# Opposition Brief — United Steelworkers v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 1039

## Text

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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
Gapheemns REO xecccccccssesesssecsescengeccsnssessssnneesenseosenecosssanessnnepsenescsaseses 1
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2040%3A3. Public record. Not legal advice.