Made in USA Foundation United Steel Workers of America v. United States, 072399 ALMDC, CV 98-PT-1794

• Party Name: MADE IN THE USA FOUNDATION UNITED STEEL WORKERS OF AMERICA, LOCAL 12L UNITED STEEL WORKERS, FRANK VICKERS, JAMES L. BOWEN, and DAVID WILSON, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Case Date: July 23, 1999
• Court: United States District Courts, 11th Circuit, U.S. District Court — Northern District of Alabama

MADE IN THE USA FOUNDATION UNITED STEEL WORKERS OF AMERICA, LOCAL 12L UNITED STEEL WORKERS, FRANK VICKERS, JAMES L. BOWEN, and DAVID WILSON, Plaintiffs,

v.

UNITED STATES OF AMERICA, Defendant.

No. CV 98-PT-1794-M

United States District Court, Northern District, Alabama Middle Division

July 23, 1999

MEMORANDUM OPINION

ROBERT B. PROPST, SENIOR UNITED STATES DISTRICT JUDGE

This cause comes to be heard on a motion to dismiss filed by the defendant on December 21, 1998 and on the respective motions for summary judgment filed by the plaintiffs on March 19, 1999 and by the defendant on April 19, 1999. The parties have acknowledged that there are no genuine issues of fact and that the only issues are issues of law. This court heard recorded oral arguments on May 17, 1999. The parties acknowledged at that hearing that there is no need for any further hearing before this court, evidentiary or otherwise.¹

I. Introduction and Summary of the Parties' Positions

In 1990 the United States, Mexico and Canada initiated negotiations with the intention of creating a "free trade zone" through the elimination or reduction of tariffs and other barriers to trade. After two years of negotiations, the leaders of the three countries signed the North American Free Trade Agreement ("NAFTA" or the "Agreement") on December 17, 1992. Congress approved and implemented NAFTA on December 8, 1993 with the passage of NAFTA Implementation Act ("Implementation Act"),² which was passed by a vote of 234 to 200 in the House³ and 61 to 38 in the Senate.⁴ The Implementation Act served two purposes, to "approve" NAFTA and to provide a series of laws to "locally" enforce NAFTA's provisions.⁵ The enactment of the Implementation Act brought to a close a lengthy period of rancorous debate over NAFTA. The instant suit seeks to reopen that debate by pulling back NAFTA's coat and demonstrating that the Agreement and Implementation Act stand on sand rather than on firm Constitutional ground. Brought to bear in this case is an almost century-long bout of Constitutional theorizing about whether the Treaty Clause, contained in Article II, Section 2 of the United States Constitution (the "Treaty Clause"), creates the exclusive means of making certain types of international agreements.

Neither NAFTA nor the Implementation Act were subjected to the procedures outlined in the Treaty Clause. The President purportedly negotiated and concluded NAFTA pursuant to his constitutional responsibility for conducting the foreign affairs of the United States and in accordance with the Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. § 2901, et seq. ("Trade Act of 1988"), and the Trade Act of 1974, 19 U.S.C. § 2101, et seq., ("Trade Act of 1974"), under the so-called "fast track" procedure. Congress then approved and implemented NAFTA by enacting the Implementation Act, allegedly pursuant to its power to legislate in the areas of tariffs and domestic and foreign commerce.

The plaintiffs contend that this failure to go through the Article II, Section 2, prerequisites renders the Agreement and, apparently, the Implementation Act, unconstitutional. The Government denies this, arguing, first, that this court has no Article III jurisdiction over the instant question because the plaintiffs lack standing to bring this action and also because the plaintiffs' claims present a non-justiciable political question and, second, that NAFTA and the Implementation Act are not in violation of the Constitution.

The issues have been exceedingly well-briefed and well-argued by both sides. As the Romans might have said, this court is now charged with finding veritas from toto caelo positions. This court has been supplied with a variety of ingredients from the parties, academic pundits, voices from the past, caselaw extrapolations and other sources from which a judicial chef can create any desired Constitutional pottage. The issues are relatively easy to state, but are more difficult to resolve.

The issues are the following:

(1) Do the individual plaintiffs have standing to bring this action?

(2) Do plaintiffs Made in the U.S.A. Foundation, United Steel Workers of America and Local 12L United Steel Workers have standing to bring this action?

(3) Does the political question doctrine preclude jurisdiction of this court as to all plaintiffs and all claims? Do NAFTA and the Implementation Act constitute a "treaty" as contemplated by Article II, Section 2 of the Constitution? Even if NAFTA and the Implementation Act constitute a "treaty" as contemplated by Article II, Section 2 of the Constitution, was the making and implementation of NAFTA authorized under other provisions of the Constitution?

The only certitude established by the parties through their briefs and oral arguments is that there is no certitude with regard to any of the issues.

Remarkably, in the over two hundred years of this nation, the Supreme Court of the United States has not specifically and definitively decided the principles applicable to issues (4) and (5). I will discuss the issues in the order stated, except that it will not be possible to totally separate the discussion of the principles applicable to the various issues, because the issues are intertwined. There may be some duplication of discussion. I will, however, reach separate conclusions as to these intertwined issues. In my discussion I will summarize and emphasize the arguments of the parties. I am well aware that this court lacks both infallibility and finality and that any decisions I reach will likely be ephemeral. For this reason I wish to give full vent to the parties' positions as well as reach my own conclusions. Actual quotes from cases, documents, treatises, articles, etc. as stated by the parties are adopted by the court unless otherwise stated.

II. Standing

For the purposes of the standing analysis the plaintiffs can be divided into two distinct groups: (1) the "voter plaintiffs," consisting of those plaintiffs who have brought claims in their individual capacities and (2) the "institutional plaintiffs," which include the Made in the USA Foundation, the United Steelworkers of America, and Local 12L United Steel Workers. The Government asserts that both the institutional and voter plaintiffs lack standing to bring their claims. Although the standing arguments differ somewhat with respect to each of the two sets of plaintiffs, the basic principles of the standing analysis, as outlined by the Supreme Court, apply to both.

"While the Constitution of the United States divides all power conferred upon the Federal Government into 'legislative Powers,''[t]he executive Power,' and '[t]he judicial Power,' it does not attempt to define those terms."⁶ The Constitution clearly "limits the jurisdiction of federal courts to 'Cases' and 'Controversies' . . ."⁷ The Supreme Court has stated that, "No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies."⁸ As stated in Allen v. Wright, 468 U.S. 737, 750 (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."

"One of the landmarks, setting apart the 'Cases' and 'Controversies' that are 'serv[ing] to identify those disputes which are appropriately resolved through the judicial process,' - is the doctrine of standing."⁹ "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues."¹⁰ The Supreme Court's decision in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), represents, perhaps, the most comprehensive exposition of the standing requirements the Court has provided. In Lujan, the Court noted that the standing analysis requires the examination of three criteria, stating:

. . . [T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an 'injury in fact' - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not conjectural' or 'hypothetical.' Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be 'fairly 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 decision.'

504 U.S. 560-61 (citations omitted).

As to the third prong of the standing analysis, the Ninth Circuit has stated that "[T]o have standing, a federal plaintiff must show only that a favorable decision is likely to redress his injury, not that a favorable decision will inevitably redress his injury."¹¹ The Supreme Court's decision in Public Citizen v. Dept. of Justice, 491 U.S. 440 (1989), where the Court found that a declaratory judgment might fulfill the redressability requirement even if it does not provide full redress for the plaintiffs' injuries, appears to support the Ninth Circuit's position.¹² Nonetheless, the Supreme Court "ha[s] always insisted on strict compliance" with Article III standing requirements, and the standing inquiry is "especially rigorous" in determining the constitutionality of legislation.¹³

Significant in the analysis of any legal doctrine is the placement of the burden of proof and the degree of proof required. In Lujan, the Court discussed the burden of proof applicable to a standing analysis, stating:

The party invoking federal jurisdiction bears the burden of...