties to the Senate for ratification is ... required by the Constitution.”

127

Plaintiffs point to the Court of Claims decision in

Atkins v. United States,

214 Ct.Cl. 186 , 556 F.2d 1028 (1977), as further support for their contention that the Government’s “textual commitment” argument is deeply flawed. In

Atkins ,

the court faced the question of whether a claim that a judicial pay act violated the Article III Compensation Clause was nonjusticiable. The court recognized that the Constitution placed the power to set judges’ salaries in the hands of the legislative and executive branches, but noted that the grant of authority contained an express limitation on that power, declaring that “those salaries, once set, shall not be diminished.”

128

The court thus questioned:

*1259

How can it be said that the matter ... is totally committed by the [Constitution] to determination by Congress and the President, without opportunity for judicial intervention, when the [Constitution] contains language that pointedly limits the kind of determination they may make?

Id. The plaintiffs argue that the Treaty Clause contains the same type of pointed limitation on the political branches’ authority to conclude treaties, requiring two-thirds Senate approval.

With respect to the Government’s citation to

Downes v. Bidwell,

the plaintiffs simply point out that the language cited is that of a concurring justice, and that the case involved violations of the structure of constitutional provisions not at issue in this case.

B. Judicially Manageable Standards

The Government also contends that a decision as to whether a particular international agreement should be approved as a treaty or through some other procedure would require this court to consider areas beyond its judicial expertise, as there are, according to the Government, no judicially manageable standards for determining whether an international agreement should be approved pursuant to the Treaty Clause as opposed to some other procedure. While recognizing that it is the role of the courts to interpret the Constitution, the Government argues that

Baker v. Carr

clearly establishes that this role does not empower the courts to make decisions in the absence of judicially manageable standards.

129

Both the constitutional text and historical precedent support this conclusion, according to the Government.

Citing

Marbury v. Madison, 5

U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803),

Powell

and

Chadha ,

the plaintiffs respond that interpretation of the text of the Constitution is not only judicially manageable, but is at the very essence of the judiciary’s duty. Writing for a three-judge district court panel in

Dyer v. Blair,

390 F.Supp. 1291 (N.D.Ill.1975), Justice Stevens wrote, “The mere fact that a court has little or nothing but the language of the Constitution as a guide to its interpretation does not mean that the task of construction is judicially unmanageable.”

130

According to the plaintiffs, the Supreme Court’s opinions in

United States v. Munoz-Flores,

495 U.S. 385, 395-95 , 110 S.Ct. 1964 , 109 L.Ed.2d 384 (1990),

Powell,

395 U.S. at 548 ^9, 89 S.Ct. 1944 and

Chadha,

462 U.S. at 942 , 103 S.Ct. 2764 , support the contention that there exists no lack of judicially manageable standards where the underlying determination to be made is legal in nature, i.e., concerning the interpretation of a legal text such as the Constitution, even in the absence of clearly defined textual terms.

131

Thus, argue the plaintiffs, the lack of a constitutionally-provided definition for the term “treaty” does not deprive this court of judicially - manageable standards by which to rule on the merits of this case.

1. The Government’s Manageability Arguments With Respect to the Constitutional Text and Judicial Precedent

The Government notes that although the Constitution does not provide definitions for the terms “treaties,” “agreements,” and “compacts,” it does mention each term. The term “treaty” is used both in the Treaty Clause,

132

and in the Compact Clause.

133

The Treaty Clause states that

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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.” The Compact Clause refers to the power of the states to deal with foreign powers, completely prohibiting the states from making “treaties” with foreign nations. However, the Compact Clause differentiates between “treaties” on the one hand, and “agreements” and “compacts” on the other, providing that states may not enter into “agreements or compacts” with foreign powers without the consent of Congress. Thus, while completely preventing states from entering into “treaties” with foreign powers, the Constitution allows them to enter into “agreements or compacts” provided they obtain the consent of Congress. With respect to the federal government’s involvement in international agreement-making, the Treaty Clause, as noted above, explicitly outlines a process by which at least some treaties may be made. However, the text of the Constitution does not define the term “treaties”, does not delineate the difference between treaties and those other international agreements it mentions, does not address the procedures by which other international agreements might be completed, and does not explicitly state that treaties are the exclusive means by which the federal government may make agreements with foreign powers or that the Treaty Clause procedure is the only manner in which a treaty may be made.

The Government contends that the lack of specificity within the constitutional text has resulted in a lack of judicially manageable standards for the resolution of this case, and that Supreme Court case law has borne out this proposition. In

Goldwater v. Carter,

444 U.S. 996 , 100 S.Ct. 533 , 62 L.Ed.2d 428 (1979), members of Congress challenged the President’s unilateral termination of a treaty. A plurality of the Court determined that the case was non-justiciable because the text of the Constitution failed to provide any guidance on the issue. Joined by three other members of the Court, Justice Rehnquist noted that although the Constitution provides a clear outline of the Senate’s role in the making of a treaty, the document fails to discuss the Senate’s (or Congress’s) role in the termination of treaties. Justice Rehnquist thus concluded that “in light of the absence of any constitutional provision governing the termination'of a treaty, and the fact that different termination procedures may be appropriate for different treaties ..., the instant case ... ‘must surely be controlled by political standards,’ ” rather than judicially manageable standards.

134

Similarly, in

Nixon v. United States,

506 U.S. 224 , 113 S.Ct. 732 , 122 L.Ed.2d 1 (1993), the Court found that because the Constitution did not place any limits on the Legislative branch’s discretion in dictating the procedures surrounding impeachment proceedings, a former judge’s claim, that the rules and procedures used by the Senate in trying impeachments were improper, was not justiciable. The Court noted that in

Powell v. McCormack

it had held that the judiciary could review the House of Representatives’ finding as to a Member’s qualifications because the Constitution specifically addressed those qualifications. The

Nixon

court contrasted the textual constraints placed upon the House membership qualifications with those placed upon the impeachment process, pointing out that the Constitution makes no mention whatsoever of the process by which the Senate is to try impeachments.

135

The Government argues that this case is analogous to

Goldwater

and

Nixon

in that the constitutional provision at issue does not provide an identifiable textual limit on the authority granted by the Constitution. Just as the Impeach

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ment Clause fails to identify the proper process by which to try impeachments and the Treaty Clause fails to outline the Senate’s role in the abrogation and/or termination of treaties, the Treaty Clause fails to explicitly outline the circumstances, if any, under which its procedures must be adhered to. Thus, argues the Government, this case presents a nonjusticiable issue.

The Government urges this court to follow in the footsteps of

Dole v. Carter,

569 F.2d 1109 (10th Cir.1977). In

Dole ,

the Tenth Circuit “decline[d] to enter into any controversy relating to distinctions which may be drawn between executive agreements and treaties,” in determining that a claim challenging the constitutionality of an international agreement made without the consent of two-thirds of the Senate was nonjusticiable. The Government claims that the plaintiffs’ characterization of the Tenth Circuit’s

Dole

decision is misleading.

136

The issue in the case was “whether the understanding between the United States and Hungary is a treaty or an executive agreement not requiring Senate action.”

137

Given the Tenth Circuit’s express recognition of the controversy surrounding the distinction between executive agreements and “treaties,” and its refusal to address the issue, the Government argues that the

Dole

decision is directly applicable to this case.

2. Plaintiffs’ Response to the Government’s Assertions Regarding Manageability and the Judiciary’s Ability to Construe Constitutional Text

The plaintiffs contend that the absence of a definition for the term “treaty” within the Constitution’s text does not confer unfettered discretion upon the political branches to decide whether a particular agreement is or is not a treaty requiring Treaty Clause procedures. The Supreme Court has, according to the plaintiffs, repeatedly rejected suggestions to the contrary with respect to other constitutional provisions. Thus, in

Chadha ,

the Court found justiciable a claim calling for it to interpret the language of the Presentment Clause, which failed to specify exactly which actions required the concurrence of both Houses of Congress.

138

Similarly, in

United States v. Munoz-Flores,

the Court was confronted with the question of whether a criminal statute requiring courts to impose a monetary “special assessment” on persons convicted of federal misdemeanors was a “bill for raising revenue” according to the Origination Clause of the Constitution.

139

The Constitution does not provide any guidance on exactly what kinds of bills amount to bills “for raising revenue.” The Court, in electing to decide the issue on the merits, rejected the contention that in the absence of clear guidance in the text of the Constitution, such a determination should be considered a political question, stating:

To be sure, the courts must develop standards for making [such] determinations, but the Government suggests no reason that developing such standards will be more difficult in this context than in any other. Surely a judicial system capable of determining when punishment is “cruel and unusual,” when bail is “[ejxcessive,” when searches are “unreasonable,” and when congressional action is “necessary and proper” for executing an enumerated power is capable of making the more prosaic judgments demanded by adjudication of Origination Clause challenges. -

495 U.S. at 395-96 , 110 S.Ct. 1964 .

Finally, despite the fact that “[t]he line between ‘inferior’ and ‘principal’ officers [as used in Article II, Section 2, clause 2 of the Constitution] is one that is far from clear, and the Framers provided little guidance as to where it should be

*1262

drawn,”

140

the Supreme Court has found itself able to define the parameters of such terms and, consequentially,' to interpret the effect of the provision.

141

The plaintiffs contend that, contrary to the Government’s position, the Supreme Court’s

Nixon

and

Goldwater

decisions are consistent with their analysis of

Powell

and

Chadha, supra.

The Impeachment Clause at issue in

Nixon

provides that “[t]he Senate shall have the sole power to try all Impeachments.”

142

The Clause contains three express procedural safeguards (that the Senators be under oath or affirmation, that two-thirds of the Senate vote to convict, and that the Chief Justice preside over any impeachment of the President). The plaintiffs argue, based on pages 229-36 of the

Nixon

decision, that the Court concluded that the challenge to the Senate’s decision to delegate certain proceedings to a committee was non-justi-ciable as a result of its finding that the Framers had made a considered judgment to vest in the Senate the sole power to try impeachments subject only to the three safeguards. Also significant, according to the plaintiffs, is the

Nixon

Court’s express recognition that, unlike

Powell ,

a decision that the case was nonjusticiable would not allow the Senate to “defeat” any “separate provision of the Constitution.”

143

In

Goldwater,

Justice Rehnquist, one of the four justices who concluded that the question of whether the President had the power to unilaterally terminate a treaty was a nonjusticiable political question stated that, “while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to the body’s participation in the abrogation of a treaty.”

144

The plaintiffs note that even given this distinction, four justices expressly disagreed with the position that the case involved a nonjusticiable political question. The ninth justice, Justice Marshall, simply concurred in the result of the case, leaving no indication of his position on the political question issue. Thus, argue the plaintiffs,

Goldwater

fails to support the Government’s claim that this case involves a political question beyond the reach of the Judiciary.

The plaintiffs contest the Government’s reliance on

Dole v. Carter,

explaining that the

Dole

court’s conclusion was limited to the facts before it, that the scope and basis of the court’s ruling is difficult to discern, and that this case, unlike

Dole ,

does not require the court to determine the wisdom of the underlying alleged political decision. In

Dole ,

the Tenth Circuit refused to decide whether an agreement by the President to return the Hungarian crown jewels to that country constituted a treaty requiring Senate ratification. In so refusing, the court found that there was “no way for [the court to] ascertain [ ] the interest of the United States ... in the controversy.”

145

As noted above, the

Dole

court specifically limited its decision to the facts before it. Further, while the

Dole

court believed that a ruling in that case would have required the court to examine the wisdom of the President’s action, this case,

*1263

according to the plaintiffs, involves no such issue. The plaintiffs assert that the question presented in this case is purely a matter of law, requiring the court to undertake a regular judicial function. They argue that to the extent the

Dole

decision suggests otherwise, it conflicts with those cases cited above and should be ignored.

3; Historical Practice

The Government, as noted above, argues that historical precedent supports the process used to negotiate, approve and implement NAFTA. In the absence of judicially manageable standards for deciding the constitutionality of the procedure used, the Government asserts that the courts have no role to play in determining what procedure should be used. Thus, rather than asserting its own views, the Supreme Court has, in cases such as

Mistretta v. United States,

488 U.S. 361 , 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989) and

The Pocket Veto Case,

279 U.S. 655, 689-90 , 49 S.Ct. 463 , 73 L.Ed. 894 (1929), given considerable weight to the established practices of the political branches in their respective areas of expertise.

146

The Government contends’ that longstanding practice supports the contention that international trade agreements such as NAFTA may be validly concluded through the procedure used in this case. This procedure has its roots, according to the Government, in the grants of authority given to the President by Congress in the various trade acts passed early in this century. Such acts included the McKinley Tariff of 1890, authorizing the President to make determinations with regard to tariffs, the Dingley Tariff of 1897,

147

doing the same, and the Reciprocal Trade Act of 1934,

148

granting the President significant authority in the completion of tariff arrangements, including the power to conclude executive agreements.

Beginning in the 1940’s, international agreements negotiated by the President began to be submitted to the entire Congress for majority approval. The Atomic Energy Act of 1946,

149

contained a provision stating that international agreements approved by Congress would supersede inconsistent provisions of the Act. The Arms Control and Disarmament Act of 1961

150

authorized the President to enter into multilateral agreements to be presented to Congress for subsequent approval, as did the Trade Expansion Act of 1962.

151

The Government notes that an impasse often resulted when the President submitted prenegotiated international agreements to Congress for majority approval. Often, Congress would be unwilling to approve international agreements as negotiated and settled upon by the President and the foreign governments involved.

152

As Deputy Special Representative for Trade Negotiations William R. Pearce stated in 1973, “our trading partners are reluctant to negotiate with us until they have some assurance that agreement can be imple-

*1264

merited, and implemented rather promptly.”

153

To resolve the problems caused by the occurrence of and potential for impasse, Congress, in the Trade Act of 1974, created a streamlined legislative mechanism for the approval of international trade agreements. The result was the “fast-track” procedure. In order to avoid conflict, calls for renegotiation, and stalling during the approval phase, the fast track procedure calls for the President to confer with the Congress and the private sector before and during the negotiating process in exchange for a prompt vote on the unamended proposed agreement and accompanying legislation.

154

The process is considered valuable and efficient because:

The consultation and notification requirements provide the opportunity for Congressional views and recommendations with respect to provisions of the proposed agreement and possible changes in U.S. law or administrative practice to be fully taken into account and any implementing problems resolved prior to entry into the agreement and introduction of the implementing bill. At the same time, the process ensures the Executive branch and foreign countries of expeditious action on the final agreement and implementing bill without amendments.

H.R.Rep. No. 103-361(1), at 11, reprinted in 1993 U.S.C.C.A.N. at 2561.

155

Since its creation, the fast track procedure has been used extensively in the negotiation and approval of major international trade agreements.

156

Declaring the process used to approve of NAFTA unconstitutional would, according to the Government, repudiate 24 years worth of international trade agreements and reject a procedure that both the Executive and Legislative branches consider both constitutional and effective.

157

The Government suggests that, in employing the fast track procedure, the President’s authority is “at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”

158

Based on the President’s broad authority, created by virtue of Congress’s delegation of power, the Government argues that declaring the use of the fast track procedure unconstitutional would be to declare that “the Federal Government as an undivided whole lacks power” to execute international agreements such as NAFTA.

159

Such a conclusion would, according to the Government, fly in the face of the Supreme Court’s decisions in

Mis-tretta

and

Youngstown

by failing to give

*1265

proper deference to the decisions of the Executive and Legislative branches.

4. Plaintiffs’ Historical Practice Argument

The plaintiffs maintain that the cases cited by the Government in support of their assertion that historical practice weighs in favor of a finding that this case involves a nonjusticiable political question do not address justiciability, but consider historical precedent in judging the constitutionality of a statutory scheme or in arriving at a proper interpretation of constitutional provisions. Thus, the plaintiffs assert that the Government has failed to establish that historical precedent is relevant to the political question determination.

In further addressing the Government’s historical practice argument, plaintiffs note that there exists general agreement as to the fact that there are some kinds of international agreements that do not require approval pursuant to the strictures of the Treaty Clause. The fact that the Government has provided a list of agreements not passed pursuant to the Treaty Clause is, therefore, unremarkable, according to the plaintiffs.- However, the plaintiffs argue that the exception allowing some international agreements to escape Treaty Clause procedure applies only to “such international agreements as do not constitute treaties in the constitutional sense.”

160

Thus, the

Weinberger

court stated that “[sjubmission of Art. II treaties to the Senate for ratification is ... required by the Constitution.”

161

Plaintiffs argue that although some agreements fall within the exception, this does not suggest that agreements of the nature and scope of NAFTA may be treated as anything other than Article II treaties subject to the requirements set out in the Treaty Clause.

The plaintiffs argue, however, that the Government’s argument that numerous significant international agreements have, in the past 24 years, been passed as Congressional-Executive agreements (agreements negotiated by the executive and approved by a majority of Congress) pursuant to the fast track procedure, is greatly weakened by the fact that each of the agreements cited by the Government received approval of two-thirds of the Senate.

162

Thus, argue plaintiffs, in each of the instances cited by the Government, the question of whether the agreement was properly approved could not have been addressed. Further, in the one instance where there was a question as to whether two-thirds approval would be achieved — the establishment of the World Trade Organization — several Senators voiced the view that the agreement was a treaty and that it could not be adopted without a two-thirds majority in the Senate.

163

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While the Government asserts that the trade agreements it cites are of a scope similar to NAFTA,- the plaintiffs point out that the House Ways and Means Committee described NAFTA as “the most comprehensive trade agreement ever negotiated ...” Further, the plaintiffs note that numerous .agreements that are much less comprehensive in nature than NAFTA have been categorized by Congress and the President as treaties. Specifically, they note agreements regarding investment practices.

164

The plaintiffs argue that the practice of categorizing such agreements as treaties is relevant in that Chapters 11-16 of NAFTA contain provisions pertaining to investment practices that are far more comprehensive than those contained in the other agreements that have been acknowledged to be treaties, and the investment provisions of NAFTA comprise one of the Agreement’s eight parts.

Plaintiffs go on to suggest that to the extent some agreements that should have been approved as treaties have been implemented pursuant to lesser procedural safeguards, this court, like the

Chadha

court, is authorized to put a stop to what the plaintiffs describe as an evasion of constitutional requirements. “That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date.”

165

C. Prudential Considerations Involved in the Political Question Analysis

The Government makes note of several other factors that it considers relevant to the political question issue, including: (1) the necessity of federal uniformity; (2) the potential effect of an adverse judicial decision on the nation’s economy and foreign relations; (3) the reliance of governments and businesses on the positive effects of NAFTA; and (4) the respect courts should pay to coordinate branches of the federal government.

1. The Necessity of Federal Uniformity

According to the Government, this case presents a situation in which it is important for the branches of the federal government to speak with one voice. In

Baker v. Carr,

the Supreme Court recognized the special importance of the United States speaking with one voice with respect to foreign affairs.

166

The Court has

*1267

further observed that “federal uniformity is essential” in the area of foreign commerce,

167

and that “the Federal Government must speak with one voice when regulating commercial relations with foreign governments.”

168

A decision of this court declaring NAFTA unconstitutional would, the Government argues, clearly disturb this principle. The Government suggests that this consideration should be seen as weighing rather heavily in favor of a finding that this case involves a non-justiciable political question.

Without directly rejecting the idea that, in many cases, there exists a legitimate interest in having the federal government speak with one voice, the plaintiffs argue that the theory has no place in the analysis of the treaty-making procedures. To begin with, they note that treaty-making, as outlined in the Constitution, involves two distinct voices — ’that of the Senate and that of the President. The plaintiffs contend further that their suit seeks only to ensure that the federal government allows those full voices that are authorized by the Constitution to be heard with respect to the treaty-making process.

2. The Effect of an Adverse Decision of the Economy and Foreign Relations of the United States

The Government contends that a decision of this court in opposition to the posi

*1268

tions of the Executive and Legislative branches could have a profound negative effect on this nation’s economy and ability to deal with foreign powers. Granting plaintiffs’ requested relief in this case would not only affect the validity of NAFTA, but would potentially undermine every other major international trade agreement made in the past twenty to thirty years.

169

In reporting to Congress on the effects of NAFTA in 1997, the President stated that “[cjooperation between the Administration and the Congress on a bipartisan basis has been critical in our efforts to reduce the deficit, to conclude trade agreements that level the global playing field for America, to secure peace and prosperity along America’s borders, and to help prepare all Americans to benefit from expanded economic opportunities.”

170

The Government argues that the Judiciary should refuse to diverge from the course set by the other two branches of government.

3. Reliance of Governments and Businesses on the Positive Effects of NAFTA

According to the Government, the myriad individual decisions and governmental measures which have been carried out in reliance on NAFTA and the positive effect of such changes,

171

demonstrate “an unusual need for unquestioning adherence to a political decision already made.”

172

NAFTA took effect on January 1, 1994. The Government argues that since that time, the governments, businesses and citizens of the United States, Mexico and Canada have conducted their business affairs in reliance on the lowered tariffs and reduced trade restrictions resulting from NAFTA’s implementation. A decision declaring NAFTA unconstitutional could clearly have a destabilizing effect on governmental relations and business in all three countries and should thus, according to the Government, be avoided.

4. The Respect Due to Coordinate Branches

Finally, the Government argues that a review by the Judiciary of the process by which the President and Congress enter into international agreements would intrude upon the respect due coordinate branches of government. Justice Powell, in concurring with the

Goldwater

decision, concluded that the Court was not in a position to decide the constitutionality of the approval process of an agreement where the political branches acted in cooperation to conclude such an agreement.

173

Similarly, Justice Rehnquist’s

Goldwater

concurrence stated that “[t]he Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach an impasse.”

174

Since no such impasse has been reached with respect to international trade agreements, the Government argues, this court should defer to the decisions of coordinate branches of government. Along those lines, the Government notes that the Senate has not insisted upon its alleged right to approve NAFTA and other trade agreements by a two-thirds margin. Again citing Justice Powell’s

Goldwater

concurrence, the Government contends that when the Senate sees no reason to contest the President’s decision to submit an agreement to the whole Congress, “it is not [the

*1269

Court’s] task to do so.”

175

Thus, the Government argues that, as in

Goldwater,

the Judiciary should refuse to intervene.

The plaintiffs, in responding to the Government’s argument on this issue, simply state that, according to

Powell ,

“Our system of government requires that federal courts on occasion interpret the Constitution in a manner” that conflicts with the actions of the political branches, and that such conflict “cannot justify the courts’ avoiding their constitutional responsibility.”

176

D. Plaintiffs’ General Political Question Argument

The plaintiffs argue that this case does not involve a political question, but a crucial question of constitutional law, contending that since

Marbury v. Madison,

5 U.S. (1 Cranch) 137 ,

2

L.Ed. 60 (1803), it has been recognized that “[i]t is emphatically the province and duty of the judiciary to say what the law is” in the United States.

177

Further, the plaintiffs argue that it is “the province and duty of the judicial department to determine ... whether the powers of any branch of the government, ... have been exercised in conformity to the Constitution; and if they have not to treat their acts as null and void.”

178

Baker

tells us that the purpose of the political question doctrine is to prevent courts from intruding into areas that are constitutionally committed to a coordinate branch of government.

179

The plaintiffs contend that the Government’s entire political question argument is misguided in that, although the doctrine does prevent the courts from intervening in areas where a coordinate branch of government has plenary authority that is not somehow limited by the Constitution, the doctrine does not, under any circumstances, act to bar review of acts by the political branches that effectively nullify constitutional limits on their power.

The plaintiffs note that this case clearly involves questions of whether the Constitution requires treaty ratification to take a certain form and whether an agreement that is alleged to be a treaty was ratified according to constitutional mandates. Thus, this case, according to the plaintiffs involves an issue clearly addressed in the Constitution and clearly requiring constitutional interpretation by the Judiciary. The plaintiffs claim that because the constitutional provision at issue was intentionally crafted to protect minority interests, there exists no reason to expect that the majority of Congress or the President would raise objections to the elimination of such protection. Under this analysis, the fact that the President and Congress have mutually agreed to implement the fast-track procedure and ignore the Treaty Clause does- not legitimize the practice. Rather, it presents an illustration of that which the Framers allegedly meant to avoid — majority control over the creation of treaties. The plaintiffs point out that absent judicial intervention, the one-third of the Senate that the provision was meant to involve will never be able to assert its rights given the majoritarian policy that is currently being employed.

1. The Framers’ Adoption of the Treaty Clause

An examination of the history surrounding the adoption of the Treaty Clause, according to the plaintiffs, reveals that the Framers, in adopting the Clause, were not as concerned with» procedural issues as they were with the allocation of power that the procedure would create. The decision to put the treaty-making power in the hands of the Senate and to require a super majority for approval was, according to the

*1270

plaintiffs, based on states’ rights concerns and cannot, therefore, be waived by the President and Congress in the interests of expediency and majoritarianism. The plaintiffs’ rendition of the delegates’ discussions concerning the treaty-making power during the Constitutional Convention suggests that the decisions to place the power in the hands of the Senate and to require a super majority vote were: (1) based on the Framers’ express concern with the formation of commercial treaties and experiences with regional tensions under the Articles of Confederation; (2) the result of careful consideration; and (3) considered extremely significant by the Framers.

180

The plaintiffs’ discussion of the delegates’ adoption of the Treaty Clause is based primarily, if not completely, on the research contained in an article written in 1979 by Arthur Bestor, a History Professor Emeritus at the University of Washington.

181

According to Bestor, the initial drafting of the Treaty Clause at the Constitutional Convention was undertaken by the Committee of Detail, which was assigned the task of preparing a draft of the Constitution after the Convention had agreed on certain broad principles.

182

The Committee began its work with a memorandum prepared by Edumund Randolph of Virginia, which contained a list of “powers destined for the Senate peculiarly,” two of which were “to make treaties of commerce” and “to make peace.”

183

In the committee’s final draft, the language was broadened to assign to the Senate the power “to make treaties.”

184

The proposed draft, as submitted by the Committee, was objected to by the larger States, as they felt that they “would not have the weight to which they felt entitled when it came to the making ... of commercial treaties.”

185

When the draft was reported to the Convention floor, Gouvern-eur Morris of Pennsylvania immediately proposed an amendment that would give

*1271

the House a role in effecting treaties.

186

The amendment was defeated,

187

but this and other issues concerning the draft Treaty Clause proved so contentious that the entire provision was referred back to the Committee.

188

When the matter returned to the floor — this time after revisions by the Committee on Postponed Parts — the proposed Treaty Clause, while giving the President a role in the treaty-making process, continued to exclude the House from participation.

189

James Wilson of Pennsylvania then proposed, as Morris had before, that the House be included in the treaty-making process, but the proposal was again voted down.

190

Bestor’s rendition of the proceedings leading to the adoption of the Treaty Clause depicts the decision on whether to require a majority or a supermajority for the approval of a treaty as more contentious than the decision to leave the matter solely in the hands of the Senate. However, the majority vs. supermajority debate, according to Bestor, involved sectional biases and interests rather than size-based concerns.

191

As their interests often varied significantly from the more industrialized and more numerous Northern States, Southern States sought to require super-majority approval for the ratification of treaties.

192

Bestor argues that the Framers’ concerns stemmed from one specific incident that occurred just a year before the Constitutional Convention. The incident involved a proposed commercial navigation treaty with Spain, which was viewed as benefitting the more numerous Northeastern States at the expense of the Southern States. As the Articles of Confederation required that any treaty be approved by nine of the thirteen states (more than a two-thirds majority), the Southern States were able to prevent the ratification of the agreement. This incident allegedly revealed the importance of a supermajority requirement to the Southern States, who realized that a majority vote in the Senate could result in a foreign policy skewed in favor of the North.

193

The initial draft of the Treaty Clause, as prepared by the Committee on Detail, did not include a two-thirds requirement for treaty ratification.

194

Wflien the Treaty Clause was referred to the Committee on Postponed Parts, a two-thirds requirement was added.

195

The proposed alteration met considerable resistance, with Wilson objecting to “the power of a minority to control the will of the majority,”

196

and Rufus King arguing that the requirement that all treaties be approved by the President created a “check that did not exist in

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[the Articles of Confederation],” making it less crucial to insist upon the supermajority requirement as a check.

197

Suggestions for revision of the measure involved proposals to return to the simple majority requirement and proposals to require two-thirds of the entire Senate, rather than just those Senators present. In the end, the delegates adopted a provision requiring approval from two-thirds of those Senators present.

198

Thus, the record indicates, according to Bestor, that the Framers carefully considered the decision to require a two-thirds Senate majority for the treaty-making process, and made the decision with the intention of promoting minority interests.

199

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This requirement was seen as especially important in the ratification of commercial agreements.

200

Thus, according to the plaintiffs, the Framers explicitly outlined a specialized procedure limiting the political branches’ admittedly vast power over the making of international agreements that amount to treaties.

201

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2. Judiciary’s Power to Intervene to Rectify the Political Branches’ Failure to Adhere to Constitutionally-Mandated Procedures

The plaintiffs argue that when the political branches of government have failed to adhere to specific constitutional limits on their authority, the courts are empowered to resolve a claim based on that failure. In making this argument, the plaintiffs call attention to the Supreme Court’s decisions regarding a number of constitutional provisions, including the Qualifications Clause,

202

Article I’s outline of the legislative process,

203

and the Appointments Clause.

204

In

Powell ,

as noted

supra,

the House had attempted to “exclude” by majority vote a duly elected representative who satisfied the criteria to serve as a representative as outlined in Article I, § 2. The Constitution, however, only permits the House to “expel” members by a two-thirds vote. The Supreme' Court held that the political question doctrine did not bar review despite the fact that the Constitution is silent on the proper procedure for “exclusion,” and that decision of the matter would intrude into the innermost workings of a coordinate branch. Because the relevant historical materials indicated that the Framers inserted limits on Congress’s ability to expel members for the purpose of preventing it (Congress) from overruling the desires of the electorate, the

Powell

court determined that the Constitution could not be read to “effectively nullify” those limitations by granting Congress unbound and unreviewable discretion to exclude representatives it found objectionable.

205

The Court held that:

[Djetermination of [this case] require[s] no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a “lack of respect due [a] coordinate [branch] of government,” nor does it involve an “initial policy determination of a kind clearly for non-judicial discretion.”

Baker v. Carr,

369 U.S. at 217 , 82 S.Ct. 691 .

395 U.S. at 548 , 89 S.Ct. 1944 . The Court went on to note that:

Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts’ avoiding their constitutional responsibility.

Id. at 548-49 , 89 S.Ct. 1944 . The plaintiffs contend that the Judiciary’s responsibility to intervene in contravention of a practice employed by the political branches of the government is even more acute when, as in both

Powell

and this case, a minority’s interest is at stake.

Chadha

involved the question of whether the Congress could include a legislative veto provision within a statute, thus altering the method by which legislation is to be passed pursuant to Article I. The Court found that the issue in the case was not whether Congress enjoyed plenary authority over matters involving immigration (which it does), but whether “Congress [had] chosen a constitutionally permissible means of implementing that power.”

206

Dismissing the argument that the Judiciary should defer to the political departments on matters of procedure or form,

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the Court stated that “[n]o policy underlying the political question doctrine suggests that Congress or the Executive, or both acting in concert and in compliance with Article I, can decide the constitutionality of [their action]; that is a decision for the courts.”

207

The Constitution’s Appointments Clause appears in the same sentence of Article II, Section 2 as the Treaty Clause. The plaintiffs contend that the Supreme Court’s jurisprudence with respect to the application of the Appointments Clause’s structural restraints lends credence to their contention that this court has the authority and responsibility of addressing whether the structural restraints of the Treaty Clause should be applied in this case. Thé Court has held that the Appointments Clause imposes a “significant structural safeguard,” carefully apportioning the power to appoint United States officers between the Executive and Legislative branches.

208

The Court has concluded that:

“The Appointments Clause prevents Congress from dispensing power too freely; it limits the universe of eligible recipients of the power to appoint. Because it articulates a limiting principle, the Appointments Clause does not always serve the Executive’s interests. For example, the Clause forbids Congress to grant the appointment power to inappropriate members of the Executive Branch. Neither Congress nor the Executive can agree to waive this structural protection.... The structural interests protected by the Appointments Clause are not those of any one branch of government but of the entire Republic.”

Freytag v. Commissioner of Internal Revenue,

501 U.S. 868, 880 , 111 S.Ct. 2631 , 115 L.Ed.2d 764 (1991). The plaintiffs argue that the same reasoning should be applied to this court’s analysis of the political question doctrine with respect to the Treaty Clause.

The plaintiffs contend that the

Powell, Chadha

and

Freytag

decisions weigh heavily in favor of this court deciding this case on the merits rather than dismissing under the rubric of the political question doctrine. These cases involved powers that were committed to the political departments by the Constitution but which were, according to the Supreme Court, subject to review when utilized in a manner inconsistent with the relevant constitutional provisions. The plaintiffs argue that Congress and the President have ignored a Constitutional mandate explicitly circumscribing the parameters within which they can exercise their authority. Use of the fast track procedure, according to the plaintiffs, amounts to little more than an agreement between the President and a majority of Congress to ignore the minority protections built into the Treaty Clause, effectively preventing the Senate minority from ever asserting their right to prevent the approval of an agreement constituting a “treaty.” In responding to the plaintiffs’ argument, the Qovernment simply notes that the Senate has, in other contexts, insisted on its claimed prerogatives under the Treaty Clause without resorting to judicial intervention.

The plaintiffs assert that this court must, in light of the above-cited cases and based on the text and structure of the Constitution as well as materials evidencing the intent of the Framers, accept its responsibility to decide whether NAFTA is á “treaty” within the meaning of the Treaty Clause. They argue that this conclusion is confirmed by numerous cases which have, despite the lack of specific constitutional definition, ruled on the constitutionality of international agreements with respect to the treaty clause. Such cases, according to the plaintiffs, include

Holmes v. Jennison,

39 U.S. (14 Pet.) 540, 569-73 , 10 L.Ed. 579 (1840) (construing the scope

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of the Treaty Clause),

Holden v. Joy,

84 U.S. (17 Wall.) 211, 242-43 , 21 L.Ed. 523 (1872) (same),

Edwards v. Carter,

580 F.2d 1055 (same),

Securities and Exchange Commission v. International Swiss Investments Corp.,

895 F.2d 1272 , 1275 (9th Cir.1990) (holding that an unratified treaty is without force until ratified by two-thirds of the Senate),

In Re Sutherland,

53 F. 551 (D.Or. 1892) (same).

209

E. Third Conclusion of the Court

I conclude that the institutional plaintiffs’ claims are not barred - by the political question doctrine. I conclude that the issues of whether NAFTA and the Implementation Act, considered separately or jointly, constitute a treaty as contemplated by Article II, Section 2 and, if so, whether they were appropriately made and adopted by appropriate alternative means are legal issues subject to judicial review, interpretation and declaration. I conclude that the Constitution does not solely commit these procedural issues to the President and/or Congress.

210

I conclude that there are judicially discoverable and manageable standards with reference

*1277

to these issues. Constitutional interpretation of even vague constitutional provisions is a standard judicial practice. The issues do not involve policy determinations of a non-judicial nature. Respect for coordinate branches is no more an issue than it is in a myriad of other areas of judicial review. I am particularly persuaded by the Powell,

211

Chadha,

212

and Freytag

213

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cases. There is no unusual need for unquestioning adherence to political decisions which arguably violate the Constitution. If courts have the power to determine the constitutionality of the substantive provisions of international agreements, as established by

Reid v. Covert,

I see no reason why courts do not also have both the authority and responsibility to determine whether the procedures used to adopt such agreements conform to Constitutional requirements.

214

There has been no specific announcement by the President or Congress related to the application of the Treaty Clause which might cause embarrassment. I can perceive no prudential considerations which caution against judicial intervention.

It is thus unquestionable to this court that deciding what constitutes a “treaty” subject to the Treaty Clause, although difficult, if not impossible to determine with certainty, is a legal issue, not a political question. I further conclude that if it is decided that such a “treaty” is involved, whether the Treaty Clause is exclusive is also a legal, not a political question. Further, I conclude that the application of the Foreign Commerce Clause and other enumerated power clauses to documents which otherwise constitute “treaties” under the Treaty Clause raises a legal question. All these issues involve constitutional interpretation just as do issues involving the intent and scope of the First, Fourth and Fourteenth Amendments, etc. The difficulty of decision does not change the nature of the issue.

IY. The Constitutionality of NAFTA

As stated above, the Treaty Clause states that the President “shall have the Power, by and with the Advice and Consent' of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” Art II, § 2. The plaintiffs’ ultimate argument in this case is that the Treaty Clause should be read as an exclusive grant of power with respect to those international agreements that may be called “treaties,” and that NAFTA falls within the bounds of the proper definition of the term. The plaintiffs acknowledge that the text of the Constitution fails to establish a test for determining when an international agreement is a “treaty” as opposed to some other type of agreement, and attempt to show that the intentions of the Framers, historical practice, federal court decisions and well-reasoned law review texts all advocate the use of a test that focuses on the importance of an agreement and the degree to which an agreement constrains sovereignty to determine when an agreement must be subjected to the Treaty Clause procedures.

The Government argues that the relevant factors all weigh in favor of a conclusion that the Constitution’s Treaty Clause should not be read as an exclusive grant of power, and that the enumerated powers of the President and Congress in the areas of foreign affairs and commerce are sufficient to establish their authority to conclude international commercial agreements without following the strictures of the Article II treaty-making process. According to the Government, plaintiffs’ arguments attempting to differentiate between treaties and non-treaties are irrelevant, as they ignore the fact that the provisions of NAFTA were enacted as valid domestic legislation via the Implementation Act — an Act that the Government asserts is no different than any other legislation passed by Congress. Given the fact that it is well-settled law that if federal legislation falls within the substantive scope of an enumerated power, it is constitutional despite its potential impact on the states,

215

and the fact that Congress has the power to legis

*1279

late in the areas of tariffs and domestic and foreign commerce, the Government argues that the plaintiffs have no legitimate basis upon which to challenge NAFTA legislation. The Government further asserts that the plaintiffs’ proposed test for differentiating between treaties and non-treaties is the result of a misreading of the historical materials and legal precedents as well as an unjustified adherence to the views of a minority of legal scholars.

The parties’ arguments on the merits of this case suggest that this court’s decision will turn on its resolution of two distinct issues: (1) What is a “treaty” and do NAFTA and its implementing legislation qualify as a “treaty” as contemplated by the Treaty Clause; and, if so, (2) does the Treaty Clause represent the exclusive procedure by which such a “treaty” can be negotiated, approved and ratified? I will attempt to grasp this constitutional mercury.

A. Article II “Treaties”

As noted above, the text of the Treaty Clause does not provide any insight into what factors or characteristics make an international agreement a “treaty in the constitutional sense.” Thus, the Supreme Court has recognized that the Treaty Clause is worded in “general terms, without any description of the objects intended to be embraced by it.”

216

1. Plaintiffs’ Argument

a. Essential Characteristics: Importance and Effect on Sovereignty

In arguing what distinguishes a treaty from other types of international agreements, the plaintiffs cite the Supreme Court’s language in

Holmes v. Jennison,

39 U.S. (14 Pet.) 540, 572 , 10 L.Ed. 579 (1840), where Chief Justice Taney opined that the distinction drawn in the Constitution between treaties and other agreements reflected the Framers’ familiarity with the writings of Emmerich de Vattel.

217

From the Court’s language in

Holmes ,

the plaintiffs conclude that although it is not possible to identify more precisely what the word “treaty” was understood to encompass at the time of the Framers, it is evident that the term referred to an agreement having greater consequences than non-treaty agreements.

The plaintiffs acknowledge that drawing lines between treaties and other kinds of international agreements is often difficult, but, citing Professor Tribe, maintain that “the difficulty of drawing such a line does not mean that the distinction can be discarded.”

218

Thus, argue the plaintiffs, the

*1280

Supreme Court has been willing to draw the line between “inferior” and “principal” officers for purposes of the Appointments Clause and to enforce its interpretation of those terms,

Morrison v. Olson,

487 U.S. 654, at 671 , 108 S.Ct. 2597 ;

Freytag,

501 U.S. 868, at 880 , 111 S.Ct. 2631 , and to develop definitions of the kinds of agreements that are 'subject to the Compact Clause,

U.S. Steel Corp.,

434 U.S. at 463-64 , 98 S.Ct. 799 , despite the fact that the text itself lent little aid in making such determinations.

The plaintiffs argue that the writings of Vattel, and the distinction made in the Compact Clause evidence the fact that the term “treaty” was used by the Framers to refer to agreements of particular importance. Thus, John Sparkman, author of the article

Checks and Balances in American Foreign Policy,

52 Ind. L.J. 433 (1977), refers to “the traditional distinction between the treaty as the proper instrument of a major commitment and the executive agreement as the instrument of a minor one.”

219

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The plaintiffs argue that the Supreme Court’s analysis of the Compact Clause’s application to international agreements made by the states is relevant to the question of what kinds of agreements amount to treaties. They note that the Court’s Compact Clause analysis has traditionally centered upon a given agreement’s impact on sovereignty. Since 1893, the Supreme Court has held that state agreements are subject to the Compact Clause, and therefore to congressional approval, only if they “tend [ ] to increase ... political power in the States, which may encroach upon or interfere with the just supremacy of the United States.”

220

The plaintiffs conclude, based on the Court’s analysis, that the notion of sovereignty was central to the Framers’ conception of how different types of international agreements should be concluded.

221

The Plaintiffs maintain that placing particular emphasis on the effect a given agreement has on sovereignty accords with the Framers’ overriding objective in adopting the supermajority requirement — the protection of state interests from overreaching by the federal government.

222

The recognition that agreements impinging domestic sovereignty must be ratified as treaties was evinced, argue the plaintiffs, during a series of hearings held by the Senate in 1947 regarding the proposed International Trade Organization (“ITO”).

223

The plaintiffs point specifically to the concerns voiced by Senate Finance Committee Chair Eugene M. Millikin who, noting that the ITO might be vested with greater authority than that granted to the United Nations under its Charter, opined that the agreement adopting the ITO appeared to be a treaty.

224

Millikin expressed particular concern with the ITO’s potential ability to interfere with and react to United States domestic policy.

225

He stated that an agreement should be treated as a treaty when its implementation results in “substantial disparagement of our sovereignty.”

226

The plaintiffs cite a number of situations in which legal scholars or Senators have characterized agreements as requiring Article II Treaty Clause procedures as a result of their potential effect on sovereignty,

227

arguing that the most complete

*1282

articulation of this point was provided in the Senate’s deliberations regarding the agreement establishing the WTO. During the hearings, both Professor Tribe and his colleague from the Harvard Law School, Professor Anne-Marie Slaughter, endorsed the view that agreements having a substantial impact on sovereignty must be regarded as treaties.

228

Slaughter claimed that the analysis should focus on “the degree to which an international agreement ... [has] a direct impact on matters normally regulated by state and federal legislative processes.”

229

Tribe has argued that because the implementation of the WTO would subject both federal and state governments to binding arbitration, displacing the states from their normal role in our system of government, because the WTO extended beyond conventional trade matters such as tariffs and customs to include domestic issues like health and safety and environmental concerns, and because the agreement reordered state and federal power, giving the President authority to decide whether state laws should be stricken, that the WTO agreement had to be regarded as a treaty.

230

The plaintiffs note that, in addition to the statements made by Tribe and Slaughter, Senators Pressler, Byrd, Heflin, Holl-ings, Thurmond and Helms made statements highlighting the significance of the WTO Agreement and calling for the agreement to be ratified pursuant to the Treaty Clause.

231

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The plaintiffs thus assert that a treaty is distinguishable from a non-treaty by its relative importance and the degree to which it constrains the sovereignty of federal and state governments in the United States.

b. The Test Applied: NAFTA’s Importance and Effect on ' Sovereignty

The plaintiffs maintain that the same reasons that supported the argument that the WTO is a treaty should be employed to establish that NAFTA is a treaty, noting that NAFTA is “the most comprehensive trade agreement ever negotiated.”

232

The plaintiffs point out that NAFTA consists of twenty-two separate chapters of laws, supplemented by several lengthy annexes, and that the Agreement subjects whole new arenas of economic activity to international trade discipline, greatly increasing the United States’ obligations in several other areas. The plaintiffs argue that NAFTA requires the United States to “ensure that all necessary measures are taken in order to give effect to the provisions of [the] Agreement, by state and provincial governments.”

233

They further contend that NAFTA subjects the laws, regulations and practices of all United States governmental bodies to extensive mandates, including mandates in areas in which the United States has never before allowed such international interference. Thus, argue the plaintiffs, NAFTA is the first international agreement to include protections for trade secrets, the first to provide protections for intellectual property, the first to include extensive trade services regulations, comprehensive health and safety regulations, and regulations concerning the government’s procurement of services, and the first providing all companies from specific foreign countries investing in this country with sweeping protections against governmental action.

234

The plaintiffs emphasize that NAFTA’s provisions reach far beyond conventional trade concerns, restricting the circumstances under which the federal government may establish standards pertaining to health and safety and other matters “that may, directly or indirectly, affect trade,” and making it extremely difficult for state and local as well as the federal government to adopt such standards.

235

Further, Chapters 7 and 9 of NAFTA require governments to take affirmative steps toward the harmonization of standards in a myriad of areas and to pursue equivalence of health and safety and technical standards.

236

NAFTA’s provisions with respect to other areas, such as trade in services, non-discrimination and non-residency rules, and licensing or certification measures for certain services are, according to the plaintiffs, equally far-reaching.

237

The plaintiffs also note that international bodies are given authority by NAFTA to determine, through binding arbitration and other means, when United States domestic

*1284

laws must yield to the Agreement’s provisions.

238

If a decision by the international (Mexico, United States and Canada) arbitration panel that hears a case finds that a local, state or federal law is inconsistent with the United States’ obligations under NAFTA, or impairs benefits that a party reasonably expected to receive under NAFTA, the United States is obligated “wherever possible” to remove the measure or suspend its implementation.

239

Refusal to do so can result in the injured nation’s imposition of trade sanctions on the United States until the situation is resolved.

240

Calling attention to proceedings that are now pending under the Chapter 20 provisions and the United States’ response thereto, the plaintiffs argue that the very threat of sanctions has constrained the freedom of the federal government and interfered significantly with the sovereignty of the United States. Further, the plaintiffs note that investors may utilize .the Chapter 11 mandatory binding arbitration procedures to challenge various federal, state and local laws that allegedly “expropriate” their investments, thus giving them the ability to challenge laws that, while beneficial to the citizens and governments involved, harm the company’s bottom line. Finally, the plaintiffs contend that NAFTA’s Chapter 19 binding arbitration process for resolving countervailing duty and anti-dumping disputes represents an extreme constraint on the ability of the United States to enforce unfair trade laws as it chooses and a “sacrifice of sovereignty which” they contend “certainly [should] have required a treaty to accomplish.”

241

Referring to their account of the scope of NAFTA’s provisions and the extensive enforcemént measures contained within the Agreement, the plaintiffs argue that NAFTA’s impact on sovereignty is uniquely sweeping. They note that it is beyond dispute that a number of federal, state and local laws, including many concerning the areas of environmental protection, consumer protection, insurance regulation, economic development incentives, food, health and safety, and packaging and labeling, are arguably inconsistent with NAFTA and thus subject to challenge and repeal. The fact that many of these laws fall squarely within areas that states have traditionally been left to regulate, argue the plaintiffs, only compounds the magnitude of the infringement on sovereignty.

242

The plaintiffs assert that an examination of NAFTA’s scope and degree of enforceability, in addition to revealing the degree to which the Agreement infringes on the sovereignty of both the federal government and the various state governments, illustrates the fact that the Agreement is, in comparison to other international agreements, much more influential and transfor-mative. The Clinton Administration’s U.S. Trade Representative Barshefsky claims that only five of the trade agreements entered into by the United States in recent years are of truly “historic proportions.”

243

In his testimony before the House Subcommittee on Trade on February 11, 1999, Barshefsky noted that of those five, only

*1285

the WTO Agreement and NAFTA contain enforcement provisions. The plaintiffs argue that NAFTA’s provisions are much more extensive than those found within the WTO Agreement, as NAFTA includes elaborate investor-protection provisions of a type that the United States has previously only entered into pursuant to treaties.

244

Based on the above analysis, plaintiffs contend that NAFTA compromises state and federal sovereignty to an unprecedented degree and should, therefore, have been submitted to the Senate pursuant to the provisions of the Treaty Clause.

245

2. The Governments’ Arguments Regarding the Definition of the Term “Treaty”

In opposing the plaintiffs’ suggested test for differentiating between treaties, and non-treaties, the Government acknowledges that there may be a type of international agreement that could only be put into effect pursuant to the procedures outlined in the Treaty Clause,

246

but claims that such situations arise only when the Constitution fails to provide the President and/or Congress with the authority to negotiate and conclude a given agreement through alternative means.

247

To the extent that it recognizes that some subset of international agreements which must be ratified as Article II treaties does exist, however, the Government argues that it has not been defined by the text of the Constitution, the historical practice of the political branches or in Supreme Court precedent. Because of its claims regarding the vast powers of the President and Congress in the areas of foreign affairs and commerce, the Government’s “alternative means” argument arguably includes any agreement involving commerce, trade, war, peace, property, and almost any other subject imaginable. Thus, the Government’s argument effectively amounts to an “interchangeability” argument, claiming that the President and Congress may utilize congressional-executive agreements in

*1286

place of the Treaty Clause procedure under almost any circumstances. With respect to this case, the Government argues that the constitutional text, historical practice and Supreme Court precedent all clearly point to the conclusion that the negotiation, approval and implementation of NAFTA and its implementing legislation fall within the scope of the powers of the President and the Congress, and that this is certainly not a case where the Treaty Clause process was mandated by the Constitution.

a. Deficiency of Plaintiffs’ Proposed Test

The test suggested by the plaintiffs as the method by which to distinguish those international agreements that “rise to the level of treaties” from those that do not, according to the Government, lacks any basis in the Constitutional text or in controlling legal authority. The plaintiffs’ suggested test places significance upon two primary factors: (1) the number and degree of changes that will be created by the implementation of the agreement; and (2) the degree to which the agreement constrains state or federal sovereignty. This “features” test, as the Government calls it, is purportedly based on: (1) the text of the Treaty Clause; (2) the “undisputed” intent of the Framers; (3) one hundred and fifty years of historical practice; and (4) the analysis provided by law review articles. The Government contends, however, that the plaintiffs’ examination of the text of the Constitution and the intent of the Framers fails to uncover any evidence of a convincing and identifiable test for distinguishing constitutional treaties from non-treaties, that the plaintiffs have misconstrued the extent to which the Framers were concerned with sovereignty, and that the plaintiffs’ rebanee on law review articles to fill in the gaps of their theory evinces the weakness of their proposed test. Further, the Government claims that an analysis of the plaintiffs’ proposed test in light of historical precedent proves the inadequacy of the suggested method of differentiation.

b. . Constitutional Text and Framers’ Intent With Respect to the Term “Treaty”

The plaintiffs’ contention that the constitutional text somehow indicates that treaties and non-treaties are distinguishable on the basis of their relative “importance” is, as noted above, based on the Framers’s alleged familiarity with the writings of Emmerich de Vattel, who they claim differentiated treaties from non-treaties based upon the relative importance of the agreement. As they are unable to locate any other source for the Framers’ ideas about different types of international agreements, the Government argues, the plaintiffs conclude that Vattel’s distinction should be read into the Constitution. The Government argues that the plaintiffs’ reliance on the writings of Vattel is misplaced in that the distinctions made by Vattel were based on whether the agreement was to have long-term effects and the degree of permanence that the agreement carried with it.

248

The Government also notes that

*1287

some scholars analyzing Vattel’s work have concluded that the author considered the terms “convention,” “agreement,” and “arrangement” to represent forms of the general category called “treaties.”

249

Further, the Government notes that even the Supreme Court has acknowledged that a determination of what the Framers truly meant when they used the word “treaty” is difficult in light of the fact that “[whatever distinct meanings the Framers attributed to the terms” treaty, alliance, confederation, agreement and compact in the Constitution, “those meanings were soon lost.”

250

Thus, the Government contends that the plaintiffs’ conclusions about the meaning of the term “treaty,” to the extent that they are purportedly derived from the Framers’ understanding of the works of Vattel, are, at best, based on ambiguous passages from the author’s works and, more likely, based upon a complete misconception of the author’s and the Framers’ beliefs about what is and what is not a “treaty.”

The Government argues that the debates concerning the Constitution’s framing and ratification do not offer support for the plaintiffs’ attempt to' distinguish between those international agreements that impact sovereignty and those that do not. According to the Government, the portion of the plaintiffs’ test that accounts for an agreement’s effect on sovereignty is, in fact, not supported by anything in the historical record. The Government argues, citing an article written by Myres McDougal and Asher Lans, two Yale Law Professors, that “no justification of the two-thirds rule was ever put forth in terms of political principle.”

251

Even if the plaintiffs are correct in asserting that the su-permajority requirement is the result of the Framers’ concerns about conflicts between Southern States and Northern States, the Government argues, such concerns only evidence a desire to protect the States from regionalism, rather than a desire to prevent federal encroachment on state sovereignty. Further, the Government questions whether the Senate was vested with a share of the treaty-making power as a result of its perceived connection with the States or because of other practical concerns that made it the more appropriate body. The Government argues, citing Jay’s language in Federalist 64 and Hamilton’s statements in Federalist No. 75, that the Framers’ choice of the Senate appears to have been based, in large part, on the fact that it was better equipped, due to its small size, to serve in an advisory role and to promote secrecy and efficiency.

*1288

c. Historical Practice Regarding the Definition of the Term “Treaty”

The Government also argues that the plaintiffs’ proposed test is inconsistent with historical practice, noting that a number of “important” international agreements have been concluded through procedures other than those outlined in the Treaty Clause.

252

The Government highlights two specific early incidents where such agreements were completed without the advice and consent of the Senate: (1) the 1813 agreement entered into by President Madison concerning the transfer of prisoners of war between the United States and Great Britain via a “lengthy and formal” document; and (2) the Rush-Bagot Agreement of 1817, concluded by President Monroe, purportedly pursuant to his executive authority.

253

The Rush-Bagot agreement, contends the Government, is especially notable for its great importance — -the agreement limited naval armaments on the Great Lakes and is considered a precursor of the unarmed border with Canada — and for the fact that, although President Monroe eventually had doubts about whether the Constitution vested the Chief Executive with power to conclude such an agreement and did, in fact, end up submitting it to the Senate for ratification, the agreement went into effect nearly a year before the Senate provided its formal two-thirds approval.

254

In any case, the Government argues that these two agreements indicate the fact that the Framers and Ratifiers of the Constitution did not intend to draw a distinction requiring so-called “important” international agreements to follow Treaty Clause proce

*1289

dures. Rather, the Government argues that the concerns of early Presidents, particularly Monroe, appear to have focused on whether “powers vested ... by the Constitution” rendered the executive branch “competent to enter into” a given agreement.

255

The Government argues that the plaintiffs’ attempts to group the historical exceptions to their test into identifiable groups amounts to nothing more than a recognition that when alternative constitutional powers are concerned, the Supreme Court and the political branches have recognized that there exist alternatives to the Treaty Clause. Thus, just as the President could not function as Commander in Chief without the ability to conclude agreements without reference to the Treaty Clause, the Government argues, Congress cannot properly perform its role as the regulator of foreign commerce if it cannot act in conjunction with the President in the making of international commercial agreements.

d. Supreme Court Precedent

The Supreme Court’s decisions in

Belmont, Pink,

and

Dames & Moore,

according to the Government, clearly refute the validity of the plaintiffs’ proposed test. All three cases involved international agreements of substantial importance and had a substantial effect on federal and state sovereignty, yet were upheld by the Court despite the fact that they were not approved pursuant to the Treaty Clause. Thus, in

Belmont,

the Court upheld the Litvonov Assignment, a sole executive agreement, in the face of contrary state law. In construing the impact of the New York state law that appeared to conflict with the negotiated agreement, the Court held that “no state policy can prevail against the international compact here involved.”

256

Justice Sutherland, writing for the Court, further noted that:

Plainly the external powers of the United States are to be exercised without regard to state laws or policies ... And while this rule in respect of treaties is established by the express language of cl. 2, Art. VI, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several States.

Id. at 331 , 57 S.Ct. 758 . In

Pink,

the Court used similar language in upholding the Litvinov Assignment.

257

The agreement construed by the Court in

Dames & Moore

was, according to the Government, even broader and more pervasive in its impact on federal and state sovereignty than was the Litvinov Assignment. The Government asserts that under the plaintiffs’ test, the agreement construed in that case, the Algiers Accords that ended the hostage crisis in Iran, suspended the claims against Iran and its state enterprises pending in federal and state courts, and transferred those claims to an international claims tribunal, should have been submitted to the Senate as an Article II treaty. The Government argues that the relative importance of the agreement and its effect on sovereignty surely should have resulted in such submission, if the plaintiffs’ test is the correct one. Nonetheless, the Court held that the President had not exceeded his constitutional authority, noting the “longstanding practice of settling such claims by executive agreement without the advice and consent of the Senate,” and finding that the President has “some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate.”

258

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The Government argues that, despite the plaintiffs’ attempt to minimize the importance of these decisions based on the fact that they merely involved the settlement of foreign claims, the agreements involved in

Belmont, Pink

and

Dames & Moore

dealt with extremely important issues and resulted in substantial restraints on federal and state sovereignty. The plaintiffs’ attempts to pass the Court’s decisions off as exceptions to an otherwise universal rule, according to the Government, represents nothing more than an effort to artificially exclude from consideration relevant Supreme Court decisions and should therefore be ignored.

Lacking support from the text, from the language of the Framers, from historical practice and from Supreme Court precedent, the Government argues, the plaintiffs are left to rely primarily on the writings of academics, primarily Professor Tribe, to legitimize their claim that sovereignty considerations are significant in determining when an agreement must be subject to the Article II procedures. The Government notes that Tribe has not only admitted that he is in the minority with respect to his views on the Treaty Clause,

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but has, on occasion, expressed doubt as to whether his view is the correct one.

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In any case, the Government asserts that the views expressed by a scholar in a law review article or in testimony before Congress, without support from other sources, certainly fail to form a firm foundation upon which to base a constitutional analysis.

e. The Government’s Assertions Regarding the Scope and Impact of NAFTA

In addition to arguing that the plaintiffs’ proposed test lacks legitimacy, the Government argues that NAFTA does not represent the deep-seeded incursion on state and local sovereignty that the plaintiffs would have this court believe and that the Agreement may, therefore, fail to amount to a “treaty” even under the plaintiffs’ proposed test. The Government notes that the plaintiffs have not identified a single state or local statute or regulation that has been struck down as a result of NAFTA, nor do they cite a single instance in which either Mexico or Canada has brought a state or local law before a NAFTA dispute settlement panel. Rather, the plaintiffs’ contentions regarding the potential impact of NAFTA on state and local laws are based on predictions made in 1993 that remain unverified, according to the Government, and have been discredited by the passage of time. Further, the plaintiffs have, according to the Government, ignored the fact that all of the changes in federal law that have been brought about by NAFTA are embodied in the Implementation Act, which the Government argues is clearly constitutional.

The Government also contends that the changes in federal law caused by the Implementation Act are far more modest than plaintiffs would have this court believe, commenting that the plaintiffs have

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failed to specifically identify any new federal regulation put in place by the Implementation Act reflecting the sort of radical infringement of federal sovereignty that plaintiffs are . concerned about. For instance, the Government notes that the bi-national panel procedures for reviewing dumping and countervailing duties cited by the plaintiffs as an example of a provision involving a substantial sacrifice of federal sovereignty are not new, but were actually put in place under the United States-Canada Free-Trade Agreement. Similarly, NAFTA’s Chapter 20 dispute settlement provisions are, according to the Government, substantially similar to those contained in the United States-Canada Agreement.

In examining the various NAFTA provisions that they allege create infringements on sovereignty, the plaintiffs, according to the Government, repeatedly exaggerate and mischaracterize the substance of those provisions. Hence, the Government argues that the plaintiffs’ characterization of the Chapter 20 dispute settlement provisions fails to provide an accurate description of the function of those measures. According to the Government, the Chapter 20 procedure, rather than acting as a constraint on federal and state sovereignty, actually protects that sovereignty by restraining the degree to which Canada and Mexico can influence federal, state and local decision-making. Chapter 20 does this, argues the Government, by limiting the circumstances under which Canada and Mexico may seek to challenge those United States laws they view as conflicting with NAFTA.

Further, the Government argues that the Chapter 20 panels have no power to actually overturn United States law. Rather, the panels issue reports that allow the United States to decide what course of. action to take in the event a given law is found to violate NAFTA. Although NAFTA expresses a preference for the alteration of the law in Article 2018(2), calling for a change toward conformity “[w]henever possible,” the Government notes that such language does not mandate a change. Failure to alter a law to conform to NAFTA gives the injured nation the right to unilaterally impose trade sanctions on the United States. The United States is bound by the Agreement not to reciprocate such sanctions. Of course, in the absence of this arrangement, the governments of Canada and Mexico would be free to set tariff levels at whatever point they see fit. The Government argues that by setting strict rules, timelines and procedures for dispute settlement, NAFTA somehow bolsters United States sovereignty.

The Government contends that the plaintiffs have simply failed to accurately describe the workings and effect of some of the provisions they have cited. Thus, while the plaintiffs decry the provisions of Chapter 7 imposing rules designed to prevent governments from adopting protectionist import restrictions on the pretext that they are designed to protect human, plant or animal health, the Government notes that those provisions were included in the Agreement at the insistence of the United States and take full account of United States’ practices in those fields.

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Similarly, although the plaintiffs maintain that Chapters 7 and 9 of NAFTA “hem in” the ability of federal and state regulators to adopt health and safety and environmental standards and to conduct'certain food, health and safety inspections, the Government argues that there is no basis within NAFTA for such assertions and notes the plaintiffs’ failure to identify any incidences of such restrictions on United States regulators or inspectors.

Plaintiffs argue that Article 714’s call on the signee- governments to “pursue equivalence” in their respective health and safety measures “to the greatest extent practicable,” may result in the United States placing authority to enforce federal, state and

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local laws in the hands of another country. Arguing that the Article 712 provision amounts to an aspirational statement rather than a binding commitment, as noted in the Statement of Administrative Action, page 546, the Government concludes that the plaintiffs’ fears lack any grounding in reality. Finally, the Government notes that the plaintiffs’ concerns regarding Article 714’s alleged transfer of United States food safety enforcement to foreign governments is belied by the explicit language of Article 714(2) and by the language of Article 712(2).

The plaintiffs’ descriptions of NAFTA’s provisions are, according to the Government, full of inaccuracies and misconceptions akin to those described above. The plaintiffs’ rendition of NAFTA thus, according to the Government, distorts the degree to which sovereignty is constrained by the Agreement’s provisions. The Government argues that, without the aid of such misleading arguments, the plaintiffs are unable to show that NAFTA imposes the unique and unprecedented restraints on sovereignty that would make it a treaty even under their own analysis. Arguing that plaintiffs’ test lacks any basis in the Constitutional text, the language of the Framers, historical practice or Supreme Court precedent, and that NAFTA may very well not even amount to a treaty under that test, the Government concludes that this cour

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