Appendix — United Steelworkers v. United States
Supreme Court brief2001
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unt,
FILED
01 -05 WN <6 2001
No. SEFIGE OF THE CLERK
IN THE
Supreme Court of the Anited States
UNITED STEELWORKERS OF AMERICA, AFL-CIO, CLC;
LOCAL 12L, UNITED STEELWORKERS OF AMERICA:
and MADE IN THE USA FOUNDATION,
Petitioners,
vi
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
PAUL WHITEHEAD JEREMIAH A. COLLINS
General Counsel (Counsel of Record)
UNITED STEELWORKERS OF ALICE O’ BRIEN
AMERICA LAURENCE GOLD
Five Gateway Center, Suite 807 BREDHOFF & KAISER, P.L.L.C.
Pittsburgh, PA 15222 805 15th Street, N.W., Suite 1000
(412) 562-2400 Washington, DC 20005
(202) 842-2600
CARL B. FRANKEL JOEL D. JOSEPH
622 Gettysburg Street P.O. Box 5402
Pittsburgh, PA 15206 Washington, DC 20016
(301) 263-0652
PT AEN LIN LARNER ON Ce, ERE AT AEE ELEM ES: BES en AR LE MLE A AMLIB AEDES PEE ED RELI ERT
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001
® <>
TABLE OF CONTENTS
. Opinion of the United States Court of Appeals for
the Eleventh Circuit (February 27, 2001) ................
. Memorandum Opinion of the United States
District Court for the Northern District of
Alabama, Middle Division (July 23, 1999)......00000...
. Judgment of the United States Court of Appeals
for the Eleventh Circuit (February 27, 2001)...........
. Dismissal Order of the United States District
Court for the Northern District of Alabama,
Middle Division (May 8, 2001) .............cccsseeeeeeseees
37a
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APPENDIX A
[Filed February 27, 2001]
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 99-13138
MADE IN THE USA FOUNDATION, UNITED STEEL WORKERS OF
AMERICA, LOCAL 12L UNITED STEEL WORKERS, et al.,
- Plaintiffs-Appellants,
v.
UNITED STATES of AMERICA,
Defendant-Appellee.
February 27, 2001, Decided
OPINION
This case presents complex issues of first impression in
this circuit in the realm of constitutional interpretation—
namely, whether certain kinds of international commercial
agreements are “treaties,” as that term is employed in Article
II, Section 2 of the United States Constitution; and if so,
whether the Treaty Clause represents the sole means of
enacting such agreements into law. The appellants, comprised
of national and local labor organizations as well as a
| nonprofit group that promotes the purchase of American-
) made products, urge that the North American Free Trade
Agreement (commonly referred to as “NAFTA”) be declared
unconstitutionally void, as it was never approved by a two-
thirds supermajority of the United States Senate pursuant to
the constitutionally-mandated procedures governing treaty
ratification. The Government, on the other hand, invokes the
2a
political question doctrine and also claims that this court
lacks jurisdiction due to the appellants’ lack of standing. In
addition, the Government argues on the merits that NAFTA’s
enactment did not require Senate ratification as a “treaty.”
The parties’ respective arguments thus require us to engage
constitutional issues of unusual breadth, complexity and
import. i
In a remarkably learned and thorough opinion, the district
court granted the Government’s motion for summary
judgment. Made in the USA Foundation v. United States, 56
F. Supp. 2d 1226 (N.D. Ala. 1999). The court found that
Article III standing requirements had been met for most of the
original appellants’ and that the case did not present a
nonjusticiable political question, thus electing to reach the
merits of the case. Ultimately, however, the court held that
even assuming NAFTA constitutes a full-fledged “treaty,” the
Treaty Clause does not constitute the exclusive means of :
enacting international commercial agreements, given
Congress’s plenary powers to regulate foreign commerce
under Art. I, § 8, and the President’s inherent authority under
Article II to manage our nation’s foreign affairs. Accordingly,
the district court held that NAFTA’s passage in 1993 by
simple majorities of both houses of Congress was
constitutionally sound.
We agree with the district court that the appellants have
standing in this matter, and affirm the principle, as enunciated
by the U.S. Supreme Court, that certain international
' Included in the group of original appellants, in addition to the
organizations mentioned, were a number of individuals whose standing to
bring suit as voters was rejected by the district court. The appellants do
not brief to us this aspect of the decision, relying on their belief that “the
district court’s holding that the organizational appellants have standing
suffices to establish jurisdiction to proceed to the merits.” Appellants’
Opening Brief at 2 n.t. We therefore assume without deciding for
purposes of this appeal that the claims of the individual appellants were j
properly dismissed by the district court. |
ee ea
3a
agreements may well require Senate ratification as treaties
through the constitutionally-mandated procedures of Art. II,
§ 2. See, e.g., Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43,
21 L. Ed. 523 (1872); Missouri v. Holland, 252 U.S. 416,
433, 40 S. Ct. 382, 64 L. Ed. 641 (1920). We nonetheless
decline to reach the merits of this particular case, finding that
with respect to international commercial agreements such as
NAFTA, the question of just what constitutes a “treaty”
requiring Senate ratification presents a nonjusticiable political
question. Accordingly, we dismiss the appeal and remand
with instructions to dismiss the action and vacate the decision
of the district court. See Goldwater v. Carter, 444 U.S. 996,
1005, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1979); United States
v. Munsinewear, Inc., 340 U.S. 36, 39-40, 71 S. Ct. 104, 95
L. Ed. 36 (1950).
I. Introduction and Background
The United States, Mexico and Canada _ entered
negotiations in 1990 to create a “free trade zone” on the
North American continent through the phased elimination or
reduction of both tariff and non-tariff barriers to trade.
Following extensive negotiations, the North American Free
Trade Agreement was completed and signed by the leaders of
the three countries on December 17, 1992. Through the
passage of the NAFTA Implementation Act (“Implementation
Act”) on December 8, 1993,7 Congress approved NAFTA
and provided for a series of domestic laws to effectuate and
enforce NAFTA’s provisions.”
? Pub.L. No. 103-182, 107 Stat. 2057 (1993), codified at 19 U.S.C.
§ § 3301-3473. The Implementation Act was passed by a vote of 234 to
200 in the House, and 61 to 38 in the Senate. See 139 Cong. Rec. H10,048
(daily ed. Nov. 17, 1993); 139 Cong. Rec. $16,712-13 (daily ed. Nov. 20,
1993).
* See 19 U.S.C. §§ 3311 et seq.
4a
Neither NAFTA nor the Implementation Act were
subjected to the ratification procedures outlined in the Treaty
Clause.* Summoning primarily historical arguments, the
appellants contend that this failure to go through the Art. Il,
§ 2 procedures contravenes the original understanding of the
Framers and therefore renders NAFTA and __ the
Implementation Act unconstitutional. In support of their
argument, the appellants marshal a considerable array of
historical evidence. Relying heavily on the research of the
late Arthur Bestor, a Professor of History at the University of
Washington, the appellants claim that records from the
Constitutional Convention evidence a careful and conscious
decision on the part of the Framers to require a two-thirds
Senate majority for approving treaties, with the deliberate
intention of preventing national majorities from binding
minority interests under the Supremacy Clause to
international accords against their wishes.’ Furthermore, the
* Instead, President Clinton conducted the negotiations leading up to
NAFTA under the so-called “fast-track” authority delegated to him by
Congress in the Omnibus Trade and Competitiveness Act of 1988,
codified at 19 U.S.C. §§ 2902-03. Congress then approved NAFTA
without amendment and passed implementing legislation pursuant to these
same provisions, as well as those of the Trade Act of 1974, codified at
19 U.S.C. §§ 2191-94.
> The Government contests this historical account, noting that not all
commentators agree with Bestor’s conclusions regarding the adoption of
the Treaty Clause. Perhaps most prominently, Professors Myres
McDougal and Asher Lans, two of the early advocates of the
congressional-executive agreement as an alternative to the Treaty Clause,
contend that “three salient facts emerge” from what we know of the
Framers’ discussions regarding the constitutional framework for the
governance of foreign affairs: (1) the Framers paid relatively little
attention to the matter; (2) as a general rule, “the delegates . . . sought to
remove the determination of foreign policy at least in the immediate
future as far as possible from popular control”; and (3) the language used
by the Framers “clearly permits utilization of other methods than that
provided in the treaty clause for securing validation of international
agreements . . . .” Myres S. McDougal and Asher Lans, II Treaties and
ee
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appellants point to several early examples in our Nation’s
history (such as the Jay Treaty debate)® when the United
States entered into major commercial agreements with other
countries, each of which was ratified as a treaty and approved
by a two-thirds supermajority of the Senate.’
Based on the near-contemporaneous writings of Emmerich
de Vattel,” the appellants contend that the key distinction in
Congressional-Executive or Presidential Agreements: Interchangeable
Instruments of National Policy, 54 Yale L. J. 534, 536-37 (1945)
(hereinafter “McDougal and Lans II”).
6
See 5 Annals of Cong. 760-62 (1796) (reprinting President
Washington's message denying that the House had any role in deciding
whether to implement treaties approved by the Senate and ratified by the
President). Under James Madison’s leadership, the House responded by
adopting a resolution disclaiming “any agency in making Treaties,” but
also insisting that “when a Treaty stipulates regulations on any of the
subjects submitted by the Constitution to the power of Congress, it must
depend, for its execution, as to such stipulations, on a law or laws to be
passed by Congress.” /d. at 771-72. Implementing legislation for the Jay
Treaty eventually passed in the House by a vote of 57 to 35. /d. at 782-83.
” See Bruce Ackerman and David Golove, /s NAFTA Constitutional?,
108 Harv. L. Rev. 799, 810-12 (1995) (hereinafter “Ackerman and
Golove”); David M. Golove, Treaty-Making and the Nation: The
Historical Foundations of the Nationalist Conception of the Treaty
Power, 98 Mich. L. Rev. 1075, 1157-93 (2000).
* The Supreme Court discussed Vattel’s influence in United States
Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 98 S. Ct. 799, 54 L.
Ed. 2d 682 (1978), with respect to the constitutional definitions of the
terms “treaty,” “alliance,” “compact,” and “agreement”:
Some commentators have theorized that the Framers understood
those terms in relation to the precisely defined categories,
fashionable in the contemporary literature of international law, of
accords between sovereigns. . . . The international jurist most
widely cited in the first 5O years after the Revolution was Emmerich
de Vattel. ...
Vattel differentiated between “treaties,” which were made either
for perpetuity or for a considerable period, and “agreements,
conventions, and pactions,” which “are perfected in their execution
6a
the minds of the Framers in determining whether a given
agreement required ratification as a treaty turned on the
relative importance of the accord; significant agreements
were to be deemed treaties, while less important ones were to
be considered compacts or executive agreements. Thus,
according to the appellants, an accord such as NAFTA, with
its wide-ranging scope and impact—including — the
harmonization of financial, commercial, labor, and
environmental laws and regulations and the establishment of
supranational adjudicatory bodies to settle disputes between
the signatories—surely falls into the class of agreements
which require ratification as a treaty. The appellants’ position
can best be summarized as follows:
Once it is recognized, as it must be, that the Treaty
Clause requires a Senate supermajority for at least some
agreements affecting commerce, then the outcome of
this case is clear. NAFTA is an agreement of
once for all.” E. Vattel, Law of Nations 192 (J. Chitty ed. 1883).
Unlike a “treaty” or “alliance,” an “agreement” or “paction” was
perfected upon execution: “Those compacts, which are
accomplished once for all, and not by successive acts,—are no
sooner executed then they are completed and perfected. If they are
valid, they have in their own nature a perpetual and irrevocable
effect... .” /d. at 208. This distinction between supposedly ongoing
accords, such as military alliances, and instantaneously executed,
though perpetually effective agreements, such as boundary
settlements, may have informed the drafting in Art. I, § 10.
434 U.S. at 462 n.12, 98 S. Ct. 799, 54 L. Ed. 2d 682 (citations omitted).
* The Government disputes this characterization, arguing that the
distinctions made by Vattel were based on whether or not the agreement
was to have long-term effects, as well as the degree of permanence that
the agreement carried with it. The Government also notes that 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.” See, e.g., David
M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. Rev. 1791, 1910
n.361 (1998).
Ta
extraordinary scope and impact. It has _ profound
ramifications not only for regional economic interests
but for the ability of state and local governments, as well
as the federal government, to enforce their laws and
regulations. And it binds the three signatories to the
economic equivalence of a military alliance. Whether
wise Or unwise, such steps cannot, under our
Constitution, be taken without the concurrence of two-
thirds of the Senate.
Appellants’ Opening Brief at 21. Congressional adoption of
NAFTA in 1995 via simple majorities in both Houses,
pursuant to the procedures reserved for ordinary legislation,
contravened this important, built-in constitutional protection
for minority interests.
Remarkably, although perhaps not altogether surprisingly,
the United States Supreme Court has never in our nation’s
history seen fit to address the question of what exactly
constitutes and distinguishes “treaties,” as that term is used in
Art. II, § 2, from “alliances,” “confederations,” “compacts,”
or “agreements,” as those terms are employed in Art. I,
§ 10.'° Accordingly, the Court has never decided what sorts
of international agreements, if any, might require Senate
ratification pursuant to the procedures outlined in Art. II, § 2.
'° Significantly, the Supreme Court has acknowledged that a
determination of what the Framers actually 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.” United States Steel, 434 U.S. at 463, 98 S. Ct.
799, 54 L. Ed. 2d 682. See also Laurence H. Tribe, Taking Text and
Structure Seriously; Reflections on Free-Form Method in Constitutional
Interpretation, 108 Harv. L. Rev. 1221 (1995) (hereinafter “Tribe”)
(“What the Founders saw as the precise definitions of treaties, alliances,
confederations, agreements, and compacts is largely lost to us now.
Consequently, line-drawing in this area is especially complex.’’) (footnote
omitted).
8a
Indeed, as will be discussed below, the only extended
pronouncement of the Court’s Treaty Clause jurisprudence
can be found in Goldwater v. Carter—a case in which the
Court effectively refused to require President Carter to submit
the abrogation of a mutual defense treaty with Taiwan for
Senate ratification, but failed to garner a majority of the Court
behind a single rationale.'' In light of the Constitution’s
silence on the meaning of the word “treaty,” as well as the
relative dearth of Supreme Court jurisprudence in this area,
the question of NAFTA’s constitutionality has generated
significant debate amongst prominent legal scholars. “
'' We note in this regard that although the Cases-and-Controversies
Clause of Art. III, § 2, states that “the judicial power shall extend to all
cases . . . arising under this Constitution, the laws of the United States,
and treaties made, or which shall be made, under their authority . . . ,” this
passage does not speak to whether the court’s jurisdiction extends to
challenges to the treaty-making procedures employed by Congress and the
President. Nor does this passage preclude the Government’s argument that
the appellants lack standing or that this case presents a nonjusticiable
political question.
'2 See, e.g., Ackerman and Golove, supra; Tribe, supra. Prior to the
debate over NAFTA, the constitutional status of congressional-executive
agreements was already the subject of considerable commentary by a
number of legal scholars. See, e.g., Louis Henkin, Foreign Affairs and the
Constitution 175-76 (1975) (“The constitutionality of the Congressional-
Executive agreement is established, and is used regularly at least for trade
and postal agreements.”); Harold Hongju Koh, Congressional Controls on
Presidential Trade Policymaking After “I.N.S. v. Chadha”, 18 N.Y.U. J.
Int’l L. 1191, 1195 n.13 (1986) (“Treaties and congressional-executive
agreements are now generally treated as interchangeable instruments of
U.S. foreign policy.”); John H. Jackson, The General Agreement on
Tariffs and Trade in United States Domestic Law, 66 Mich. L. Rev. 250,
253 (1967) (“It is generally settled that under our Constitution
international ‘treaty’ obligations can be established ... by an executive
agreement of the President, acting under authority delegated by an act of
Congress . . . .”); McDougal and Lans I, at 187 (“Practice under the
Constitution . . . has confirmed beyond doubt . . . that the treaty-making
power is no barrier to Congressional authorization or sanction of
9a
We begin, as we must, with the Government’s challenges
to this court’s jurisdiction. Assuming that Article III
requirements have been met, we would have jurisdiction over
this appeal pursuant to 28 U.S.C. § 1291. We review a grant
of summary judgment de novo. Real Estate Fin. v.
Resolution Trust Corp., 950 F.2d 1540, 1543 (11th Cir. 1992)
(per curiam).
Il. Standing
Article III's standing requirements are rooted in one of the
hallmarks of our nation’s system of governance: the
constitutional separation of powers. “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.” Raines v. Byrd,
521 U.S. 811, 818, 117 S. Ct. 2312, 2317, 138 L. Ed. 2d 849
(1997) (quoting Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26, 37, 96 S. Ct. 1917, 48 L. Ed. 2d
450 (1976)). As the Court stated in Allen v. Wright, 468 U.S.
737, 750, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984), “the case
Or controversy requirement defines with respect to the
agreements.”). See also Restatement (Third) of the Foreign Relations Law
of the United States § 303 note 8 (1986) (“Congressional-Executive
agreements have in fact been made on a wide variety of subjects, and no
such agreement has ever been effectively challenged as improperly
concluded.”’).
Not all commentators have agreed with the Government’s position. See
Tribe, supra, at 1221 (concluding that the judiciary has the authority to
decide that the,political branches have violated constitutionally-mandated
procedures with respect to certain international agreements, and arguing
that “the American people .. . are . . . entitled to the safeguards provided
by the Senate supermajority requirement of the Treaty Clause”); Edwin
Borchard, Shall the Executive Agreement Replace the Treaty?, 53 Yale
L..J. 664 (1944); Edwin Borchard, Treaties and Executive Agreements—A
Reply, 54 Yale LJ. 616 (1945) (offering a direct response to the
arguments presented by McDougal and Lans).
10a
Judicial Branch the idea of separation of powers on which the
Federal Government is founded.”
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,
112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992), the Court defined
standing analysis as involving the assessment of three
separate but interrelated criteria:
First, the appellant 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
traceable to the challenged action of the defendant, and
not... the 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.”
The district court found—and the government does not really
contest—that the appellants’ pleadings meet the injury-in-fact
and causation requirements.'? Instead, the Government
- Significantly, the Government’s challenge to the appellants’ standing
was raised at the pleading stage, in the context of a motion to dismiss. As
the Court stated in Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 45
L. Ed. 2d 343 (1975), “For purposes of ruling on a motion to dismiss for
want of standing, both the trial and reviewing courts must accept as true
all material allegations of the complaint, and must construe the complaint
in favor of the complaining party.” Given the appellants’ plausible
allegations that their injuries have been caused at least in part by changed
trade and investment patterns generated by NAFTA, we therefore may not
disturb the district court’s holding “unless it appears beyond doubt that the
appellants can prove no set of facts in support of their claim which would
entitle them to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99,
2 L. Ed. 2d 80 (1957); see also Smith v. Meese, 821 F.2d 1484, 1495-96
(11th Cir. 1987) (applying the Conley standard). To be sure, “an asserted
right to have the Government act in accordance with law is not sufficient,
standing alone, to confer jurisdiction on a federal court.”-Whitmore v.
Arkansas, 405 U.S. 149, 160, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990).
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principally argues that the appellants’ claims fail to
demonstrate that their alleged injuries are redressable by this
court. Stated otherwise, the Government contends that the
relief sought by the appellants is so attenuated from the
injuries they have alleged as to constitute mere speculation.
Specifically, the appellants requested declaratory, mandatory
and injunctive relief in the form of two orders from the
district court: first, a declaration that NAFTA had not been
approved in a constitutional manner and therefore is “null,
void and of no effect”; and second, an order directing the
President to notify the governments of Mexico and Canada
that the United States would be terminating its participation
in NAFTA within thirty days. According to the Government,
even if granted, such relief would not be likely to redress the
appellants’ alleged injuries, because it rests upon the
speculative assumption that Mexico or Canada would
subsequently change their trade policies or that U.S.
companies would be induced to return to (or remain in) the
United States.
However, the appellants have amassed considerable
evidence, much of it from government sources, from which
we may infer that U.S. reimposition of tariff and non-tariff
barriers to trade is by itself likely to result in somewhat
reduced competition from foreign imports, thereby generating
more demand for domestic production—and therefore more
jobs, higher wages, and increased bargaining power—in the
industries represented by the appellant labor organizations. '*
Nonetheless, for purposes of this appeal, we must presume that the
appellants’ general allegations of past and ongoing injury due to
NAFTA’s enactment——in the form, inter alia, of lost jobs, reduced wages
and bargaining power, as well as diminished capacity to buy American-
made products—satisfy the “relatively modest requirements that apply at
this stage of the litigation.” Bennett v. Spear, 520 U.S. 154, 171, 137 L.
Ed. 2d 281, 117 S. Ct. 1154 (1997).
'* See, e.g., President Clinton, Study on the Operation and Effect of the
North American Free Trade Agreement 19, 21-22 (1997) (providing a
12a
Furthermore, irrespective of the broader economic wisdom of
such measures, a return to the pre-NAFTA regime would
likely result in the greater availability of U.S.-made products
for purchase by U.S. consumers, at least in the markets
benefiting from renewed trade protection." We therefore find
that by virtue of NAFTA’s effect on domestic law alone,
relief in this case does not largely “depend on the unfettered
choices made by independent actors not before the courts.”
ASARCO Inc. v. Kadish, 490 U.S. 605, 615, 109 S. Ct. 2037,
2044, 104 L. Ed. 2d 696 (1989).
The Government contends that three cases from the D.C.
Circuit support its position: Talenti v. Clinton, 322 U.S. App.
D.C. 175, 102 F.3d 573 (D.C. Cir. 1996),'® Dellums y. U.S.
sectoral analysis of NAFTA’s effects and acknowledging that whiie
studies on the net employment effects of NAFTA are inconclusive,
“clearly, some imports may have a job-displacement effect,” and
thousands of workers have applied for the NAFTA Transitional
Adjustment Assistance program); Statement of Administrative Action,
H.R. Doc. No. 103-159, Vol. I at 969-70, 978 (1993) (recognizing that “as
a result of the NAFTA, some workers may lose their jobs permanently”);
United States Int’! Trade Comm’n, The Year in Trade: Operation of the
Trade Agreements Program During 1998 at 33-34 (May 1999)
(discussing the growth in the U.S. trade deficit as a result of NAFTA);
United States Int’! Trade Comm’n, /nvestigationNo. 332-381: The Impact
of the North American Free Trade Agreement on the U.S. Economy and
Industries: A Three-Year Review 7-8 (July 1997) (stating that “7
industries showed employment effects that are adversely sensitive to
lower prices for imports from Mexico,” and noting specifically that
NAFTA has probably led to reduced domestic production and
manufacturing job losses in the apparel, textiles, and women’s footwear
industries).
' See id.
'© In Talenti, a naturalized American citizen of Italian descent whose
property had allegedly been expropriated by the Italian government
sought to compel the President, the Secretary of State, and the Acting
Director of the International Cooperation Agency to withhold federal aid
to Italy under the Hickenlooper Amendment to the Foreign Assistance
Act. The D.C. Circuit denied the claim on the grounds that Talenti relied
Ri) BA se PN ad ST 8 ar DONA AT a
13a
Nuclear Regulatory Comm'n, 274 U.S. App. D.C. 279, 863
F.2d 968 (D.C. Cir. 1988),'’ and Greater Tampa Chamber of
Commerce v. Goldschmidt, 200 U.S. App. D.C. 205, 627 F.2d
258 (D.C. Cir. 1980).'* We find these cases, however, to be
on a series of highly dubious contingencies, including the unlikely
prospect that the President would decline to exercise his statutory
authority to waive the withholding of aid to a NATO ally “in the national
interest.” Talenti, 102 F.3d at 577. It is clear that Talenti involved a
sequence of events so remote as to defy common sense, not to mention
legal requirements. By contrast, in this case, it is evident that even apart
from any reactions on the part of the Mexican and Canadian governments,
changes in domestic laws resulting from NAFTA’s invalidation are
substantially likely to ameliorate some, if not all, of the appellants’
injuries.
" In Dellums, the D.C. Circuit rejected the claim of 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 even if the
Commission were to ban the importation of South African uranium into
the United States and the appellant could show that such a ban would
benefit the domestic uranium mining industry as a whole, such a showing
would still fall short of demonstrating that he personally would benefit
from this result. Dellums, 863 F.2d at 974. Accordingly, the court held
that the appellant lacked standing. Here, by contrast, not only are
individual members likely to benefit, but the institutional appellants are
likely to benefit as organizations from the restoration of the pre-NAFTA
trade and investment regime.
18
In Goldschmidt, the appellants challenged the validity of an
executive agreement reguiating 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. The
D.C. Circuit found that even if it did declare the agreement invalid, the
appellants had failed to establish that (1) the Senate would not ratify the
agreement anyway, or (2) the United Kingdom would react by changing
its position to one more favorable to the appellants’ interests, and that
therefore the remedy was not substantially likely to redress the appellants’
injuries. Significantly, the Goldschmidt appellants themselves acknowl-
edged that the United Kingdom would probably not agree to any
modification of the flight limits that had been agreed to in the executive
14a
readily distinguishable. Unlike these cases, here there exists a
clearly established record of pre- and post-NAFTA trade and
investment activity on the part of the United States, Mexico
and Canada, which also bears on their probable behavior in
the event of a U.S. withdrawal from NAFTA."” We therefore
reject the Government’s version of the likely Canadian and
Mexican reaction to a U.S. withdrawal as being far more
unfounded and speculative than the appellants’ predictions.
As the Supreme Court stated in Duke Power Co. v. Carolina
Environmental Study Group, 438 U.S. 59, 78, 98 S. Ct. 2620,
57 L. Ed. 2d 595 (1978), “Nothing in our prior cases requires
a party seeking to invoke federal jurisdiction to negate .. .
speculative and hypothetical possibilities . . . in order to
demonstrate the likely effectiveness of judicial relief.”
Perhaps most importantly, implicit in the Government’s
argument is the core contention that this court lacks the
requisite authority to order the President to notify Mexico and
Canada of this nation’s withdrawal from NAFTA.”’
agreement in question. Goldschmidt, 627 F.2d at 263. By contrast, relief
for the appellants in this case does not depend on the actions of a single
governmental actor. In some respects, then, the fact that myriad actors
(both public and private) are likely to be affected by the withdrawal of the
United States from NAFTA and to respond to the resulting changes in
economic incentives militates strongly in favor of the conclusion that on
balance, at least some of the injuries suffered by the organizations who
brought suit in this case are likely to be redressed by the relief sought.
'? See sources cited at n.14, supra. Indeed, it is precisely those parties
involved in NAFTA’s approval and implementation who have claimed
that the significant changes in our nation’s economic relations with
Mexico and Canada would not have come about but for its passage.
*° Although the Government does not raise this issue, we note that
sovereign immunity does not act as a bar to our exercising jurisdiction
over this case. To be sure, the statute most often cited as the source of the
federal government’s waiver of sovereign immunity in cases not involving
money damages—the Administrative Procedure Act (“APA”), 5 U.S.C.
§ § 701 et seg.—cannot serve that purpose here, given that only the
President may terminate our country’s participation in NAFTA. As a
lSa
According to this view, the President, in signing NAFTA,
caused the agreement to become binding on the United States
under international law, and only he has the authority to
abrogate such an international obligation.” Hence, absent
judicial authority to compel the President to withdraw from
NAFTA, it is unlikely that the appellants’ injuries would be
redressed by a favorable ruling from this court. We reject this
argument for standing purposes, however, relying chiefly on
the reasoning employed in the plurality portion of the Court’s
opinion in Franklin v. Massachusetts, 505 U.S. 788, 802-03,
112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992), and applied most
recently by the D.C. Circuit in Swan v. Clinton, 321 U.S.
App. D.C. 359, 100 F.3d 973, 976-77 (D.C. Cir. 1996).
Franklin involved a challenge to the methodology by
which overseas federal employees were allocated to different
majority of the Court found in Franklin v. Massachusetts, 505 U.S. 788,
112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992), the President is not an
“agency” within the meaning of the APA, and his actions are therefore not
subject to review under the statute. /d. at 800-01, 112 S. Ct. 2767.
However, “the President’s actions may still be reviewed for
constitutionality,” id. at 801 (citations omitted); furthermore, we note that
the so-called Larson-Dugan exception permits suits to go forward alleging
that a government’s official’s actions were unconstitutional or beyond
statutory authority, on the grounds that such actions “are considered
individual and not sovereign actions.” Larson v. Domestic & Foreign
. Comm. Corp., 337 U.S. 682, 689, 69 S. Ct. 1457, 1461, 93 L. Ed. 1628
(1949); see also Dugan v. Rank, 372 U.S. 609, 621-23, 83 S. Ct. 999,
1006-08, 10 L. Ed. 2d 15 (1963). Thus, like the district court, we are
satisfied that the appellants are not barred by sovereign immunity from
pursuing their claims. See also Swan v. Clintof, 321 U.S. App. D.C. 359,
100 F.3d 973, 981 (D.C. Cir. 1996).
21 See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319,
57 S. Ct. 216, 81 L. Ed. 255 (1936) (“The President alone has the power
to speak or listen as a representative of the Nation. He makes treaties with
the advice and consent of the Senate; but he alone negotiates.’’);
Restatement (Third) § 339(c) (stating that only the President has the
authority and discretion to bind the United States under international law).
16a
states in the 1990 census, which in turn affected how seats in
the House of Representatives would be reapportioned.”* The
appellants in Franklin sued both the Secretary of Commerce
and the President under the APA, seeking injunctive and
declaratory relief for what they claimed was an “arbitrary and
capricious” decision to allocate overseas military personnel to
individual states based on the “home of record” designated in
their personnel files. This policy change resulted in the loss of
one House seat from the state of Massachusetts.
A majority of the Franklin Court first held that the
President is not an “agency” within the meaning of the APA,
and that his actions are therefore not subject to judicial review
under the APA’s provisions. 505 U.S. at 800-01, 112 S. Ct.
2767. More importantly for our purposes, in a part of the
Court’s opinion joined only by four Justices, the Franklin
Court addressed the “thorny standing question of whether the
injury is redressable by the relief sought.” /d. at 802, 112 S.
Ct. 2767. After noting the difficult separation-of-powers
issues raised by any judicial order purporting to direct
injunctive relief against the President himself, the Franklin
plurality concluded that “for purposes of establishing-
standing, however, we need not decide whether injunctive
relief against the President was appropriate, because we
conclude that the injury alleged is likely to be redressed by
declaratory relief against the Secretary alone.” /d. at 803, 112
S. Ct. 2767. Moreover, “we may assume it is substantially
likely that the President and other executive and
congressional officials would abide by an authoritative
interpretation of the census statute and _ constitutional
*? Under the relevant statute, the Secretary of Commerce is required to
perform the census and report the data to the president, who in turn is
required within nine months to transmit a statement to Congress
indicating the number of Representatives to which each state is entitled
based on the census data.
17a
provision by the District Court, even though they would not
be directly bound by such a determination.” /d.”°
Although a majority of the Court failed to sign on to this
portion of the Franklin opinion, we note that the D.C. Circuit
drew heavily from this approach in Swan. There, a former
member of the Board of the National Credit Union
Administration (“NCUA”) sued President Clinton and other
Executive Branch officials, seeking to have his removal from
the NCUA Board declared unlawful. While noting that “in
most cases, any conflict between the desire to avoid
confronting the elected head of a coequal branch of
government and to ensure the rule of law can be successfully
bypassed, because the injury at issue can be rectified by
injunctive relief against subordinate officials,” the Swan court
remarked that this may “represent one of those rare instances
where .. . only injunctive relief against the President himself
will redress Swan’s injury, because only the President has the
power to remove or reinstate NCUA Board members.”
100 F.3d at 976-78. The court nonetheless concluded that it
** Citing Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501, 18 L. Ed.
437 (1866), the Franklin plurality expressly noted that “we have left open
the question whether the President might be subject to a judicial
injunction requiring the performance of a purely ‘ministerial’ duty.”
Franklin, 505 U.S. at 802, 112 S. Ct. 2767, 120 L. Ed. 2d 636. However,
in signing NAFTA, the President arguably created a binding international
obligation, such that even if this court were to declare NAFTA
unconstitutional for purposes of domestic law, these international
: obligations would remain. See Restatement (Third) §§ 302-303; Vienna
Convention on the Law of Treaties, arts. 26 and 46; Pigeon River
Improvement, Slide and Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138,
160, 54 S. Ct. 361, 78 L. Ed. 695 (1934) (acknowledging that although a
subsequent act of Congress that conflicted with a provision in a treaty
“would control in our courts as the later expression of our domestic law
. . . the international obligation would remain unaffected”). We therefore
agree with the Government that a decision involving the nation’s
withdrawal from an international obligation clearly entails a large measure
of discretion and therefore cannot be considered purely ministerial.
18a
could order NCUA staff members to treat Swan as a “de
facto” Board member and that this partial remedy would be
sufficient for redressability, in spite of the fact that “the
President has the power, if he so chose, to undercut this
relief.” Jd. at 980-81. In so holding, the court “recognized 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 constitutioiial relationship
between the judiciary and the executive branch.” /d.
We find this reasoning to be persuasive. To be sure, the
line of cases cited in Swan, including Franklin and
Mississippi v. Johnson, casts serious doubt as to whether
courts have the power to direct or enjoin the President in the
performance of his official duties.’ | Nonetheless, the
Government simply cannot deny the fact that there are
numerous subordinate executive officials engaged in the
continued operation and enforcement of NAFTA’s
provisions.” Hence, we believe that even short of directly
4 We are well aware of the Franklin Court’s declaration that a judicial
“grant of injunctive relief against the President himself is extraordinary,”
505 U.S. at 802, 112 S. Ct. 2767 and that “in general this court has no
jurisdiction of a bill to enjoin the President in the performance of his
official duties.” /d. at 803, 112 S. Ct. 2767 (quoting Mississippi v.
Johnson, 71 U.S. at 501). Although only a plurality of four Justices joined
this part of the Court’s opinion, it is clear from Justice Scalia’s
concurrence that he would agree with this particular proposition. See
Franklin, 505 U.S. at 829, 112 S. Ct. 2767 (Scalia, J., concurring)
(“Unless the other branches are to be entirely subordinated to the
Judiciary, we cannot direct the President to take a specified executive act
or the Congress to perform particular legislative duties.”’).
5 As the district court noted, the appellants’ complaint failed to
identify subordinate officials who could be enjoined, as well as specific
provisions of the Implementation Act or regulations that such officials
should cease to implement in order to redress their injuries. However, the
lack of specificity in the appellants’ request for relief does not preclude a
finding of redressability. The Supreme Court has held that a court has
a 1
i
19a
ordering the President to terminate our nation’s participation
in NAFTA, a judicial order instructing subordinate executive
officials to cease their compliance with its provisions would
suffice for standing purposes.
In sum, we conclude that the appellants have sufficiently
alleged injuries that are fairly traceable to NAFTA, and that
there is a substantial likelihood that their injuries would be
redressed by a favorable decision from this court. Despite
being unable to predict with certainty what all of the
ramifications of an order declaring NAFTA unconstitutional
might be, we agree with the district court that while “some
previously accrued injuries may not be redressable . . . that is
not to say that future injuries may not be avoided,” and that
this is enough to establish that “it is substantially likely that at
least some of the institutional plaintiffs’ alleged injuries will
be redressed.” 56 F. Supp. 2d at 1253-54.”°
power under the All Writs Act, 28 U.S.C. § 1651 (a), to issue commands
that apply to “persons who, though not parties to the original action or
engaged in wrongdoing, are in a position to frustrate the implementation
of a court order or the proper administration of justice.” United States v.
New York Tel. Co., 434 U.S. 159, 172-74, 98 S. Ct. 364, 54 L. Ed. 2d 376
(1977); see also Swan, 100 F.3d at 979-80.
*° The Government also contends that the appellants’ claims are not
redressable because even if they did obtain a judgment declaring NAFTA
itself to be unconstitutional, such a ruling would have no effect on the
validity of the Implementation Act, which was passed by Congress as
ordinary legislation. We reject this artful distinction as a red herring. As
the district court noted, “It is obvious that the Agreement and the
Implementation Act were designed to be and intended to be applied in
tandem.” 56 F. Supp. 2d at 1253. Were this court to declare NAFTA
unconstitutional, its self-executing provisions would be invalidated.
Further-more, a number of the Implementation Act’s provisions would, by
their own terms, be rendered inoperative—including its threshold
provision, which would cause the remainder of the implementing
legislation to become void under basic principles of severability. See
19 U.S.C. §§ 3311, 3331; Scheinberg v. Smith, 659 F.2d 476, 480-81 (Sth
Cir. 1981).
20a
Ill. Political Question
We now turn to the Government’s second jurisdictional
argument. According to the Government, because the text of
the Constitution fails to define what is meant by a “treaty” or
to dictate the proper procedure for approving international
_commercial agreements, and because the Constitution has
clearly granted the political branches an enormous amount of
authority in the areas of foreign affairs and commerce, the
choice of what procedure to use for a given agreement is
committed to the discretion and expertise of the Legislative
and Executive Branches by virtue of the political question
doctrine. We substantially agree with the Government’s
contentions that this case does not present the type of
question that can be properly addressed by the judiciary,
given our belief that Supreme Court precedent and historical
practice’’ confirm the wisdom of maintaining the practice of
judicial nonintervention into such matters. Drawing heavily
from (then Associate) Justice Rehnquist’s plurality opinion in
7 Although the appellants argue that historical practice is irrelevant to
political question analysis, we believe that history may inform the inquiry
inasmuch as it fleshes out the manner in which the executive and
legislative branches have sought to exercise and accommodate their
textually committed foreign affairs powers over time. Furthermore,
historical practice may illuminate any prudential considerations governing
the advisability or inadvisability of judicial intervention in a given
controversy. See Ackerman and Golove, supra, 108 Harv. L. Rev. at 925
(“From Bretton Woods to the WTO, many of America’s key com-
mitments have taken the form of congressional-executive agreements.”)
Hence, we are mindful of Justice Frankfurter’s wise concurrence in
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96
L. Ed. 1153. (1952): “Deeply imbedded traditional ways of conducting
government cannot supplant the Constitution or legislation, but they give
meaning to the words of text or supply them. It is an inadmissibly narrow
conception of American constitutional law to confine it to words of the
Constitution and to disregard the gloss which life has written upon them.”
Youngstown, 343 U.S. at 610-11, 72 S. Ct. 863, 96 L. Ed. 1153
(Frankfurter, J., concurring).
2la
Goldwater v. Carter, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed.
2d 428 (1979)—as noted earlier, the only extended exposition
of the Supreme Court’s Treaty Clause jurisprudence—we
conclude that this case presents a nonjusticiable political
question.
The political question doctrine emerges out of Article III's
case or controversy requirement and has its roots in
separation of powers concerns. Baker v. Carr, 369 U.S. 186,
210, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). In Baker, the
Supreme Court enumerated six criteria that courts should
consider in determining whether a case is nonjusticiable:
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, 7 L. Ed. 2d 663. Significantly,
any one of the above-listed characteristics may be sufficient
to preclude judicial review. /d.
In Goldwater, Justice Powell’s concurrence suggested that
the Baker analysis could be condensed into a three-question
inquiry:
22a
(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?
(iii) Do prudential considerations counsel against
judicial intervention?
444 US. at 998, 100 S. Ct. at 533. Inasmuch as it
incorporates the Baker criteria without abridging them, we
find Justice Powell’s analytical framework to be useful and
proceed to apply each of these inquiries to the present case.
A. Constitutional Textual Commitment to Coordinate
Branches
The term “treaties” appears four times in the text of the
Constitution. The Treaty Clause, U.S. Const. Art. II, § 2,
cl. 2, states that the President “shall have Power, by and with
the Advice and Consent of the Senate, to make Treaties,
provided two-thirds of the Senators present concur.” The
Compacts Clause, U.S. Const. Art. I, § 10, cl. 3, delineates
the power of the states to deal with foreign powers,
completely prohibiting the states from making “treaties” with
foreign nations, but permitting states to enter into
“agreements or compacts” with forcign powers with the
consent of Congress. The Cases-and-Controversies Clause,
U.S. Const. Art. Ill, § 2, states, in pertinent part, that “the
judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States,
and treaties made... .” And finally, the Supremacy Clause,
U.S. Const. Art. Art. VI, cl. 2, states that “this Constitution,
and the laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be.
made, under the authority of the United States, shall be the
supreme law of the land.” However, as noted earlier, the text
of the Constitution does not (1) define the term “treaties”; (2)
»
SATE NA Haast e TS :
23a
delineate the difference between treaties and other types of
international agreements; (3) mandate that treaties are the
exclusive means by which the federal government may make
agreements with foreign powers; or (4) state that the Treaty
Clause procedure is the only manner in which a treaty may be
enacted. See also Holmes v. Jennison, 39 U.S. (14 Pet.) 540,
569, 10 L. Ed. 579 (1840) (acknowledging that the Treaty
Clause is worded in “general terms, without any description
of the objects intended to be embraced by it’).
The Constitution confers a vast amount of power upon the
political branches of the federal government in the area of
foreign policy—particularly foreign commerce. The breadth
of the President’s inherent powers in foreign affairs arises
from his role as Chief Executive, U.S. Const. Art. II, § 1,
cl. 1, and as Commander in Chief, U.S. Const. Art. II], § 2,
cl. 1. In addition to his power to “make Treaties” with the
advice and consent of two-thirds of the Senators present, the
President’s authority in foreign affairs is further bolstered by
his power to “appoint Ambassadors . . . and Consuls,” U.S.
Const. Art. II, § 2, cl. 2, and “to receive Ambassadors and
other public Ministers,” U.S. Const. Art. II, § 3. Meanwhile,
Congress’s enumerated powers in the realm of external affairs
include its power “to declare war,” U.S. Const., Art. I, § 8,
cl. 11; “to raise and support armies,” U.S. Const., Art. I, § 8,
cl. 12; “to provide and maintain a navy,” U.S. Const., Art. I,
§ 8, cl. 13; and the Senate’s advice-and-consent role in the
treaty-making process. Most significantly, the Constitution
also confers on the entire Congress (and not just the Senate)
authority “to regulate commerce with foreign nations,” U.S.
Const. Art. I, § 8, cl. 3—an express textual commitment that
is directly relevant to international commercial agreements
such as NAFTA.”®
8 Other relevant enumerations of power include Congress’s authority
to levy and collect taxes, duties, imposts and excises, U.S. Const. Art. I,
§ 8, cl. 1.
24a
The Supreme Court has repeatedly 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.” Ludecke v. Watkins, 335
U.S. 160, 173, 68 S. Ct. 1429, 92 L. Ed. 1881 (1948); see also
Department of Navy v. Egan, 484 U.S. 518, 529, 108 S. Ct.
818, 98 L. Ed. 2d 918 (1988) (“recognizing ‘the generally
accepted view that foreign policy is the province and
responsibility of the Executive’ “ (citation omitted)). With
respect to NAFTA, it is especially important to note that the
Supreme Court has long since recognized the power of the
political branches to conclude international “agreements that
do not constitute treaties in the constitutional sense.” Curtiss-
Wright, 299 U.S. at 318, 57 §. Ct. 216, 81 L. Ed. 255.
These cases interpreting the broad textual grants of
authority to the President and Congress in the areas of foreign
affairs leave only a narrowly circumscribed role for the
Judiciary. As the Supreme Court stated in Oetjen v. Central
Leather Co., 246 U.S. 297, 302, 38 S. Ct. 309, 62 L. Ed. 726
(1918), The conduct of the foreign relations of our
government is committed by the Constitution to the executive
and __legislative—‘the _political—departments of the
government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial
inquiry or decision.” See also Crosby v. Nat'l Foreign Trade
Council, 530 U.S. 363, 120 S. Ct. 2288, 2301, 147 L. Ed. 2d
352 (2000) (acknowledging that “the ‘nuances’ of ‘the
foreign policy of the United States . . . are much more the
province of the Executive Branch and Congress than of this
Court’”’) (quoting Container Corp. of America v. Franchise
Tax Bd., 463 U.S. 159, 196, 103 S. Ct. 2933, 77 L. Ed. 2d 545
(1983)). Within this circuit, we have declared that “matters
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
bss ok Bh kd Sagiedli es
25a
interference.’ Aktepe v. United States, 105 F.3d 1400, 1403
(11th Cir. 1997) (quoting Haig v. Agee, 453 U.S. 280, 292,
101 S. Ct. 2766, 69 L. Ed. 2d 640 (1981)).””
To be sure, the Baker Court deemed it “error to suppose
that every case or controversy which touches foreign relations
lies beyond judicial cognizance.” Baker, 369 U.S. at 211, 82
S. Ct. 691, 7 L. Ed. 2d 663. Furthermore, the 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.” Reid v. Covert, 354
U.S. 1, 14, 17, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957). We
therefore have little doubt that courts have the authority—
indeed, the duty—to invalidate international agreements
which violate the express terms of the Constitution.
Nonetheless, with respect to commercial agreements, we find
that the Constitution’s clear assignment of authority to the
political branches of the Government over our nation’s
foreign affairs and commerce counsels against an intrusive
role for this court in overseeing the actions of the President
and Congress in this matter.
The appellants concede, as they must, that the Constitution
affords the political branches substantial authority over
foreign affairs and commerce. The appellants also concede
that the Supreme Court has recognized the constitutional
validity of the longstanding practice of enacting international
agreements which do not amount to full-fledged treaties.”
” See also Antolok v. United States, 277 U.S. App. D.C. 156, 873 F.2d
369 (D.C. Cir. 1989) (“nowhere does the Constitution contemplate the
parti. ipation by the third, non-political branch, that is the Judiciary, in any
fashion in the making of international agreements’’).
* Significantly, the Court has also noted that “Congress has not been
consistent in distinguishing between Art. II treaties and other forms of
26a
See Curtiss-Wright, 299 U.S. at 318, 57 S. Ct. 216, 81 L. Ed.
255; see also Ackerman and Golove, supra, 108 Harv. L.
Rev. at 858; Tribe, supra, at 1269 (“The authority to make
international agreements that do not rise to the level of
treaties has long been recognized as an inherent executive
power of the President.”). Nonetheless, the appellants argue
that what is at issue here 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.” /.N.S. v. Chadha, 462 U.S. 919,
940-41, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983). This
contention leads us to the second Goldwater/Baker inquiry:
whether the resolution of this issue would require this court to
move beyond recognized areas of judicial expertise.
B. Judicial Expertise
Under Baker, the second criterion by which we evaluate
the justiciability of this case is whether or not there exist
judicially manageable standards for determining when a
given international commercial agreement must be approved
pursuant to the Art. II, § 2 procedures. Baker, 369 U.S. at
217, 82 S. Ct. 691, 7 L. Ed. 2d 663. The Government
contends that such a decision would require this court to
consider areas beyond its judicial expertise. We agree.
As noted earlier, in Goldwater v. Carter, members of
Congress challenged the President’s unilateral termination of
a mutual defense treaty with Taiwan (formerly known as the
Republic of China). As in the present case, the crux of the
challenge centered on the allegedly unconstitutional
procedures used to abrogate the treaty, and not on the treaty’s
substantive provisions. A plurality of the Court determined
that the case was nonjusticiable because the text of the
international agreements.” Weinberger v. Rossi, 456 U.S. 25, 30, 102
S. Ct. 1510, 71 L. Ed. 2d-715 (1982).
a Le a aE TT
27a
Constitution failed to provide any guidance on the issue;
joined by three other members of the Court, Justice Rehnquist
noted 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.” Jd. at 1003, 100 S. Ct. 533.°' 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 by
judicial standards. /d. (internal quotations omitted).
While the nature of the issue presented in Goldwater
differs somewhat from the present case, we nonetheless find
the disposition in Goldwater instructive, if not controlling, for
our purposes, in that the Supreme Court declined to act
because the constitutional provision at issue does not provide
an identifiable textual limit on the authority granted by the
Constitution.” Indeed, just as the Treaty Clause fails to
outline the Senate’s role in the abrogation of treaties, we find
that the Treaty Clause also fails to outline the circumstances,
*' Justices Powell and Brennan expressly disagreed with the conclusion
that the case involved a nonjusticiable political question. Goldwater, 444
U.S. at 998, 100 S. Ct. 533. Justices Blackmun and White would have set
the case for oral argument and plenary consideration, deeming it
“indefensible, without further study, to pass on the issue of justiciability
or on the issues of standing or ripeness.” Goldwater, 444 U.S. at 1006,
100 S. Ct. 533. The ninth justice, Justice Marshall, simply concurred in
the result of the case, leaving no indication as to his position on the
political question issue.
* See also Nixon v. United States, 506 U.S. 224, 113 S. Ct. 732, 122 L.
Ed. 2d 1 (1993) (holding that because the Constitution does not place any
limits on the Legislative Branch’s discretion in dictating the procedures
surrounding impeachment proceedings, a former federal judge’s claim
that the rules and procedures used by the Senate in trying impeachments
were improper was not justiciable).
28a
if any, under which its procedures must be adhered to when
approving international commercial agreements.
-Significantly, the appellants themselves fail to offer, either
in their briefs or at argument, a workable definition of what
constitutes a “treaty.” Indeed, the appellants decline to supply
any analytical framework whatsoever by which courts can
distinguish international agreements which require Senate
ratification from those that do not. Rather, the appellants offer
up the nebulous argument that “major and significant”
agreements require Art. II, § 2 ratification, without definin
how courts should go about making such distinctions.”
According to the appellants, it is neither possible nor
necessary to define the meaning of a “treaty” to decide this
case, so long as we find that if any commercial agreement
qualifies as a treaty requiring Senate ratification, NAFTA
surely does. We disagree, given that under Baker and
°° Alternatively, the appellants argued in the district court that treaties
should be distinguished from congressional-executive agreements based
on the ‘concept of “sovereignty.” Put another way, accords which
“significantly” impinge upon national, state and local sovereignty, as
NAFTA purportedly does through the establishment, inter alia, of
supranational adjudicatory bodies, must be considered fo be treaties
requiring Senate ratification. See Tribe, supra, at 1267 (“Whatever the
details, the impact of an agreement on state or national sovereignty must
ultimately determine whether the agreement constitutes a treaty ... .”).
However, we again find such a distinction unhelpful, inasmuch as it
requires courts to delve into areas not normally reserved for judicial
expertise. Indeed, in an increasingly interdependent global economy,
simple bilateral tariff arrangements, which have historically been
approved either as ordinary legislation or delegated to the President’s
discretion, see, e.g., Field v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed.
294 (1892), and are clearly committed by the Constitution to Congress as
one of its enumerated powers, U.S. Const. Art. I, § 8, may be said to
significantly impinge on national sovereignty. Cf. Tribe, supra, at 1266
(conceding that “line-drawing in this area is especially complex,” but
arguing that “the difficulty in drawing such a line does not mean that the
distinction can be discarded”’).
POC wok DIO BA te whe!
29a
Goldwater, the ascertainment of judicially manageable
standards is essential before we may rule that this court even
has jurisdiction to reach the merits of the case.
The appellants contend that this case does not push the
court into areas beyond the limits of judicial expeitise,
inasmuch as it does not involve a ruling en the policy merits
of NAFTA, but only a determination as to the constitu-
tionality of the procedures employed in its enactment.
Accordingly, the appellants cite the Supreme Court’s
decisions in United States v. Munoz-Flores, 495 U.S. 385,
395-96, 110 S. Ct. 1964, 109 L. Ed. 2d 384 (1990), Morrison
v. Olson, 487 U.S. 654, 671, 108 S. Ct. 2597, 101 L. Ed. 2d
569 (1988), Chadha, 462 U.S. at 942, 103 S. Ct. 2764, 77
L. Ed. 2d 317 and Powell v. McCormack, 395 U.S. 486, 548-
49, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), in support of 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). Thus, in the appellants’ view, 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.
It is true that the Supreme Court has rejected arguments of
nonjusticiability with respect to other ambiguous constitu-
tional provisions. In 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, Art. I, § 7, cl. 1, in spite of the lack of guidance
on exactly what types of legislation 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
30a
guidance in the text of the Constitution, such a determination
should be considered a political question.
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 “exces-
sive,” 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, 109 L. Ed. 2d 384.
Similarly, in Morrison v. Olson, despite the fact that “the
line between ‘inferior’ and ‘principal’ officers as used in
Art. II, § 2, cl. 2 of the Constitution is one that is far from
clear, and the Framers provided little guidance as to where it
should be drawn,” the Supreme Court found itself capable of
defining the boundaries of such terms and, consequently, of
interpreting the effect of the provision. Morrison, 487 U.S. at
671, 108 S. Ct. 2597. See also Freytag v. Commissioner of
Internal Revenue, 501 U.S. 868, 880-82, 111 S. Ct. 2631, 115
L. Ed. 2d 764 (1991) (holding that a special trial judge in the
United States Tax Court is an “inferior officer” whose
appointment must conform to the Appointments Clause);
Buckley v. Valeo, 424 U.S. 1, 126, 96 S. Ct. 612, 46 L. Ed. 2d
659 (1976) (“Any appointee exercising significant authority
pursuant to the laws of the United States is an ‘Officer of the
United States,’ and must, therefore, be appointed in the
manner prescribed by § 2, cl. 2, of Article II .”’).
Finally, 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
3la
the concurrence of both houses of Congress. Chadha, 462
U.S. at 981, 103 S. Ct. 2764, 77 L. Ed. 2d 317. The Court
held that the section of the Immigration and Nationality Act
authorizing a one-House veto power over executive
department decisions made pursuant to the Act was
unconstitutional. According to the Court, such an action was
essentially legislative in nature and should, therefore, be
subject to the constitutional requirements of bicameral
passage by majority vote and presentment to the President.
Thus, although the Court recognized Congress’s plenary
power to legislate in the area of immigration, it held that such
power was still subject to limitations included in the text of
the Constitution and to judicial review. See also Clinton v.
City of New York, 524 U.S. 417, 118 S. Ct. 2091, 141 L. Ed.
2d 393 (1998) (striking the Line Item Veto Act as
unconstitutional for violating the Presentment Clause).
We note that none of these cases, however, took place
directly in the context of our nation’s foreign policy, and in
none of them was the constitutional authority of the President
and Congress to manage our external political and economic
relations implicated. In addition to the Constitution’s textual
commitment of such matters to the political branches, we
believe, as discussed further below, that in the area of foreign
relations, prudential considerations militate even more
strongly in favor of judicial noninterference. Furthermore, we
believe that in requesting, as the appellants do, that this court
adjudicate the “significance” of an international commercial
agreement as the critical determinant of whether or not it
constitutes a treaty requiring Senate ratification, we would be
unavoidably thrust into making policy judgments of the sort
unsuited for the judicial branch.
C. Prudential Considerations
Finally, under the Goldwater/Baker criteria, we find that a
number of prudential factors are relevant to the resolution of
this case, including: (1) the necessity of federal uniformity;
33a,
(2) the potential effect of an adverse judicial decision on the
nation’s economy and foreign relations; and (3) the respect
courts should pay to coordinate branches of the federal
government. See Goldwater, 444 U.S. at 998, 100 S. Ct. 533,
62 L. Ed. 2d 428 (Powell, J., concurring); Baker, 369 U.S. at
217, 82 S. Ct. 691, 7 L. Ed. 2d 663.
As the Supreme Court stated in Coleman v. Miller, 307
U.S. 433, 454-55, 59 S. Ct. 972, 83 L. Ed. 1385 (1930), “In
determining whether a question falls within the political
question category, the appropriateness under our system of
government of attributing finality to the action of the political
departments and also the lack of satisfactory criteria for a
judicial determination are dominant considerations.” In
Baker, the Court recognized the special importance of our
nation speaking with one voice in the field of foreign affairs.
Baker, 369 U.S. at 211, 82 S. Ct. 691, 691, 7 L. Ed. 2d 663.
The Court has further observed that “federal uniformity is
essential” in the area of foreign commerce, Japan Line, Ltd.
v. County of Los Angeles, 441 U.S. 434, 448, 99 S. Ct. 1813,
60 L. Ed. 2d 336 (1979), and that “the Federal Government
must speak with one voice when regulating commercial
relations with foreign governments.” Michelin Tire Corp. v.
Commissioner, 423 U.S. 276, 285, 96 S. Ct. 535, 46 L. Ed. 2d
495 (1976).
A judicial declaration invalidating NAFTA at this stage
would clearly risk “the potentiality of embarrassment from
multifarious pronouncements by various departments Gn one
question.” Baker, 369 U.S. at 217, 82 S. Ct. 691691, 7 L. Ed.
2d 663. Although the appellants argue that these considera-
tions are irrelevant to an assessment of the constitutionality of
the treaty-making procedures, we believe in this case that a
challenge to the procedures used to enact NAFTA is
inextricably bound to its substantive provisions, inasmuch as
a judicial declaration invalidating NAFTA would be aimed at
forcing the withdrawal of U.S. participation in the agreement,
22.
55a
with serious repurcussions for our nation’s external relations
with Mexico and Canada.
A judicial order contradicting the actions of the President
and Congress could also have a profoundly negative effect on
this nation’s economy and its ability to deal with other
foreign powers. Significantly, granting the appellants’
requested relief in this case would not only affect the validity
of NAFTA, but would potentially undermine every other
major international commercial agreement made over the past
half-century. See Ackerman and Golove, supra, 108 Harv. L.
Rev. at 925 n.519 (questioning, in light of the ongoing
dispute between the Senate and the President over the
meaning of Article 46 of the as-yet-unratified Vienna
Convention of the Law of Treaties, that “if the Supreme
Court were to strike down the modern constitutional practice,
what would be the status of all the unconstitutional
agreements that have been negotiated over the last half-
century?’’). In reporting to Congress on the effects of NAFTA
in 1997, the President stated that “cooperation 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.” President Clinton, Study
on the Operation and Effect of the North American Free
Trade Agreement, (1997). Furthermore, myriad individual
decisions and governmental measures which have been
carried out in reliance on NAFTA; since it took effect on
January 1, 1994, the governments, private businesses and
citizens of the United States, Mexico and Canada have
conducted their affairs in reliance on the lowered tariffs and
reduced trade and investment restrictions enshrined in the
new regime. While perhaps not individually arising to the
level of “an unusual need for unquestioning adherence to a
political decision already made,” Baker, 369 U.S. at 217, 82
34a
S. Ct. 691, 7 L. Ed. 2d 663, such considerations further
militate in favor of judicial restraint, given that a decision
declaring NAFTA unconstitutional would be likely to have a
destabilizing effect on governmental relations and economic
activity across the North American continent.
Finally, a review by this court of the process by which the
President and Congress enter into international agreements
would run the risk of intruding upon the respect due
coordinate branches of government. As Justice Powell
concluded in his concurrence in Goldwater, “Prudential
considerations persuade me that a dispute between Congress
and the President is not ready for judicial review unless and
until each branch has taken action asserting its constitutional
authority.” Goldwater, 444 U.S. at 996, 100 S. Ct. 533, 62 L.
Ed. 2d 428 (Powell, J., concurring). Similarly, Justice
Rehnquist’s concurrence admonished that “the Judicial
Branch should not decide issues affecting the allocation of
power between the President and Congress until the political
branches reach an impasse.” /d. at 1005 n.1, 100 S. Ct. 533,
62 L. Ed. 2d 428. Since no such impasse has been reached
with respect to NAFTA, we believe this requires greater
deference on the part of the Judiciary to the decisions of
coordinate branches of government.”* In this regard, we note
that no member of the Senate itself has asserted that body’s
sole prerogative to ratify NAFTA (or, for that matter, other
international commercial agreements) by a_ two-thirds
supermajority. In light of the Senate’s apparent acquiescence
in the procedures used to approve NAFTA, we believe this
further counsels against judicial intervention in the present
case.
** Given that three other Justices joined Justice Rehnquist’s concurring
opinion, it is arguable that when added to Justice Powell’s ripeness
rationale, a majority of the Goldwater Court agreed with the proposition
that the case was nonjusticiable absent an impasse between the political
branches.
te Sea atti setenenaiter inns Zit tine’ ess
35a
IV Conclusion
We therefore conclude that this case presents a nonjus-
ticiable political question, thereby depriving the court of
Article III jurisdiction in this matter. Our conclusion is
supported by the Tenth Circuit’s holding in Dole v. Carter,
569 F.2d 1109 (10th Cir.1977), in which the court invoked
the political question doctrine in refusing to decide whether
an agreement by the President to return the Hungarian crown
jewels to that country constituted a treaty requiring Senate
ratification. Dole, 569 F.2d at 1110. In so holding, the court
found that there was “no way for the court to ascertain the
interest of the United States . . . in the controversy.” /d. The
Dole court thus “declined to enter into any controversy
relating to distinctions which may be drawn _ between
executive agreements and treaties.” Given the Tenth Circuit’s
express recognition of the inherent difficulty surrounding the
distinction between executive agreements and treaties and its
refusal to rule on the issue, the Dole decision is directly
analogous to the outcome in this case.
In dismissing this case as a political question, we do not
mean to suggest that the terms of the Treaty Clause
effectively allow the political branches to exercise unfettered
discretion in determining whether to subject a particular
international agreement to the rigors of that Clause’s
procedural requirements; to state as much would be
tantamount to rendering the terms of Art. II, § 2, cl. 2 a dead
letter. Indeed, as the Court stated in Missouri v. Holland, 252
U.S. 416, 433, 40 S. Ct. 382, 64 L. Ed. 641 (1920), “it is
obvious that there may be matters of the sharpest exigency for
the national well being that an act of Congress could not deal
with but that a treaty followed by such an act could.” See
also Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43, 21 L. Ed.
523 (1872) (“Express power is given to the President, by and
with the advice and consent of the Senate, to make treaties,
provided two-thirds of the senators present concur, and
36a
inasmuch as the power is given, in general terms, without any
description of the objects intended to be embraced within its
scope, it must be assumed that the framers of the Constitution
intended that it should extend to all those codjects which in the
intercourse of nations had usually been regarded as the proper
subjects of negotiation and treaty, if not inconsistent with the
nature of our government and the relation between the States
and the United States.”); Weinberger v. Rossi, 456 U.S. 25,
30 n. 7, 102 S. Ct. 1510, 71 L. Ed. 2d 715 (1982) (“Sub-
mission of Art. II treaties to the Senate for ratification is...
required by the Constitution.”). We only conclude that in the
context of international commercial agreements such as
NAFTA—given the added factor of Congress’s constitu-
tionally-enumerated power to regulate commerce with foreign
nations, as well as the lack of judicially manageable standards
to determine when an agreement is significant enough to
qualify as a “treaty”—the issue of what kinds of agreements
require Senate ratification pursuant to the Art. II, §2
procedures presents a nonjusticiable political question.
Accordingly, we DISMISS the appeal and REMAND with
instructions to dismiss the action and vacate the decision of
the district court. See Goldwater, 444 U.S. at 1005, 100 S. Ct.
533, 62 L. Ed. 2d 428; United States v. Munsingwear, Inc.,
340 U.S. 36, 71 S. Ct. 104, 95 L. Ed. 36 (1950).
BETTY B. FLETCHER
Circuit Judge
37a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA,
MIDDLE DIVISION
Case No. CV-98-PT-1794 M
MADE IN THE USA FOUNDATION, UNITED STEEL WORKERS
OF AMERICA, LOCAL 12L UNITED STEEL WORKERS,
FRANK VICKERS, JAMES L. BOWEN, AND DAVID WILSON,
Plaintiffs,
Vv.
UNITED STATES OF AMERICA,
Defendant.
July 23, 1999, Decided
July 23, 1999, Filed; July 23, 1999, Entered
MEMORANDUM OPINION
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.
' THE COURT: “My understanding is that where we stand
procedurally is this . . . all parties agree and recognize that there are no
genuine issues of fact; that the only issues are legal issues . . . all the
38a
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”),” which was
passed by a vote of 234 to 200 in the House’ and 61 to 38 in
the Senate.* The Implementation Act served two purposes, to
“approve” NAFTA and to provide a series of laws to “locally”
enforce NAFTA’s provisions.” 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.
decisions which are due to be made, either issues of standing, issues of
merit, whatever issues will be deemed to be submitted to the court without
further evidentiary hearing or otherwise. Does everybody agree with that?”
PLAINTIFFS’ COUNSEL: “That’s the plaintiffs’ understanding.”
GOVERNMENT’S COUNSEL: “That’s correct, your honor.”
THE COURT: “In other words, this is the last train out of this station,
agreed?”
PLAINTIFFS’ COUNSEL: “Agreed.” -
GOVERNMENT’S COUNSEL: “Agreed.”
? Pub. L. No. 103-182, 107 Stat. 2057 (1993), codified at 19 U.S.C.
§§ 3301-3473. Some of this court’s references to “NAFTA” will be joint
references to NAFTA and to the Implementation Act.
* 139 Cong. Rec. H10,048 (daily ed. Nov. 17, 1993).
* 139 Cong. Rec. $16,712-13 (daily ed. Nov. 20, 1993).
* See 107 Stat. 2057, 2061-62, codified at 19 U.S.C. § 3311.
PAL i PE Si ORS PES BARD! NLR SIED ha
39a
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 seg. (“Trade Act of 1988’’), and the Trade Act of
1974, 19 U.S.C. § 2101, et seg., (“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.
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 Ill 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 veritas from toto caelo
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.
40a
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 contempiated by Article Il,
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 | 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,
4la
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 their 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,’ ‘the executive Power,’ and ‘the judicial
Power,’ it does not attempt to define those terms.” ° The
Constitution clearly “limits the jurisdiction of federal courts
to ‘Cases’ and ‘Controversies’. . .” ’ 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.” * As stated in Allen v. Wright, 468
U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984), “the
case or controversy requirement defines with respect to the
Judicial Branch the idea of separation of powers on which the
Federai Government is founded.”
° Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 119 L. Ed. 2d 351,
112 S. Ct. 2130 (1992).
"Id. 2
* Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312, 2317, 138 L. Ed. 2d
849 (1997), quoting Simon yv. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976).
42a
“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.” ’ “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.” '° The Supreme Court’s decision in Lujan v.
Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351, 112
S. Ct. 2130 (1992), represents, perhaps, the most compre-
hensive 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:
. .. The core component of standing is an essential and
unchanging part of the case-or-controversy requirement
of Article II.
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 traceable to the challenged action of the
defendant, and not . . . the 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, 119 L. Ed. 2d 351
(citations omitted).
* Lujan, 504 U.S. at 560, quoting Whitmore v. Arkansas, 495 U.S. 149,
109 L. Ed 2d 135, 110 S. Ct. 1717 (1990).
'° Aller, 468 U.S. at 750-51, quoting Warth v. Seldin, 422 U.S. 490,
498, 45 L Ed. 2d 343, 95 S. Ct. 2197 (1975).
%
43a
As to the third prong of the standing analysis, the Ninth
Circuit has stated that “To 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.” '' The Supreme Court’s decision in Public
Citize> v. Dept. of Justice, 491 U.S. 440, 105 L. Ed. 2d 377,
109 S. Ct. 2558 (1989), where the Court found that a
declaratory judgment might fulfill the redressability
requirement even if it does not provide full redress for the
plaintiffs’ injuries, appears to support the Ninth Circuit’s
position. '7 Nonetheless, the Supreme Court “has always
insisted on strict compliance” with Article II standing
requirements, and the standing inquiry is “especially
rigorous” in determining the constitutionality of legislation.’°
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 plaintiff's 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);
'' Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir. 1994).
'? Public Citizen v. Dept. of Justice, 491 U.S. 440, 450-51, 105 L. Ed.
2d 377, 109 S. Ct. 2558 (1989).
'3 Raines, 117 S. Ct. at 2317-18.
44a
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91,
114-115, 60 L. Ed. 2d 66, 99 S. Ct. 1601, 1614-1615,
and n.31, (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 “presume 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 (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.” '* Nonetheless, this court will remain mindful of the
'4 In addressing the standing burden of proof with respect to motions
for summary judgment, the Lujan Court stated:
In response to a summary judgment motion . . . the plaintiff can
no longer rest on such “mere allegations,” but must “set forth” by
affidavit or other evidence “specific facts,” Fed.RuleCiv.Proc. 56(e),
which for purposes of the summary judgment motion will be taken
to be true. And at the final stage, those facts (if controverted) must
be “supported adequately by the evidence adduced at trial.”
Gladstone, 441 U.S. at 115, n.31, 99 S. Ct. at 1616, n.31. 504 U.S.
at 561. The court notes that neither party has addressed the standing
issue according to the summary judgment standard and that both
parties have agreed that the hearing held in connection with this case
on May 17, 1999 was sufficient to address of all issues before this
court in this case.
The Government has addressed the jurisdiction issues solely with
respect to its Motion, to Dismiss. Thus, plaintiffs argue that their
Amended Complaint alleges that their injuries have been caused by
NAFTA and remind the court that it must deny the Government’s
motion “unless it appears beyond doubt that the plaintiff[s] can
prove no set of facts in support of [their] claim which would entitle
2
ef
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45a
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,” '° and that “a federal court is
powerless to create its own jurisdiction by embellishing
otherwise deficient allegations of standing.”’°
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, 70 L. Ed. 2d 700, 102 S. Ct. 752 (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
them to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d
80, 78 S. Ct. 99 (1957); see United States v. Students Challenging
Regulatory Agency Procedures, 412 U.S. 669, 688-89, 37 L. Ed. 2d
254, 93 S. Ct. 2405 (1973) (refusing to dismiss for lack of standing
based on argument that causation allegations were untrue, stating, “if
. .. these allegations were in fact untrue, then the appellants should
have moved for summary judgment on the standing issue”); Smith v.
Meese, 821 F.2d 1484, 1496 (11th Cir. 1987) (applying Conley
standard to standing issue).
'5 Warth, 422 U.S. at 518.
'© Whitmore v. Arkansas, 495 U.S. 149, 155-56, 109 L. Ed. 2d 135, 110
S. Ct. 1717 (1990).
46a
conduct of the defendant.’” '’ A plaintiff must also show that
he “stand[s] to profit in some personal interest” by a judgment
in his or her favor.'* Further, the plaintiff must show that he
has been injured in some particularized way, meaning that the
plaintiff’s “injury must affect the plaintiff in a personal and
individual way.” '” 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.” *’ The basis for standing is
established “so long as each person can be said to have
suffered a distinct and concrete harm.” *! However, “the fact
that other citizens or groups of citizens might make the same
complaint . . . does not lessen appellants’ asserted injury
...” ” 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.” *°
While the Supreme Court has held that standing exists
when a plaintiff's vote has been diluted relative to the votes
of other citizens,”* or when voting districts are distorted in the
interest of providing specific groups of voters more or less
'7 454 U.S. at 472 (quoting Gladstone Realtors v. Village of Bellwood,
441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979)).
'§ Allen v. Wright, 468 U.S. 737, 766, 82 L. Ed. 2d 556, 104 S. Ct.
3315 (1984).
'? Lujan, 504 U.S. at 560 n.1.
*° Warth v. Seldin, 422 U.S. 490, 518, 45 L. Ed. 2d 343, 95 S. Ct. 2197
(1975).
2! Michel v. Anderson, 304 U.S. App. D.C. 325, 14 F.3d 623, 626
(D.C.Cir. 1994).
* Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 449-
50, 105 L. Ed. 2d 377, 109 S. Ct. 2558 (1989).
3 Whitmore v. Arkansas, 495 U.S. at 160.
** See, e.g., Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691
(1962).
Je on nll
Ra OR he SIP Ras Lhe a I oe
47a
leverage,” 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, 304 U.S. App. D.C. 325, 14 F.3d 623
(D.C.Cir. 1994). In Michel, the D.C. Circuit held that voters
had standing to challenge the constitutionality 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:
In this case the alleged [vote] dilution occurs after the
voters’ representative is elected . . . but 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.
> See e.g., Davis v. Bandemer, 478 U.S. 109, 92 L. Ed. 2d 85, 106 S.
Ct. 2797 (1986).
48a
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, 23 L. Ed. 2d
491, 89 S. Ct. 1944 (1969),”° 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.”’
The Raines court further concluded that the plaintiffs’
situation did not fall within its holding in Coleman v. Miller,
307 U.S. 433, 83 L. Ed. 1385, 59 S. Ct. 972 (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
6 See, supra, at (11)(C)(2)(d) for discussion.
27 Powell, 89 S. Ct. at 1980.
Cf a ee ae ee, we ey
ME rR
49a
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.” “* 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
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.”
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
8 Coleman, 307 U.S. at 438.
*? The Government also notes that the Raines court took into
consideration the fact that the plaintiffs had not been authorized to act as
representatives of their respective Houses of Congress in the action, and
argues that this court, too, should attach “some importance” to the fact that
the plaintiffs here have not been so authorized.
50a
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.” *” The
Government points to the Supreme Court’s language in
Lujan, where the Court stated that:
Raising 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 Ill case or
controversy.
504 U.S. at 573-74. The Government, in characterizing the
plaintiffs’ complaint as a generalized grievance, also cites
Fairchild v. Hughes, 258 U.S. 126, 66 L. Ed. 499, 42 S. Ct.
274 (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
© Raines, 117 S. Ct. at 2324 (Souter, J., concurring in judgment).
4
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the voter plaintiffs’ claims should be dismissed for lack of
standing.”
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 irnmediate threat of future injury.” ~
“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 exposure to the conduct.” *°
Thus, the Government claims, citing City of Los Angeles v.
Lyons, 461 U.S. 95, 102, 75 L. Ed. 2d 675, 103 S. Ct. 1660
(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.”
*! The plaintiffs counter the Government’s argument that their injury is
undifferentiated from that of the general public simply by pointing out that
they are not complaining of a general dilution of their Senators’ voting
power. Rather, the plaintiffs argue that they voted for Senators who, like
the plaintiffs, opposed the approval and implementation of NAFTA’s
provisions and that those Senators, in turn, voted against NAFTA on
November 20, 1993.
* Alabama Freethought Ass’n v. Moore, 893 F. Supp. 1522, 1544
(N.D.Ala. 1995) (citing Cone Corporation v. Florida Dept. of Transp.,
921 F.2d 1190, 1203-05 (11th Cir.), cert. denied, 500 U.S. 942, 114 L.
Ed. 2d 479, 111 S. Ct. 2238 (1991).
*3 Steel Company v. Citizens for a Better Environment, 523 U.S. 83,
118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998); Alabama Freethought, 893 F.
Supp. at 1544.
* The plaintiffs, citing In re Thornburgh, 276 U.S. App. D.C. 184, 869
F.2d 1503, 1511 (D.C.Cir. 1989), contend that the Government’s
arguments regarding impropriety of injunctive relief are premature in that
a redressability analysis should begin from the premise that “a decision on
the merits would be favorable and that the requested relief would be
granted;” it is not “an inquiry into the scope of the court’s power to grant
52a
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.” * Such is the case for the individual plaintiffs. |
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.” *° As in Raines,
the plaintiffs in this case have not been individually “singled
out for specially unfavorable treatment.” *”
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
relief.” Thus, according to the plaintiffs, the Governments argument
regarding the negative effects of injunctive relief on foreign relations is
not relevant as to whether this court has the authority to grant such relief
and whether such relief would redress plaintiffs’ injuries. Whether this
court should, in its discretion, grant such relief is not pertinent to the
question of whether it may do so and, thereby remedy the plaintiffs’
injuries.
® Allen, 468 U.S. at 752.
*© Raines, 117 S. Ct. at 2317 (quoting Lujan, 504 U.S. 555 at 560).
*” Raines, at 2318. It should also be noted that, as in Raines, the
plaintiffs’ claim of standing was based on a loss of political power rather
than loss of a private right. If the plaintiffs alleged the loss of a private
right, their injury would appear more concrete. See id.
53a
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.”* The injury claimed by 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 .” © The voter
plaintiffs have asserted little else. These plaintiffs’ claims will
be dismissed for lack of standing.
* The Supreme Court has held that “legislators whose votes would
have been sufficient to defeat (or enact) a specific legislative act have
standing to sue if that legislative action goes into effect (or does not go
into effect), on the ground that their votes have been completely nullified.”
Raines, 521 U.S. 811, 117 S. Ct. 2312, 2319, 138 L. Ed. 2d 849 (citing
Coleman, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385). Clearly, the
plaintiffs’ contention that NAFTA would not have been passed had the
two-thirds rule been applied to the vote that was taken is correct. A first
blush reading might lead one to conclude that the plaintiffs have made a
fairly strong case for voter standing based on the Raines Court’s
discussion of Coleman. However, the Raines Court carefully articulates
the fact that the holding in Coleman applies to situations where votes on a
specific piece of legislation are completely nullified. The plaintiffs’ claims
do not truly focus on a one-time nullification of their Senators’ votes, but
on an allegedly unconstitutional process that has been employed in a
number of instances. The injury is clearly not specifically focused on the
plaintiffs or their Senators. Thus, although this case is closer to creating
the specificity called for by the Coleman decision than did the Raines
scenario, it does not fall under the aegis of the Coleman Court's
conclusion.
* 495 U.S. at 160.
54a
C. Institutional Piaintiffs
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.””
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.”'
” The Government has not contested the plaintiffs’ claim that they have
suffered an injury in fact:
THE COURT: So you’re not making an argument of no injury?
MS. RUBIO: [For defendant] No. ....
THE COURT: So your emphasis is on redressability?
MS. RUBIO: That’s right.
THE COURT: Not injury or the lack thereof itself?
MS. RUBIO: Right, right. .. .
Transcript of Oral Argument of May 17, 1999, 19-20.
*' This alleged distinction also plays an important role in the
Government’s arguments concerning the redressability of plaintiffs’
injuries and on the merits of this case.
Peis tee Sine Sl ater bac Wa: Sas VS eta ee
5Sa
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.” 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.” * 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 implemen-
tation, such reference simply incorporates certain written
terms of NAFTA into duly-approved 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)
*? H.R. Doc. No. 103-159, vol. I, at 1292 (1993) (NAFTA art. 2203):
19 U.S.C. § 3311(b).
* H.R. Rep. No. 103-361(1), at 17 (1993), reprinted in 1993
U.S.C.C.A.N. 2552, 2567.
56a
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 unconsti-
tutional. 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
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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
case 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 submitted to
Congress by the President (hereinafter “SAA” or “Statement
of Administrative Action”), 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
“ H.R. Doc. 103-159, Vol. I.
58a
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.” sas
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 depend-
ence.”© 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].” *’
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 severable, NAFTA would still be playing a
major role in the harm suffered by the plaintiffs. Examples of
SAA at 457.
* 19 U.S.C. § § 3314, 3331, 3332, 3334, 3335.
*7 19 U.S.C. § 3331.
Hie DN
59a
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 Govern-
ment’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 . . .” “* The Lujan decision, among others, makes
clear that “it must be ‘likely,’ as opposed to merely
‘speculative,’ that the injury will be ‘redressed by a favorable
decision.’ ” ””
* Steel Company v. Citizens for a Better Environment, 523 U.S. 83,
118 S. Ct. 1003, 1020, 140 L. Ed. 2d 210 (1998).
504 U.S. at 561 (quoting Simon, 426 U.S. 26, 41-42 (1976)). At
some point in their brief in response to the Government’s Motion to
Dismiss, the plaintiffs argue that they must simply allege ‘“‘a plausible
60a
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,’ such a ruling would
ground to believe that the injuries they allege could be redressed by the
Court.” The Government points out that this contention is incorrect. Citing
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 45-46, 48 L.
Ed. 2¢ 450, 96 S. Ct. 1917 (1976) and Duke Power Co. v. Carolina
Environmental Study Group, Inc., 438 U.S. 59, 74-75, 57 L. Ed. 2d 595,
98 S. Ct. 2620, and n. 20 (1978), the Government argues that the Supreme
Court has, on numerous occasions, articulated the fact that a plaintiff must
show that a particular result is not just “plausible”, but “substantially
likely.” The Government notes that the plaintiffs’ complaint does not
allege that it is “substantially likely” that their desired relief will truly
remedy their injuries. The Government argues that no such claim is made
because the plaintiffs recognize that they cannot make such a showing.
The Government makes this contention based on its belief that while
the plaintiffs’ complaint focuses on the effect of the Implementation Act,
the complaint does not truly challenge the constitutionality of the
Implementation Act or regulations, but NAFTA itself. The Government
notes that the plaintiffs have not alleged a cause of action against the
constitutionality of the Implementation Act and have not, in relation to the
Motion to Dismiss, provided any basis for challenging the validity of the
Implementation Act as passed pursuant to Congress’s enumerated Article |
powers. Thus, according to the Government, any relief the plaintiffs could
receive as a result of this court's finding that NAFTA was approved in an
unconstitutional manner would fail to redress any of the plaintiffs’ injuries,
which arise out of the implementing legislation.
The Government also asserts that to the extent the plaintiffs do raise
claims against the Implementation Act, such claims must surely fail, as the
hee 0? al
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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 declar-
atory 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 “likely” 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 /n re
Aircrash in Bali, 684 F.2d 1301, 1308-10 (9th Cir. 1982),
Implementation Act amounts to nothing more than duly-passed
congressional legislation enacted pursuant to the Congress's Article |
powers to raise revenue, lay and collect taxes, duties, imposts and excises,
and to regulate foreign commerce. If this is the case, then, under the
Government's analysis, the plaintiffs either do not or cannot seek relief
from the true cause of their injuries—the Implementation Act—and
cannot, therefore have standing to bring this suit.
62a
cert. denied, 493 U.S. 917 (1989): United States v. Guy
Capps, Inc., 204 F.2d 655, 659-00 (4th Cir. 1953), aff'd on
other grounds 348 U.S. 296, 99 L. Ed. 329, 75 S. Ct. 326
(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
63a
invalid as United States Jaw, the Agreement’s self-executing
provisions, cited above,”' 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
(Sth 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.>”
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, according to the
Government, cannot direct the President to repudiate an
international agreement.”? 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.
! See, supra, at (I1)(C)(1)(b).
” Scheinberg, 659 F.2d at 481. See also Sutherland on Statutes,
§ 44.07 (“Where the purpose of the statute is defeated by the invalidity of
part of the act, the entire act is void.”).
»* This argument is recounted in detail infra, at (II)(C)(2)(b).
64a
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.”
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.’ As noted above, the
4 The plaintiffs argue that even if this court finds that the
'mplementation Act does not fall as a direct result of a finding that
NAFTA is unconstitutional, they have alleged that the Implementation Act
would not have been passed in the absence of NAFTA. Thus, the plaintiffs
seek a judgment declaring the Act null and void based on that more
indirect connection.
°° The Government asserts, citing § 339(c) of the Restatement, that
only the President has the authority and discretion to bind the United
States under international law. The Government also points to United
States v. Pink, 315 U.S. 203, 229, 62 S. Ct. 552, 86 L. Ed. 796 (1942), in
which the Court, quoting Justice Sutherland’s dicta in United States v.
Curtiss-Wright Corp., 299 U.S. 304, 320, 81 L. Ed. 255, 57 S. Ct. 216
(1936), states that the President is “the sole organ of the federal
government in the field of international relations.” Based on the Court’s
deference to the Chief Executive in areas of foreign relations, the Court
has, in the past, refused to question the position taken by the President
concerning the recognition of foreign nations, sovereignty over territory,
or declaring or denying sovereign immunity. See, e.g., Pfizer, Inc. v.
United States, 137 U.S. 308, 319-20 (1978); Jones v. United States, 137
U.S. 202, 212, 34 L. Ed. 691, 11 S. Ct. 80 (1890); Foster v. Neilson, 27
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65a
U.S. (2 Pet.) 253, 307, 7 L. Ed. 415 (1829); Republic of Mexico v.
Hoffman, 324 U.S. 30, 35-36, 89 L. Ed. 729, 65 S. Ct. 530 (1945).
In arguing that the President’s action in this case created a binding
international obligation, the Government points to the Restatement, § 302-
303, and the Vienna Convention on the Law of Treaties, art. 26. The
Government argues that even if this court were to declare NAFTA
unconstitutional for purposes of domestic law, the United States’
obligations under international law would persist. The Government notes
that in Pigeon River Improvement, Slide and Boom Co. v. Charles W. Cox,
Lid., 291 U.S. 138, 160, 78 L. Ed. 695, 54 S. Ct. 361 (1934), the Supreme
Court acknowledged that although a later Act of Congress that conflicted
with a provision in a treaty “would control in our courts as the later
expression of our [domestic] law . . . the international obligation [would]
remain |] unaffected.” Further, the Vienna Convention, Article 46, states:
1. A State may not invoke the fact that its consent to be bound by a
treaty has been expressed in violation of a provision of its internal
law regarding competence to conclude treaties as invalidating its
consent unless that violation was manifest and concerned a rule of
its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any
State conducting itself in the manner in accordance with normal
practice and in good faith.
The Vienna Convention defines the term “treaty” to include any
international agreement, irrespective of the procedure used to bring it into
force. Vienna Convention, Article 2, para. I(a). In determining whether
the use of an executive agreement in lieu of a treaty would amount to a
“manifest violation,” the Restatement concludes that such use would not
generally be a manifest violation given the lack of specificity within the
text of the Constitution and the fact that the President clearly has the
authority to conclude at least some types of agreements as executive
agreements. Restatement § 311(3) and comment c.
Plaintiffs argue that the Government’s reliance on provisions of the
Vienna Convention on treaties is misplaced in that the United States has
refused to ratify the Vienna Convention specifically because Article 46(2)
does not recognize that the President must comply with the Treaty Clause
in order for the United States to make a treaty. Plaintiffs note that their
contention is borne out by a study prepared for the Senate Committee on
Foreign Relations by the Congressional Research Service entitled: Treaties
and Other International Agreements: The Role of the United States Senate
66a
Government argues that this 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, 1 L. Ed. 2d 1148, 77 S. Ct. 1222 (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,°° the
21-22 (Comm. Print 1993). Plaintiffs also maintain that, under the Pigeon
River case, if this court were to declare NAFTA unconstitutional as a
matter of United States domestic law, any international obligation that
might remain “would [not] control in our courts.” 291 U.S. at 160. Thus,
despite the fact that this court could not invalidate any of the Uniied States
obligations under international law, it could redress plaintiffs’ injuries
caused by changes in domestic law.
°° In Reid, the Court, in determining whether an_ international
agreement—in this case an executive agreement—could subject American
citizens living abroad with their military spouses to criminal prosecution
via military courts without a trial by jury or other Bill of Rights
protections, held that “no agreement with a foreign nation can confer
power on the Congress, or on any other branch of Government, which is
free from the restraints of the Constitution.” 354 U.S. 1 at 16, 77 S. Ct.
1222, 1 L. Ed. 2d 1148. The Court went on to state that:
Article VI, the Supremacy Clause of the Constitution, declares:
“This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land;...”
There is nothing in this language which intimates that treaties and laws
enacted pursuant to them do not have to comply with the provisions of the
Constitution. Nor is there anything in the debates which accompanied the
drafting and ratification of the Constitution which even suggests such a
result. These debates as well as the history that surrounds the adoption of
the treaty provision in Article VI make it clear that the reason treaties were
not limited to those made in ‘pursuance’ of the Constitution was so that
agreements made by the United States under the Articles of Confederation,
including the important peace treaties which concluded the Revolutionary
War, would remain in effect. It would be manifestly contrary to the
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objectives of those who created the Constitution, as well as those who
were responsible for the Bill of Rights—let alone alien to our entire
constitutional history and tradition—to construe Article VI as permitting
the United States to exercise power under an international agreement
without observing constitutional prohibitions. In effect, such construction
would permit amendment of that document in a manner not sanctioned by
Article V. The prohibitions of the Constitution were designed to apply to
all branches of the National Government and they cannot be nullified by
the Executive or by the Executive and the Senate combined.
There is nothing new or unique about what we say here. This Court has
regularly and uniformly recognized the supremacy of the Constitution over
a treaty. For example, in Geofroy v. Riggs, 133 U.S. 258, 267, 33 L. Ed.
642, 10 S. Ct. 295, it declared:
The treaty power, as expressed in the constitution, is in terms
unlimited except by those restraints which are found in that
instrument against the action of the government or of its
departments, and those arising from the nature of the government
itself and of that of the States. It would not be contended that it
extends so far as to authorize what the constitution forbids, or a
change in the character of the government or in that of one of the
States, or a session of any portion of the territory of the latter,
without its consent.
This Court has also repeatedly taken the position that an Act of
Congress, which must comply with the Constitution, is on a full
parity with a treaty, and that when a statute which is subsequent in
time is inconsistent with a treaty, the statute to the extent of conflict
renders the treaty null. It would be completely anomalous to say that
a treaty need not comply with the Constitution when such an
agreement can be overridden by a statute that must conform to that
instrument.
There is nothing in Missouri v. Holland which is contrary to the
position taken here. There the Court carefully noted that the treaty
involved was not inconsistent with any specific provision of the
Constitution. The Court was concerned with the Tenth Amendment
which reserves to the States or the people all power not delegated to
the National Governmert. To the extent that the United States can
validly make treaties, the people and the States have delegated their
power to the National Government and the Tenth Amendment is no
barrier.
68a
Government, citing Franklin v. Massachusetts, 505 U.S. 788,
802-03, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992);
Mississippi v. Johnson, 7\ U.S. (4 Wall.) 475, 501, 18 L. Ed.
437 (1866); and Swan v. Clinton, 321 U.S. App. D.C. 359,
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.’ The Government
contends that the Supreme Court’s language in Clark v. Allen,
331 U.S. 503, 509, 91 L. Ed. 1633, 67 S. Ct. 1431 (1947)”*;
In summary, we conclude that the Constitution in its entirety
applied to the trials of Mrs. Smith and Mrs. Covert. Since their
court-martial did not meet the requirements of Art. III, § 2, or the
Fifth and Sixth Amendments we are compelled to determine if there
is anything within the Constitution which authorizes the military trial
of dependents accompanying the armed forces overseas.
354 U.S. at 16-18. The Court recognized that an executive agreement was
involved, but held that “it cannot be contended that such an agreement
rises to greater stature than a treaty.” /d. at 17. Thus, the Court held that it
could construe the provisions of the international agreement involved in
essentially the same manner as any piece of legislation.
*’ The Government does recognize that the Supreme Court’s decision
in Franklin left open the question of whether the President might be
enjoined from performing a purely ministerial act, but argues that a
decision concerning the entry into or withdrawal from an international
agreement clearly involves a large degree of discretion and cannot be
considered purely ministerial.
** The Clark court, in determining the extent to which an outbreak of
war suspends or abrogates a treaty between warring nations, stated:
The question is not what states may do after war has supervened,
and this without breach of their duty as members of the society of
nations. The question is what courts are to presume that they have
done. . . [The] President and Senate may denounce the treaty, and
thus terminate its life. Congress may enact an inconsistent rule,
which will control the action of the courts. The treaty of peace itself
may set up new relations, and terminate earlier compacts, either
tacitly or expressly. . . But until some one of these things is done,
until some one of these events occurs, while war is still flagrant, and
the will of the political departments of the government unrevealed,
the courts, as I view their function, play a humbler and more
siereeeitntniasiiiiiinie al
: 69a
2
: Van Der Weyde v. Ocean Transp. Co., 297 U.S. 114, 118, 56
S. Ct. 392, 80 L. Ed. 515 (1936)? Charlton v. Kelly, 229 U.S.
447, 474-76, 57 L. Ed. 1274, 33 S. Ct. 945 (1913)™ and
cautious part. It is not for them to denounce treaties generally, en
bloc. Their part it is, as one provision or another is involved in some
actual controversy before them, to determine whether, alone, or by
force of connection with an inseparable scheme, the provision is
inconsistent with the policy or safety of the nation in the emergency
of war, and hence presumably intended to be limited to times of
peace. The mere fact that other portions of the treaty are suspended,
or even abrogated, is not conclusive. The treaty does not fall in its
entirety unless it has the character of an indivisible act.
Clark, 331 U.S. at 509-10.
” The allegedly relevant portion of the Van Der Weyde decision states:
In this instance, the Congress requested and directed the
President to give notice of the termination of the treaty provisions in
i conflict with the act. From every point of view, it was incumbent
; upon the President, charged with the conduct of negotiations with
: foreign governments, and also with the duty to take care that the
$ laws of the United States are faithfully executed, to reach a
conclusion as to the inconsistency between the provisions of the
treaty and the provisions of the new law. It is not possible to say that
his conclusion as to [the arguably conflicting treaty and domestic
law provisions] was arbitrary or inadmissible. Having determined
that their termination was necessary, the President, through the
Secretary of State took appropriate steps to effect it.
Van Der Weyde, 297 U.S. at 117-18.
® In Charlton, the Court was faced with the question of whether or not
to grant habeas corpus relief to a United States citizen who was to be
extradited to Italy. The petitioner sought relief, claiming that the pertinent
treaty had been abrogated because, although the United States was willing
to honor the treaty, Italy insisted that it was not bound to reciprocate when
its citizens were involved. In deferring to the State Department’s decision
: to continue under the auspices of the treaty, the Court stated:
ki Rn ati ay apart
PR GREE Or Ne eT aN eR Pore ay
The Executive Department having thus elected to waive any right to
free itself from the obligation to deliver up its own citizens, it is the
4 plain duty of this court to recognize the obligation to surrender the
70a
Terlinden v\ Ames, 184 U.S. 270, 283, 46 L. Ed. 534, 22
S. Ct. 484 (1902)°! supports its contention that courts cannot
compel the President to terminate an agreement and abrogate
obligations of the United States. Further, pointing to Flynn vy.
Shultz, 748 F.2d 1186 (7th Cir. 1984), cert. denied, 474 U.S.
830, 88 L. Ed. 2d 77, 106 S. Ct. 94 (1985)°° 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’
appellant as one imposed by the treaty as the supreme law of the
land, and as affording authority for the warrant of extradition.
Charlton, 229 U.S. at 476.
*' In analyzing the effectiveness of an extradition treaty with Germany,
the Terlinden Court commented that: “Without considering whether
extinguished treaties can be renewed by tacit consent under our
Constitution, we think that on the question, whether this treaty has ever
been terminated, governmental action in respect to it must be regarded as
of controlling importance.” 184 U.S. at 285. It is difficult to tell how this
passage or the page cited by the Government support the proposition that
courts may not compel the President to abrogate an international
agreement.
*? In Flynn, the Seventh Circuit held that it could not order the United
States to request the Mexican Government to provide reasons for
detaining American citizens because such an order would put the court in
the role of directing the Nation’s foreign affairs. Flynn v. Shultz, 748 F.2d
1186, 1190 (7th Cir. 1984), cert. denied, 474 U.S. 830, 88 L. Ed. 2d 77,
106 S. Ct. 94 (1985).
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injuries would be redressed by their desired relief, even if this
court did have the authority to grant such relief.°’
** Although it did not mention the issue at the extensive recorded oral
argument, the Government, in its Memorandum in Support of its
Supplemental Motion to Dismiss, pg. 26 n.12, has argued that there is no
waiver of sovereign immunity under United States law that would allow
the plaintiffs to proceed in their suit against the United States. Although
plaintiffs have cited five statutes, 28 U.S.C. § § 1331, 1337, 1343, 1346
and 1361, purportedly supporting this court's jurisdiction in this case, the
Government contends that none of those statutory provisions suffice.
Section 1331 is the general “federal question” jurisdictional statute which,
in cases involving the federal government, does not constitute a waiver of
the government’s sovereign immunity. Section 1337, although providing
that district courts have original jurisdiction of any civil action arising
under acts of Congress relating to commerce or protecting trade, does not,
under cases such as Hagemeier v. Block, 806 F.2d 197, 202 (8th Cir.
1986), cert. denied, 481 U.S. 1054, 95 L. Ed. 2d 847, 107 S. Ct. 2192
(1987), provide a waiver of sovereign immunity. Similarly, in Beale v.
Blount, 461 F.2d 1133, 1138 (Sth Cir. 1972), the Fifth Circuit found that
Section 1343 does not constitute a waiver of the federal government’s
sovereign immunity. Although Section 1346 does amount to a limited
waiver, the Government argues that, under Shanbaum v. United States, 32
F.3d 180, 182 (Sth Cir. 1994), waiver is limited to circumstances not
present here. Finally, the Government contends that Bobula v. Dep't of
Justice, 970 F.2d 854, 860 (Fed. Cir. 1992) supports the conclusion that
Section 1361, the federal mandamus statute, does not constitute a general
waiver of sovereign immunity, but confers subject matter jurisdiction only
when a plaintiff has a clear right to relief, a defendant has a clear duty to
act, and no other adequate relief is available. Finally, the Government
notes that the statute most often cited as the source of the federal
government's waiver of sovereign immunity in cases not involving money
damages is the Administrative Procedure Act, 5 U.S.C. § 701-706.
However, as the President is not an “agency” within the meaning of the
Statute, the Government asserts that his actions are not subject to review
under the Act and that, because only the President may terminate the
Agreement, plaintiffs’ suit is barred by sovereign immunity.
After reviewing the Government's footnote and hearing oral arguments
in this case, the court posed certain questions addressing this issue to the
parties. Those questions and the parties’ responses will be filed. The court
is persuaded by the plaintiffs’ answers and does not hold that this action is
: 72a
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. The plaintiff sought an injunction
ordering the President to reinstate him and/or “such additional
relief as the court shall deem just.” © 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. However, although the court acknowledged that
barred by sovereign immunity. The parties’ differences of opinion fit a
pattern in this case.
100 F.3d at 975, 976 n.1.
®5 Id. at 973.
6 Id at 976-78. In addressing whether or not the authority of the
federal courts to direct the President to perform discretionary acts is well-
settled, the Swan court stated:
A question exists . . . as to whether a federal court has the power to
grant injunctive relief against the President of the United States in
the exercise of his official duties. The Supreme Court has confirmed
that a “grant of injunctive relief against the President himself is
extraordinary, and should . . . raise [ ] judicial eyebrows.” Franklin,
505 U.S. at 802, 112 S. Ct. at 2776. Franklin involved a challenge
to the methodology by which overseas federal employees were
allocated to different states in the 1990 census, which in turn
|
73a
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 stil] granting
the plaintiff relief by ordering subordinate executive Officials
to act as if plaintiff had been reinstated.°’ The court
determined how seats in the House of Representatives would be
reapportioned. Under the automatic reapportionment statute, the
Secretary of Commerce is required to perform the census and report
the data to the president, who within nine months is required to
transmit a statement to Congress indicating the number of
Representatives to which each state is entitled based on the census
data. The plaintiffs in Franklin sued both the Secretary of
Commerce and the President seeking injunctive and declaratory
relief. The plurality opinion of the Court concluded that “in general,
‘this court has no jurisdiction of a bill to enjoin the President in the
performance of his official duties,’” and a majority of the Justices in
fact subscribed to this position. /d. at 802-03, 112 S. Ct. at 2776-77
(quoting Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501, 18 L.
Ed. 437 (1866)); see also id. at 826, 112 S. Ct. at 2788-89 (Scalia,
J., concurring in part and concurring in the judgment) (“I think it
clear that no court has authority to direct the President to take an
Official act.”). Franklin does not, however, directly decide the
question of whether this court has the power to grant Swan the
injunctive relief he seeks, because the plurality opinion there
specifically noted that the Court had “left open the question whether
the President might be subject to a judicial injunction requiring the
performance of a purely ‘ministerial’ duty.” 505 U.S. at 802, 112 S.
Ct. at 2776 (quoting, Mississippi, 71 U.S. (4 Wall.) at 498-99).
100 F.3d at 976-77.
*” Id. at 979-81. The court stated that “In most cases, any conflict
between the desire to avoid confronting the elected head of a coequal
branch of government and to ensure the rule of law can be successfully
bypassed, because the injury at issue can be rectified by injunctive relief
against subordinate officials. Noting that, “it might appear that this case
represents one of those rare instances where... . Only injunctive relief
against the President himself will redress Swan’s injury, because only the
President has the power to remove or reinstate NCUA Board members,”
the court found that, in the alternative, it could order NCUA staff members
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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.” ** In further
examining the propriety of its redressability determination,
the court stated:
We do not believe that . . . we are performing an end run
around the redressability 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.
100 F.3d 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
to treat the plaintiff as a “de facto” Board member despite the executive
director's inability to reinstate the plaintiff. /d. at 977, 980.
Id. at 980-81.
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Se eee ee ee eee
Poe oe eee te OR enn Me.
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could, therefore, not provide the plaintiffs substantial relief.
Further, the Government asserts that any order directing
government officials to cease the implementation and
op
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