Opposition Brief — United Steelworkers v. United States

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2 | oct 17 2001

No. 01-5

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OFFICE OF THE C1 Ep

Jun the Supreme Court of the United States

UNITED STEELWORKERS OF AMERICA,

AFL-CIO, CLC, ET AL., PETITIONERS

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel ‘of ‘Record

ROBERT D. MCCALLUM, JR.

Assistant Altorney General

DOUGLAS N. LETTER

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether petitioners’ claim that approval and imple-

mentation of the North American Free Trade Agree-

ment (NAFTA) had to be accomplished through the

advice and consent of the Senate under the Treaty

Clause of the Constitution, Article II, Section 2, Clause

2, rather than through bicameral legislation and pre-

sentment to the President, is justiciable.

(I)

TABLE OF CONTENTS

Page

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satan datiaceedinninednenitiapininglnsiiantananniisiens l

BETTIE. cccoccennnseustnovesnnnerestounncsesentinnbimatensieatinensnnsubienenntenensensanntanne 2

FEI ccctnctncenereseeiinerensereninnmnenannneniatianianitmnnnnnaansaine 6

EE EEN ee ne ne ee On ee oe 19

TABLE OF AUTHORITIES

Cases:

Baker v. Carr, 369 U.S. 186 (1962) .............ccccceee 5, 7, 8, 10, 12

California Bankers Ass'n v. Schultz, 416 U.S. 21

EER eevee ee ne ee ee s

Dames & Moore v. Regan, 453 U.S. 654 (1981) ............006 17

Department of the Navy v. Egan, 484 U.S. 518

a ale cnianninnisnens 7

Edye v. Robertson (Head Money Cases), 112 U.S

AT ian eam ete hina nnaidiiatieeinintinbinnuadanatiebnmmnee 19

Field v. Clark, 143 U.S. 649 (1802) .......cc.cccccccsccsscscccscsceesees 9,18 -

Franklin v. Massachusetts, 505 U.S. 788 (1992) .............. 14, 16

Goldwater v. Carter, 444 U.S. 996 (1979) .......ccccccccceeeeeee 10, 12

Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840) ............ 11

INS v. Chadha, 462 U.S. 919 (1983) ............ccccccccesscesseessees 11

Ludecke v. Watkins, 335 U.S. 160 (1948) ..............ceeeee 7

Lujan v. Defenders of Wildlife, 504 U.S. 555

RAREST AEE NE DIF ere Sean a 12,14

Lujan v. National Wildlife Fed’n, 497 U.S. 871

I alcatel cata tas ali aa areelietecianinnnnetahanstemnneinnnen 15

Mississippi v. Johnson, 71 U.S. (4 Wall.) 475

STII csshihbchiiiiesiniehieicinihmistelieniniaitaeniprdanninnteipeenanenemaneinenie 14

Missouri v. Holland, 252 U.S. 416 (1920) .................e. 8, 16

Morrison v. Olson, 487 U.S. 654 (1988) .0........ccccccsessceeeees 11

Nixon v. United States, 506 U.S. 224 (1998) ..............ccc00 10

Printz v. United States, 521 U.S. 898 (1997) ...............00. 15

Raines v. Byrd, 521 US. 811 (1997) ..................cc.c.cscesseeeees 12

(IIT)

IV

Cases—Continued: : Page

Simon v. Eastern Ky. Welfare Rights Org., 426

CE, BB RID cxnsennnensessentnsrensscennsenesintinnsssnneseenincatetnnseumanastensiens 12

The Pocket Veto Case, 279 U.S. 655 (1929) ........ccscssceseeneees 18

United States v. Belmont, 301 U.S. 324 (1987) «0.0... 10

United States v. Curtiss-Wright Export Corp., 299

SE RLS Dit A rs. UN 10, 18

United States v. 12 200-Ft. Reels of Super 8 MM

Peder, EB UTE. RGB CIO TID ccceessnnseresecnnstpnenetszrennassensinessancsnnine 8

United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166

CTI. ,iisincnssnnannaiiabitsitietinaneepaetiianiieneniccseaninsianiiaiiaieisnaitenin 9

Weinberger v. Rossi, 456 U.S. 25 (1982) ......cscseseseseeeenenes 10,17

Constitution and statutes:

U.S. Const.:

DAMES TD cccecansssessescsnssesnsncesnantansessnssennennsnsscsnesecansenacsensnnssseion 6, 8, 10, 11

5G, GB cnnssscstsscierarncnsieniniscapsenttineninionsiaainiinenamnbantiinntineiins 8

§ 8:

Bs siccracessnesstnsnnoiiisthielsieiieitsaieanicaeiipsiiictiaiiniaai 8

Cl. 3 (Foreign Commerce Clause) ............s+s+0+ 5, 7-8, 10

Ce, © ccnnsscuinhsnscsisinatieeeemiinaiininiaeniiaeiiiai 8

BF 0 recarccacccsnscsreasecsesosncscessecanqnecennsssosasaeusenecsqseenensensnseneennnsets 2,17

BART cecncecencesscsorseseeneenensonsennnensnitianeniansanveinesiantiiaiiibasenetssapnsaess 8,11

DG GO, By ccccsinsscsicancstiiisienseetictniinseamisteniesinihicinneadgeaiaiadcimaupiiinii 7

GD Ch BCT reat Cae) ccceceeecnssssssscnenncsesnnsnnggeancanenns passim

OS scsscdvcsinsteninanehinstictianbsinpsiinapichibeateigneiiniphabahipuintdadansniiaiiiiieiemnaiodies 7

Bhai TET sascha iad elie 12

Act of June 13, 1798, ch. 53, 1 Stat. 565 20.0... cccssccsssssssses 18

Act of Dec. 19, 1806, ch. 1, 2 Stat. 411 nce ccssseesessenees 18

Act of Mar. 1, 1809, ch. 24, 2 Stat. 528 ........csssssssssesesseeeees 18

Administrative Procedure Act, 5 U.S.C. 701-706 ............... 15

McKinley Tariff Act, ch. 1244, 26 Stat. 567 .. 18

North American Free Trade Agreement Implementa-

tion Act, Pub. L. No. 103-182, 107 Stat. 2057 (19 U.S.C.

BBO OF BOG.) ..c.cce.asccccecececesosornssssocsecssscsscscsnsnssseccscosscnssessseosscees 3

WD UE RA. BIG cccetennsensintonnsereansinatssrvineminnniiansintaininninainnnionn 15

V

Statutes—Continued:

Oe ee

SIG CUE iach itches laaeia

Omnibus Trade and Competitiveness Act of 1988,

19 U.S.C. 2901 et seq.:

I ic

Be ee I si cttsiseisatibesibishiecnienatinntebitastectinaibiil

I a ii iia

ee ais III isis leccahinccentenbcnensiiboes inaniidseneannidciabeiie

Trade Act of 1974, 19 U.S.C. 2101 et seq.:

8 eT ee

§ 501, 19 U.S.C. 2461 (1994 & Supp. V 1999) 0.

19 U.S.C. 2701-2707 (1994 & Supp. V 1999) ceescsssssccsssseseseee

a aes SEITE intend a aii.

Page

Jn the Supreme Court of the Gnited States

No. 01-5

UNITED STEELWORKERS OF AMERICA,

AFL-CIO, CLC, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-36a)

is reported at 242 F.3d 1300. The opinion of the district

court (Pet. App. 37a-231a) is reported at 56 F. Supp. 2d

1226.

JURISDICTION

The judgment of the court of appeals was entered on

February 27, 2001. On May 21, 2001, Justice Kennedy

extended the time within which to file a petition for a

writ of certiorari to and including June 28, 2001, and the

petition was filed on that date. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. The Treaty Clause of the Constitution, Article II,

Section 2, Clause 2, provides 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 Constitution also

recognizes other types of understandings and arrange-

ments with foreign nations. In particular, Article I,

Section 10 provides categorically that “No State shall

enter into any Treaty, Alliance, or Confederation,” but

further provides that no State shall enter into “any

Agreement or Compact with another State, or with a

foreign Power,” without the consent of Congress. The

Constitution does not specifically distinguish a treaty

from an agreement or compact, nor does it describe the

understandings or arrangements that are subject to the

advice and consent procedure of the Treaty Clause.

2. In 1990, the United States, Mexico, and Canada

initiated negotiations concerning a North American

Free Trade Agreement (NAFTA) with the goal of eli-

minating or reducing tariffs and other trade barriers

and creating a free-trade zone that encompasses the

three countries. Pet. App. 3a. In December 1992, the

leaders of the three nations signed NAFTA.

NAFTA was negotiated and given effect in United

States law pursuant to so-called “fast track” procedures

specified in the Omnibus Trade and Competitiveness

Act of 1988, 19 U.S.C. 2901, and Section 151 of the

Trade Act of 1974, 19 U.S.C. 2191. Those laws allowed

the President to negotiate trade agreements and

submit them—together with implementing legislation

—to Congress for bicameral consideration under ex-

pedited legislative procedures. See 19 U.S.C. 2191,

2902(b)-(c), 2903(b)-(c). The fast track procedures di-

3

rect the President to consult with Congress before and

during trade negotiations, 19 U.S.C. 2902(d), but also

require an expedited yes-or-no vote by Congress on the

final agreement and proposed implementing legislation,

19 U.S.C. 2191.

Congress approved and implemented NAFTA in the

NAFTA Implementation Act (Implementation Act),

Pub. L. No. 103-182, 107 Stat. 2057, codified at 19

U.S.C. 3301 et seg. To bring domestic law into con-

formity with the provisions of NAFTA as signed by the

President and submitted to Congress, the Implementa-

tion Act amended various federal statutes and created

entirely new provisions of federal law. See 2 Pet.

Lodging 223-341 (Statement of Administrative Action,

summarizing changes to existing law and administra-

tive regulations necessary to implement NAFTA).

Congress made clear that the provisions of NAFTA

have no domestic legal effect if they are inconsistent

with federal law. 19 U.S.C. 3312(a)(1).

3. Petitioners and other plaintiffs filed this action in

the United States District Court for the Northern

District of Alabama, asserting that NAFTA is unconsti-

tutional and invalid because, together with the Imple-

mentation Act, it constitutes a treaty that was not

approved by two-thirds of the Senate under the Treaty

Clause. See Pet. App. la, 2a n.1, 39a-40a. Petitioners

sought declaratory relief and 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.” Id. at 60a.

The government moved to dismiss the case, arguing

that the case raises a political question not appropriate

for judicial resolution and that petitioners lack standing

to bring their claims. The parties also filed cross-

motions for summary judgment on the merits. See Pet.

4

App. 37a. The district court denied the government’s

motion to dismiss but granted summary judgment in

favor of the United States. Jd. at 37a-231a.

The district court found that petitioners have stand-

ing, concluding that their alleged injury is traceable to

NAFTA (Pet. App. 54a-59a) and likely would be re-

dressed by a decision in petitioners’ favor (id. at 59a-

89a). The district court also held (id. at 90a-139a) that

the case does not raise a nonjusticiable political ques-

tion. On the merits, however, it found—after what the

court of appeals characterized as “remarkably learned

and thorough” analysis (id. at 2a)—that the Treaty

Clause is not the exclusive mechanism for approving

international trade agreements such as NAFTA.

Rather, the court concluded, the President had author-

ity to negotiate and conclude NAFTA under his

executive authority and under the fast track legislation,

and NAFTA was permissibly approved and imple-

mented through an Act of Congress. Jd. at 218a-231a;

see also id. at 189a-218a.

4, The United States Court of Appeals for the Elev-

enth Circuit vacated the district court’s decision on

jurisdictional grounds and remanded with instructions

to dismiss the action. Pet. App. 36a. Like the district

court, the court of appeals held that petitioners have

standing. In particular, the court of appeals found it

likely that petitioners’ alleged injury would be re-

dressed by a ruling in their favor because terminating

NAFTA and reimposing barriers to trade likely would

increase the domestic availability of American-made

products (thus benefitting the members of petitioner

Made in the USA Foundation who wish to buy

American-made products) and expand employment in

the manufacture of American products (thus benefitting

the labor-union petitioners). Jd. at 9a-19a.

5

The court of appeals further held, however, that it

lacked jurisdiction because the case presents a nonjus-

ticiable political question. Pet. App. 20a-34a. In Baker

v. Carr, 369 U.S. 186 (1962), this Court identified six

indicia of a political question, any one of which will

support a finding of nonjusticiability:

a textually demonstrable constitutional commitment

of the issue to a coordinate political department; or a

lack of judicially discoverable and manageable stan-

dards for resolving it; or the impossibility of

deciding without an initial policy determination of a

kind clearly for nonjudicial discretion; or the im-

possibility of a court’s undertaking independent re-

solution without expressing lack of the respect due

coordinate branches of government; or an unusual

need for unquestioning adherence to a political de-

cision already made; or the potentiality of embar-

rassment from multifarious pronouncements by

various departments on one question.

Id. at 217. Applying those criteria, the court of appeals

noted that the Foreign Commerce Clause and other

constitutional provisions constitute “broad textual

grants of authority” over foreign policy to Congress and

the President, “leav[ing] only a narrowly circumscribed

role for the Judiciary.” Pet. App. 24a. The court also

explained that petitioners’ argument that all “major

and significant” agreements must be entered into pur-

suant to the Treaty Clause failed to provide any judi-

cially manageable standard for resolving controversies

about the Clause’s applicability. Jd. at 28a-29a. Finally,

the court noted that a decision invalidating NAFTA

would risk international embarrassment to the United

States and affect the Nation’s relations with Canada

and Mexico; endanger the nation’s economy; and “run

6

the risk of intruding upon the respect due coordinate

branches of government.” Accordingly, the court of

appeals held that the case is not justiciable. Jd. at 32a-

34a.

Because the court of appeals concluded that the case

presents a political question, it did not decide whether

Senate advice and consent to NAFTA under the Treaty

Clause was required. The court stressed, however, that

it was not granting the political Branches “unfettered

discretion” to decide whether international agreements

must be approved pursuant to the Treaty Clause. Pet.

App. 35a. Rather, the court’s holding was limited to

“the context of international commercial agreements

such as NAFTA,” where Congress’s enumerated power

to regulate foreign commerce was directly implicated

and there was no identifiable standard for determining

whether a particular agreement must be regarded as a

“treaty” that requires the advice and consent of the

Senate under the Treaty Clause. Jd. at 36a.

ARGUMENT

The court of appeals’ holding that this case presents a

nonjusticiable political question is correct and does not

conflict with any decision of this Court. Petitioners

have not asserted a conflict between the decision below

and a decision of another court of appeals. This case

also is not an appropriate vehicle for addressing the

reach of the Treaty Clause, Article II, Section 2, Clause

2, because/it presents serious standing questions and

questions about the appropriateness of judicial relief

that provide alternative bases for dismissing the case.

Finally, if/the merits were considered, the provisions of

7

approval of NAFTA in the Implementation Act did not

vitiate Congress’s powers to legislate in the area of

foreign commerce and to establish trade rules. Further-

more, even if the proper focus of this suit were approval

of NAFTA itself, as petitioners suggest, the express

constitutional powers of the President and Congress

over foreign policy and foreign trade, as well as the

decisions of this Court, demonstrate that the Treaty

Clause is not the exclusive means for approving foreign

commercial agreements such as NAFTA.

1. a. “The nonjusticiability of a political question is

primarily a function of the separation of powers.” Baker

v. Carr, 369 U.S. 186, 210 (1962). Accordingly, a case

presents a nonjusticiable question if it involves, among

other things, “a textually demonstrable constitutional

commitment of the issue to a coordinate political de-

partment.” Jd. at 217. In this case, overlapping textual

commitments to the political Branches establish the

political nature of petitioners’ claims.

The President exercises foreign-affairs powers as

Commander-in-Chief of the armed forces (Art. II, § 2,

Cl. 1), through his power to “receive Ambassadors and

other public Ministers” (Art. II, § 3), and in the course

of “tak[ing] care that the Laws be faithfully executed”

(ibid.). He 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 (1948); see Department of

the Navy v. Egan, 484 U.S. 518, 529 (1988) (noting “the

generally accepted view that foreign policy was the

province and responsibility of the Executive”) (citation

omitted).

With respect to foreign commerce, however, the Con-

stitution vests Congress with broad regulatory power.

In particular, the Foreign Commerce Clause, Article I,

8

Section 8, Clause 3, empowers Congress to “regulate

Commerce with foreign Nations.” Congress also is

authorized to take various other actions that may affect

foreign commerce, such as raising revenue (Art. I, § 7,

Cl. 1), laying and collecting taxes, duties, imposts, and

excises (Art. I, § 8, Cl. 1), and regulating the value of

foreign currency (Art. I, § 8, Cl. 5). This Court has rec-

ognized that “(t]he Constitution gives Congress broad,

comprehensive” and “plenary” powers to regulate for-

eign commerce. United States v. 12 200-Ft. Reels of

Super 8MM Film, 413 U.S. 128, 125-126 (1973); accord

California Bankers Ass’n v. Schultz, 416 U.S. 21, 46

(1974) (“[t]Jhe plenary authority of Congress over * * *

foreign commerce is not open to dispute”). In the lan-

guage of Baker v. Carr, the Foreign Commerce Clause

and the other provisions cited above constitute “a tex-

tually demonstrable constitutional commitment” of

foreign-commerce powers to Congress, 369 U.S. at 217,

which is tempered only by the assignment of general

foreign-affairs powers to the President.

Petitioners do not dispute that the subjects ad-

dressed by the Implementation Act lie within the broad

reach of Congress’s plenary powers under Article I of

the Constitution, including those over foreign com-

merce and the laying of taxes, imposts, duties, and ex-

cises. They do not argue, for example, that the subject

matter of the Implementation Act is inherently beyond

the power of Congress to address under the Consti-

tution in the absence of a prior treaty to which the Act

of Congress gives effect. Cf. Missouri v. Holland, 252

U.S. 416, 432 (1920). Petitioners nevertheless suggest

that in order for the Implementation Act to be valid,

it must also be supported by the exercise of the

President’s power under Article II of the Constitution

to make treaties by and with the advice and consent of

|

I

9

the Senate. We know of no authority, however, for the

proposition that a court may invalidate provisions of an

Act of Congress that raise or lower tariffs or enact

other trade regulations that are within Congress’s leg-

islative power, simply because the Act of Congress was

in turn based on standards that were previously negoti-

ated by the President with other nations and approved

by Congress in the Act itself.’ Whether a law that is

independently within the power of Congress to enact

should be accompanied by the President’s making of a

treaty addressing the same subject matter would ap-

pear to be a classic example of a question that is for the

political Branches to decide.

b. Petitioners in effect argue (Pet. 25-28) that Con-

gress’s legislative powers are limited by the Treaty

Clause and that measures approving international com-

mercial accords are an exception to Congress’s plenary

legislative power over foreign commerce and the laying

of taxes, duties, imposts, and excises. Even then, peti-

tioners do not dispute that the Constitution reserves to

the political Branches “the power to make such inter-

national agreements as do not constitute treaties in the

1 Congress not infrequently enacts laws that embody principles

that have been the subject of negotiations by others, see, e.g.,

United States R.R. Retirement Board v. Fritz, 449 U.S. 166, 170

n.3 (1980), as well as laws providing for the raising or lowering of

tariffs and other trade barriers with a view toward the adoption of

reciprocal measures by other nations, see, e.g., Field v. Clark, 143

U.S. 649, 680, 682-690 (1892); 19 U.S.C. 2701-2707 (1994 & Supp. V

1999) (Caribbean Basin); 19 U.S.C. 3101-3111 (telecommunications

trade). The fact that the President has received a commitment

from the leader of another nation concerning reciprocal measures

in advance of Congress’s enactment of a law does not render it

impermissible for Congress to take that action into account and,

indeed, to approve the action as part of its enactment.

10

constitutional sense.” United States v. Curtiss-Wright

Export Corp., 299 U.S. 304, 318 (1936) (citation

omitted); see Weinberger v. Rossi, 456 U.S. 25, 30 n.6

(1982) (“We have recognized * * * that the President

may enter into certain binding agreements with foreign

nations without complying with the formalities required

by the Treaty Clause.”); United States v. Belmont, 301

U.S. 324, 330-331 (1937). Yet petitioners fail to

propose—and the Constitution does not provide—an

analytical framework for distinguishing between inter-

national trade agreements that must be entered into by

the President by and with the advice and consent of

the Senate under the Treaty Clause, and international

trade agreements that Congress may approve and give

effect to through the passage of a law pursuant to its

express powers under the Foreign Commerce Clause

and other provisions of Article I of the Constitution.

The most that petitioners can say is that “historical

materials” indicate that “substantial international eom-

mercial agreements like NAFTA” are subject to the

Treaty Clause. Pet. 23. As the court of appeals held,

however, that “nebulous argument” (Pet. App. 28a)

based on extra-textual sources puts this case squarely

within Baker v. Carr’s rule that a case also presents a

political question if there is “a lack of judicially dis-

coverable and manageable standards for resolving it.”

369 U.S. at 217; see Pet. App. 28a-29a. See also Gold-

water v. Carter, 444 U.S. 996, 1003 (1979) (plurality

opinion) (challenge to procedure by which President

terminated mutual defense treaty with Taiwan is non-

justiciable because 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”); Nixon v. United

States, 506 U.S. 224, 230 (1993) (finding political ques-

1]

tion because “the use of the word ‘try’ in the first

sentence of the Impeachment Trial Clause lacks suffi-

cient precision to afford any judicially manageable stan-

dard of review of the Senate’s actions”).’

Petitioners note (Pet. 22-24) that this Court has

sometimes found cases judicially manageable despite a

lack of clarity in the relevant provisions of the Consti-

tution. See, e.g., Morrison v. Olson, 487 U.S. 654 (1988);

INS v. Chadha, 462 U.S. 919 (1983). But as the court of

appeals noted, none of the cases on which petitioners

rely bore directly on foreign policy or threatened to

undermine the authority of the President and Congress

“to manage our external political and economic rela-

tions.” Pet. App. 31a.

By contrast, and as the court of appeals also ex-

plained (Pet. App. 3la-34a), for the judiciary to attempt

to resolve the question of whether NAFTA was re-

quired to be approved under the Treaty Clause of

Article II as well as pursuant to Congress’s enumerated

powers under Article I would “express[] [a] lack of the

respect due coordinate branches of government” and

2 In Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840), a plurality

of the Court explained that “[t]he power to make treaties is given

by the Constitution in general terms, without any description of

the objects intended to be embraced by it.” Jd. at 569. Although

the plurality suggested that the Treaty Clause could be applied to

“all those subjects, which in the ordinary intercourse of nations

had usually been made subjects of negotiation and treaty; and

which are consistent with the nature of our institutions, and the

distribution of powers between the general and state govern-

ments,” the Court did not “attempt[] to define the exact limits of

this treaty-making power, or to enumerate the subjects intended

to be included in it.” Jbid. Nor did the plurality address the

question of whether any particular measure must be adopted by

the federal government by entering into a treaty rather than

through the exercise of Congress’s plenary legislative powers.

12

create “the potentiality of embarrassment from multi-

farious pronouncements by various departments on one

question.” Baker v. Carr, 369 U.S. at 217. A judicial

declaration invalidating NAFTA would “clearly risk”

international embarrassment of both the Executive

and Legislative Branches (Pet. App. 32a) and produce

“serious repercussions for our nation’s external rela-

tions with Mexico and Canada” (id. at 38a). Indeed, the

court of appeals noted that “granting the [petitioners’]

requested relief in this case * * * would potentially

undermine every other major international commercial

agreement made over the past half-century.” Jbid.

Particularly given that there is no dispute between the

Executive and Legislative Branches regarding the pro-

cedures used to approve NAFTA, see 7d. at 34a, judicial

restraint is appropriate. Cf. Goldwater v. Carter,

444 USS. at 997 (Powell, J., concurring) (“The Judicial

Branch should not decide issues affecting the allocation

of power between the President and Congress until the

political branches reach a constitutional impasse.”).

2. The court of appeals found that petitioners have

Article III standing. Pet. App. 9a-19a. Nonetheless,

this case presents serious standing questions that add

to the likelihood that the case would be found nonjusti-

ciable if further review were granted and, therefore,

further counsel in favor of denying the petition.

To establish standing, petitioners would have to show

that it is “‘likely,’ as opposed to merely ‘speculative,’

that the injury will be ‘redressed by a favorable de-

cision.’” Lujan v. Defenders of Wildlife, 504 U.S. 555,

561 (1992) (quoting Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 38, 43 (1976)). The standing

inquiry is “especially rigorous” when the constitutional-

ity of legislation is at issue. See Raines v. Byrd, 521

U.S. 811, 819-820 (1997).

13

Petitioners allege that the political Branches’ ap-

proval and implementation of NAFTA has injured them

in their efforts to buy American-made products, in em-

ployment, and in the labor union petitioners’ repre-

sentation of their members. Pet. App. 56a-57a. Even

assuming that the petitioners have suffered constitu-

tionally sufficient injury (which was not contested be-

fore the district court in the context of the motion to

dismiss, see id. at 54a n.40), judicial invalidation of

NAFTA would redress those injuries only if it resulted

in a greater availability of American-made products and

caused particular businesses to increase their employ-

ment in the United States. Indeed, to satisfy the “re-

dressability” requirement, petitioners would have to

establish, at a minimum, that (1) if the United States

ceased to consider itself bound by NAFTA and ceased

to apply the Implementation Act, it would raise trade

barriers rather than pursuing policies consistent with

NAFTA under other provisions of law, see, e.g., 19

U.S.C. 2461 (1994 & Supp. V 1999) (authorizing Pre-

sident to provide duty-free treatment for articles from

developing countries); (2) the new trade barriers would

cause firms to produce more in the United States and to

extend additional jobs or more favorable terms to

workers represented by the petitioner unions, rather

than continuing production in their current locations or

shifting production to new locations outside the United

States; and (3) such changes would not be offset by

ensuing economic or policy changes in Mexico, Canada,

or other countries that cause a reduction of production

and jobs in the United States. A coalescence of politi-

cal, economic, social, and other forces therefore would

determine whether petitioners’ asserted injuries would

be ameliorated by the relief they seek. Where, as here,

redressability “depends on the unfettered choices made

14

by independent actors not before the courts and whose

exercise of broad and legitimate discretion the courts

cannot presume either to control or to predict,” stand-

ing “is ordinarily substantially more difficult to estab-

lish.” Lujan v. Defenders of Wildlife, 504 U.S. at 562

(internal quotation marks omitted).

Petitioners’ request for a judicial injunction ordering

the President to notify Canada and Mexico that the

United States is withdrawing from NAFTA presents

an additional redressability issue, because a court has

no power to enjoin the President to perform such an

undertaking. See Mississippi v. Johnson, 71 U.S. (4

Wall.) 475, 501 (1866) (“{W]e are fully satisfied that this

court has no jurisdiction of a bill to enjoin the President

in the performance of his official duties; and that no

such bill ought to be received by us.”); Franklin v.

Massachusetts, 505 U.S. 788, 802-803 (1992) (opinion of

O’Connor, J.); id. at 826-827 (Scalia, J., concurring in

part and concurring in the judgment); see also Pet. App.

14a-19a & n.20.

Finally, petitioners face an especially high hurdle in

showing standing because NAFTA serves as a frame-

work to facilitate the parallel enactment of tariff reduc-

tions and other trade laws that each signatory nation

could have adopted unilaterally and that, under our

Constitution, lie within the plenary power of Congress

to enact on behalf of the United States. Wholly aside

from their relationship to NAFTA, the trade rules

established by the Implementation Act were a valid

exercise by Congress of its authority to regulate for-

eign commerce through legislation. See Point 1, supra.

Thus, the Implementation Act’s provisions could well

remain in force even if, as petitioners request, the

15

courts declared Congress’s approval of NAFTA in-

valid.*

3. Quite apart from the applicability of the political

question doctrine, the defects in petitioners’ standing,

and the unavailability of relief against the President,

there are other serious problems concerning the appro-

priateness of judicial relief in this case. As the court of

appeals correctly noted (see Pet. App. 14a-15a n.20),

the Administrative Procedure Act (APA), 5 U.S.C. 701-

706, does not furnish a cause of action in this case

because only the President can terminate this Nation’s

participation in NAFTA and the President is not an

“agency” for purposes of the APA. Although other

Executive Branch officials have responsibilities for

carrying out the Implementation Act, petitioners do not

name any such officials in their complaint, and they do

not base their challenge on any particular “final agency

action” by one of those officials that adversely affects

their members in a distinct and concrete way. See

Pet. App. 18a n.25. Petitioners instead have brought a

broad-based challenge to NAFTA itself. Cf. Lwjan v.

National Wildlife Fed’n, 497 U.S. 871, 890-894 (1990).

It is true that in Franklin, supra, the Court enter-

tained a constitutional challenge to the compilation of

state census totals even though the plaintiffs had no

cause of action against the President under the APA.

3 Relying on 19 U.S.C. 3311 (approving NAFTA) and 3331

(tariff modifications to implement NAFTA), the court of appeals

concluded (Pet. App. 19a n.26) that the entirety of the Imple-

mentation Act would be void if NAFTA were not valid. Neither of

the provisions cited by the court of appeals requires such a result,

and the court of appeals’ severability analysis is open to serious

question. Cf. Printz v. United States, 521 U.S. 898, 935 (1997) (de-

clining to address severability question after invalidating pro-

visions of the Brady Act on constitutional grounds).

16

But there the plaintiffs challenged a discrete govern-

mental decision, issued by the Secretary of Commerce

under the Census Act and approved by the President

under the Apportionment Act, that had an immediate

and direct impact on what the plaintiffs alleged to be

their distinct rights under the Constitution to a parti-

cular apportionment of Representatives. See 505 U.S.

at 797-800. Petitioners here do not rest their challenge

to NAFTA on an alleged direct and immediate inter-

ference with any comparably distinct and personal con-

stitutional rights. In the absence of an express statu-

tory cause of action for the sort of generalized challenge

that petitioners raise, the courts at the very least

should decline to entertain petitioners’ suit for declara-

tory and injunctive relief as a matter of equitable

discretion.

4. Even if this case could properly be entertained,

the district court was correct in its ruling on the merits

that the political Branches exercised valid constitu-

tional authority in providing a framework for negoti-

ating NAFTA and then approving and giving effect

to NAFTA in United States law through the passage of

a law, rather than under the Treaty Clause. See Pet.

App. 139a-231a.

First, and as discussed above, the revisions to United

States trade laws made by the Implementation Act are

independently within Congress’s plenary power. The

Implementation Act is not the sort of law that is valid

only because it was enacted to implement a treaty that

was made by the President by and with the advice and

consent of the Senate. Cf. Missouri v. Holland, 252

USS. at 482. There accordingly is no basis for a court to

invalidate that law simply because it enacts standards

that were embodied in a trade agreement that the

President negotiated for presentation to Congress.

17

With respect to approval of the NAFTA agreement

itself, moreover, Congress followed permissible pro-

cedures. While the Treaty Clause establishes a pro-

cedure by which the President may enter into treaties

on behalf of the United States, Article I, Section 10 of

the Constitution recognizes that sovereigns additionally

may enter into “agreements” and “compacts” with for-

eign nations. The Constitution does not specify any

particular procedures for forming international under-

standings or arrangements by means other than a

treaty. Nor, as noted in Point 1, above, does it specify

circumstances under which an international agreement

may be approved only pursuant to the Treaty Clause.

Although the President and the Senate could have

approved NAFTA through the Treaty Clause, the exis-

tence of that option does not suggest that it was

exclusive. In Dames & Moore v. Regan, 453 U.S. 654

(1981), for example, the Court upheld the suspension of

judicial claims against Iran by an Executive Order that

was issued by the President as part of a settlement

with Iran, even though similar settlement agreements

had been adopted under the Treaty Clause. “Though

[similar] settlements have sometimes been made by

treaty,” the Court explained, “there has also been a

longstanding practice of settling such claims by execu-

tive agreement without the advice and consent of the

Senate,” id. at 679 (footnote omitted), which Congress

has implicitly approved, id. at 680-686. In Weinberger

v. Rossi, moreover, the Court noted that “Congress has

not been consistent in distinguishing between Art. II

treaties and other forms of international agreements,”

456 U.S. at 30, but the Court did not intimate that the

latter agreements are constitutionally defective.

From its earliest days, Congress has used bicameral

legislation to approve rules governing trade with for-

18

eign nations. See, e.g., Act of June 13, 1798, ch. 53, 1

Stat. 565 (suspending trade between United States and

France); Act of Dec. 19, 1806, ch. 1, 2 Stat. 411 (sus-

pending prohibition on importation of certain goods and

authorizing President to extend suspension); Act of

Mar. 1, 1809, ch. 24, 2 Stat. 528 (imposing embargo

on commercial dealings between United States, Great

Britain, and France). For more than a century, more-

over, Congress has provided advance legislative ap-

proval of presidential trade initiatives. See Pet. App.

109a (citing trade acts of 1890, 1897, and 1934); United

States v. Curtiss-Wright Export Corp., 299 U.S. at 322-

326 & n.2. In Field v. Clark, 143 U.S. 649 (1892), this

Court upheld the constitutionality of one such provision

(the McKinley Tariff Act, ch. 1244, 26 Stat. 567), which

provided advance approval for the President to revise

tariffs in response to the actions of other countries, and

empowered him to enter into tariff agreements with

foreign nations. See Pet. App. 179a-180a. In sustaining

the Act, the Court specifically rejected the contention

that the Act impermissibly delegated not only law-

making power, but also treaty-making power to the

President. See 143 U.S. at 694. Such “long settled and

established practice is a consideration of great weight

in a proper interpretation of constitutional provisions”

relating to the operation of government. The Pocket

Veto Case, 279 U.S. 655, 689 (1929).

Petitioners suggest that approving and implementing

NAFTA through bicameral passage and presentment

to the President avoided a constitutional “check.” Pet.

21. But as this Court stated in holding that Congress

may override a treaty by a duly enacted law, an Act of

Congress is not “less entitled to respect * * * thana

treaty” on the basis that it was approved by majorities

of the House and Senate rather than “two thirds of the

19

Senators present,” Article II, Section 2, Clause 2. Edye

v. Robertson (Head Money Cases), 112 U.S. 580, 599

(1884). “If there be any difference in this regard, it

would seem to be in favor of an act in which all three of

the bodies [i.e., the President, the Senate, and the

House] participate.” bid.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

DOUGLAS N. LETTER

Attorney

OCTOBER 2001