Made in the USA Foundation v. USA, (11th Cir. 2001)

Federal Circuits

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United States Court of Appeals,

Eleventh Circuit.

Feb. 27, 2001.

Appeal from the United States District Court for the Northern District of Alabama. (No. 98-01794-CV-PT-M), Robert B. Propst, Judge.

Before TJOFLAT, WILSON and B. FLETCHER (1), Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

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 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.

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 (2) 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 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. Munsingwear, 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, (3) Congress approved NAFTA and provided

for a series of domestic laws to effectuate and enforce NAFTA's provisions (4)

Neither NAFTA nor the Implementation Act were subjected to the ratification procedures outlined

in the Treaty Clause. (5) Summoning primarily historical arguments, the appellants contend that this failure to

go through the Art. II, § 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. (6) Furthermore, the appellants point to several early examples in our Nation's history (such as the Jay

Treaty debate) (7) 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. (8)

Based on the near-contemporaneous writings of Emmerich de Vattel, (9) the appellants contend that the

key distinction in 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. (10) 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 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. (11) 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. 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. (12) 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. (13)

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).

II 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 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 trace[able] to the challenged action of the defendant, and

not ... th[e] result [of] the independent action of some third party not before the court." Third, it must

be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable


The district court found--and the government does not really contest--that the appellants' pleadings meet the

injury-in-fact and causation requirements. (14) Instead, the Government 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. (15) 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. (16) 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, 102 F.3d 573 (D.C.Cir.1996), (17) Dellums v. U.S. Nuclear Regulatory Comm'n, 863 F.2d 968

(D.C.Cir.1988), (18) and Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258

(D.C.Cir.1980). (19) We find these cases, however, to be 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. (20) 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. (21) 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. (22) 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, 100 F.3d 973, 976-77


Franklin involved a challenge to the methodology by which overseas federal employees were

allocated to different states in the 1990 census, which in turn affected how seats in the House of

Representatives would be reapportioned. (23) 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. Id.

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 "thorn[y] standing question [of] whether the injury is

redressable by the relief sought." Id. 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 "[f]or 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." Id. 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 provision by

the District Court, even though they would not be directly bound by such a determination." Id. (24)

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 "[i]n 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." Id. at 976-78. The court

nonetheless concluded that it 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." Id. at 980-81. In so holding, the court "recogniz[ed] that

such partial relief is sufficient for standing purposes when determining whether we can order more complete

relief would require us to delve into complicated and exceptionally difficult questions regarding the

constitutional relationship between the judiciary and the executive branch." Id.

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. (25) 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. (26) Hence, we believe that even short of directly 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 "[s]ome 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. (27)

III. 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 (28) confirm

the wisdom of maintaining the practice of judicial nonintervention into such matters. Drawing heavily from

(then Associate) Justice Rehnquist's plurality opinion in 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. Id.

In Goldwater, Justice Powell's concurrence suggested that the Baker analysis could be condensed into

a three-question inquiry:

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

coordinate branch of government?

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

(iii) Do prudential considerations counsel against judicial intervention?

444 U.S. 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 foreign powers with the consent of Congress. The Cases-and-Controversies Clause, U.S.

Const. Art. III, § 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 "[t]his 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) 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. III, § 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. (29)

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) ("recogniz[ing] 'the generally accepted

view that foreign policy [i]s 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 S.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 "[m]atters relating 'to the conduct

of foreign relations ... are so exclusively entrusted to the political branches of government as to be largely

immune from judicial inquiry or interference.' " 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)). (30)

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. (31) See Curtiss-Wright, 299 U.S. at 318, 57 S.Ct. 216, 81 L.Ed. 255;

see also Ackerman and Golove, supra, 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." I.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 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." Id. at 1003, 100 S.Ct. 533. (32) 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. Id. (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. (33) 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, 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 defining how courts should go about making such

distinctions. (34) 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 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

expertise, inasmuch as it does not involve a ruling on the policy merits of NAFTA, but only a determination

as to the constitutionality 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, 395 U.S. at 548-49, 89 S.Ct. 1944,

23 L.Ed.2d 491, 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 constitutional 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 guidance in the text of the Constitution, such a determination should be considered a political


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 "[e]xcessive," 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 "[t]he 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 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; (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, 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 on one question." Baker, 369 U.S.

at 217, 82 S.Ct. 691, 7 L.Ed.2d 663. Although the appellants argue that these considerations 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, 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, 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 "[i]f 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 "[c]ooperation 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 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

"[t]he Judicial Branch should not decide issues affecting the allocation of power between the President and

Congress until the political branches reach an impasse." Id. 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. (35) 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.

IV Conclusion

We therefore conclude that this case presents a nonjusticiable 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." Id. The Dole court thus "decline[d] 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), "[i]t 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 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 objects 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) ("Submission 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

constitutionally-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).


*. Honorable Betty Binns Fletcher, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.

1. 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.1. We therefore assume without deciding for purposes of this

appeal that the claims of the individual appellants were properly dismissed by the district court.

2. 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. S16,712-13 (daily ed. Nov. 20, 1993).

3. See 19 U.S.C. §§ 3311 et seq.

4. 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.

5. 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 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." Id. at 771-72. Implementing legislation for

the Jay Treaty eventually passed in the House by a vote of 57 to 35. Id. at 782-83.

7. See Bruce Ackerman and David Golove, Is 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).

8. 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 50 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 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: "[T]hose 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 ...." Id. 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).

9. 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).

10. 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 "[w]hatever 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).

11. 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.

12. 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) ("[T]he 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

("[P]ractice under the Constitution ... has confirmed beyond doubt ... that the treaty-making power is no

barrier to Congressional authorization or sanction of 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 L.J. 616 (1945) (offering a direct response to the

arguments presented by McDougal and Lans).

13. 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

appellant[s] 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, 495 U.S. 149, 160, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990).

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, 117

S.Ct. 1154, 137 L.Ed.2d 281 (1997).

14. See, e.g., President Clinton, Study on the Operation and Effect of the North American Free Trade

Agreement 19, 21-22 (1997) (providing a sectoral analysis of NAFTA's effects and acknowledging that

while studies on the net employment effects of NAFTA are inconclusive, "[c]learly, 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'l 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'l Trade Comm'n, Investigation No. 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


15. See id.

16. 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 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.

17. 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 regulating air travel

between the United States and the United Kingdom, claiming that the agreement was invalid because it

was a treaty that should have been submitted for Senate approval. 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 acknowledged that the

United Kingdom would probably not agree to any modification of the flight limits that had been agreed to

in the executive 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.

19. 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.

20. 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 seq.--cannot serve that purpose here, given

that only the President may terminate our country's participation in NAFTA. As a 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. Id. 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 Commerce 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. Clinton, 100 F.3d 973, 981


21. See Curtiss-Wright, 299 U.S. at 319, 57 S.Ct. 216, 81 L.Ed. 255 ("[T]he 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).

22. 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.

23. Citing Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501, 18 L.Ed. 437 (1866), the Franklin

plurality expressly noted that "[w]e 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.

24. 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." Id. 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.").

25. 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 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


26. 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. Furthermore, 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 (5th Cir.1981).

27. 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, at 925 ("From Bretton Woods to the WTO, many of America's key commitments 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).

28. 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.

29. See also Antolok v. United States, 873 F.2d 369 (D.C.Cir.1989) ("nowhere does the Constitution

contemplate the participation by the third, non-political branch, that is the Judiciary, in any fashion in the

making of international agreements").

30. Significantly, the Court has also noted that "Congress has not been consistent in distinguishing

between Art. II treaties and other forms of international agreements." Weinberger v. Rossi, 456 U.S. 25,

30, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982).

31. 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.

32. 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).

33. 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 to 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").

34. 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.

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