242 F.3d 1300 (11th Cir. 2001), 98-01794-CV-PT-M, Made in the USA Foundation v United States

Docket Nº:D. C. Docket No. 98-01794-CV-PT-M
Citation:242 F.3d 1300
Case Date:February 27, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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242 F.3d 1300 (11th Cir. 2001)




No. 99-13138

D. C. Docket No. 98-01794-CV-PT-M

United States Court of Appeals, Eleventh Circuit

February 27, 2001

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Appeal from the United States District Court for the Northern District of Alabama

Before TJOFLAT, WILSON and B. FLETCHER[*], Circuit Judges.

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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 appellants1 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

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"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, 1993,2 Congress approved NAFTA and provided for a series of domestic laws to effectuate and enforce NAFTA's provisions.3

Neither NAFTA nor the Implementation Act were subjected to the ratification procedures outlined in the Treaty Clause.4 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.5 Furthermore, the appellants point to several early examples in our Nation's history (such as the Jay Treaty debate)6 when the United States entered into major commercial agreements with other countries, each of which was ratified as a treaty and approved

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by a two-thirds supermajority of the Senate.7

Based on the near-contemporaneous writings of Emmerich de Vattel,8 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.9 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.

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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, § 10.10 Accordingly, the Court has never decided what sorts of international agreements, if any, might require Senate ratification pursuant to the procedures outlined in Art. II, § 2. 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.11 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.12

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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...

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