Court Rejects Challenge to Constitutionality of NAFTA

An Alabama federal judge on Friday rejected a union-backed lawsuit challenging the constitutionality of the North American Free Trade Agreement, leaving intact the process by which the U.S. government has pursued thousands of foreign pacts over the past four decades.

But the judge also indicated his surprise that the legal question at the core of this lawsuit--when must an international agreement be adopted as a treaty?--had not been directly addressed by the highest court in the land.

“Remarkably, in the over 200 years of this nation, the Supreme Court of the United States has not specifically and definitively decided” the key issues in this case, stated U.S. District Judge Robert Propst in his unusually detailed, 113-page ruling.

Indeed, the plaintiffs in this case--the Made in the USA Foundation, a domestic manufacturers coalition, and the United Steelworkers of America--vowed Friday to appeal the case to the highest judicial authorities.

They charge that NAFTA, a far-reaching document covering labor standards, tariffs and investment codes, is unconstitutional because it was adopted in 1993 as a congressional executive agreement--which requires a simple majority of both houses--rather than a treaty. Under the Constitution, a treaty must be adopted by two-thirds of the Senate.

“What’s the purpose of a treaty clause if you don’t have to follow it?” said Joel Joseph, chairman and general counsel of the Made in the USA Foundation.

While this federal lawsuit hinges on a complex legal issue that has been the subject of fierce scholarly debate, it reflects a real-world tug-of-war over the impacts of America’s expanding global commitments on the domestic economy, environment and health issues and national sovereignty.

Supporters of U.S. trade policy applauded Propst’s decision, arguing that an opposite ruling would not only have threatened the landmark trade agreement between the U.S., Canada and Mexico but could undo decades of U.S. foreign-policy making.

“I would be very surprised to see NAFTA struck down because of the immediate political implications of it and because of the implications for the way the United States conducts foreign affairs,” said Richard Steinberg, an international law expert at UCLA who worked for the U.S. Trade Representative’s office during the NAFTA and World Trade Organization talks. In Friday’s ruling, Propst argued that NAFTA, while it fit the definition of a treaty, was legal because in addition to the so-called treaty clause, the Constitution also gives Congress the power to regulate foreign commerce and to authorize the president to enter into foreign agreements.

In effect, Propst said, America’s founding document allowed for international pacts to be forged in different ways and it was up to Congress and the president to determine which route to take.

But Propst also acknowledged that the vagueness of the Constitution, and court decisions to date, have not clarified what kind of international agreements must be approved under the more rigorous treaty process.

The U.S. government argues that it needs the flexibility of different foreign policy tools to maneuver successfully in this increasingly complex global society.

“We believe that NAFTA is consistent not only with the Constitution but also with decisions by the U.S. Supreme Court and the manner in which trade agreements of this kind have been negotiated and implemented in this country for almost a century,” said Chris Watney, a Justice Department spokeswoman.