MEMORANDUM OPINION

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:

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:

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:

Lujan, 504 U.S. at 561 (emphasis added). Thus, for the purposes of this motion, this court will presume that the general allegations made in the plaintiffs' amended complaint with respect to their alleged injuries are true and that they "embrace those specific facts that are necessary to support the claim."14 Nonetheless, this court will remain mindful of the plaintiffs' responsibility of showing that their claims are properly before this court, as the Supreme Court has warned that it is "the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers,"15 and that "a federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing."16

As noted above, the parties divide their standing arguments into two primary categories: (1) those involving the voter plaintiffs; and (2) those involving the institutional plaintiffs. The court will address each in turn.

A. Voter Standing

The individual plaintiffs contend that they have established standing by alleging that their voting rights were diluted because their Senators' votes on the approval of NAFTA and its Implementing Act were not given their proper weight. According to Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982), Article III of the Constitution "requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.'"17 A plaintiff must also show that he "stand[s] to profit in some personal interest" by a judgment in his or her favor.18 Further, the plaintiff must show that he has been injured in some particularized way, meaning that the plaintiff's "injury must affect the plaintiff in a personal and individual way."19 It is "the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers."20 The basis for standing is established "so long as each person can be said to have suffered a distinct and concrete harm."21 However, "[t]he fact that other citizens or groups of citizens might make the same complaint ... does not lessen appellants' asserted injury . . .,"22 and "an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court."23

While the Supreme Court has held that standing exists when a plaintiff's vote has been diluted relative to the votes of other citizens,24 or when voting districts are distorted in the interest of providing specific groups of voters more or less leverage,25 the Court has never recognized/addressed the standing of a plaintiff claiming an injury based on the dilution of the vote of his elected representative. However, the voter plaintiffs in this case are asking this court to decide just such an issue. They maintain that their voting rights were harmed because their Senators' votes against the approval of NAFTA were effectively nullified by the failure of the Senate and the President to comply with the Treaty Clause.

1. Michel v. Anderson

The strongest support for voter plaintiffs' standing argument comes in the form of the D.C. Circuit's decision in Michel v. Anderson, 14 F.3d 623 (D.C.Cir. 1994). In Michel, the D.C. Circuit held that voters had standing to challenge the constitutionality of a House rule allowing territorial delegates to vote in the Committee of the Whole, which diluted their representatives' votes. Citing previous cases in which the Supreme Court held that voters had standing to challenge practices allegedly diluting their vote, the court stated:

[I]n this case the alleged [vote] dilution occurs after the voters' representative is elected ... [b]ut we do not understand why that should be of any significance. It could not be argued seriously that voters would not have an injury if their congressman was not permitted to vote at all on the House floor.

That all voters in the states suffer this injury, along with the appellants, does not make it an "abstract" one.

14 F.3d at 626. The voter plaintiffs argue that this court should follow the reasoning of the Michel court and determine that they have standing to bring their claims against the Government.

2. Raines v. Byrd; Determining the Applicability and Viability of Michel

According to the Government, the individual plaintiffs' attempt to assert standing through a two-step "bootstrapping" argument fails due to the lack of a particularized or identifiable injury to the plaintiffs themselves. Further, the Government contends that NAFTA did not affect the rights of the voter plaintiffs' Senators to participate and vote on legislation, and that the passage of NAFTA did not hinder the Senators' ability to participate and vote in the future.

The Government argues both that Michel is factually dissimilar from this case and that the Supreme Court's decision in Raines v. Byrd casts serious doubt as to Michel's continued viability. In Raines, individual members of Congress brought an action challenging the constitutionality of the Line Item Veto Act. The Court held that the individuals did not have a sufficient "personal stake" in the dispute and did not sufficiently allege a concrete injury so as to establish standing under Article III. The Court, distinguishing its decision in Powell v. McCormack, 395 U.S. 486 (1969),26 found that the Act did not single out any of the plaintiffs, but that the diminution of power damaged all Members of Congress equally. The Court also found that the plaintiffs were seeking redress from a loss of political power rather than something to which they were personally entitled, as was the case in Powell.27

The Raines court further concluded that the plaintiffs' situation did not fall within its holding in Coleman v. Miller, 307 U.S. 433 (1939). In Coleman, the Court recognized the standing of state legislators who had been locked in a tie vote that would have defeated the state's ratification of a proposed federal constitutional amendment, and who claimed that their votes were nullified when the Lieutenant Governor broke the tie by casting his vote in favor of ratification. The Court found that the plaintiffs had "a plain, direct and adequate interest in maintaining the effectiveness of their votes."28 The plaintiffs in Raines, however, had not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated. The Court thus determined that application of Coleman to the facts of Raines would require too great an extension of the Coleman decision. The abstract notion of dilution propounded by the Raines plaintiffs was simply not enough to create standing.

The Government argues that this case is factually similar to Raines in that the plaintiffs in this case are seeking redress for a dilution in voting power that each member of the Senate has experienced. The failure to utilize the Treaty Clause mechanism for the passage of international agreements does not, according to the Government, single out any particular Senators, rather, it influences the relative weight of each of their votes. Further, the Government contends that this case is similar to Raines in that the plaintiffs are complaining of a loss of political power rather than of an individual right. Thus, argues the Government, the Supreme Court's Raines decision arguably repudiates the D.C. Circuit's holding in Michel.29

The plaintiffs, in contrast, concentrate on the Raines decision's discussion of Coleman. They argue that here, as in Coleman, the complaint focuses on the legislators' loss of voting power in relation to a specific vote. The plaintiffs contend that although the individual plaintiffs' Senators had sufficient votes to defeat the passage of NAFTA, the Senate, the Congress and the President failed to acknowledge the fact that the Agreement had not been properly ratified. They argue that their votes were not given the proper weight and that they therefore lost a vote which they should have won.

The Government also argues that the voter plaintiffs have failed to allege any specific injury apart from the "generalized interest of all citizens in constitutional government."30 The Government points to the Supreme Court's language in Lujan, where the Court stated that:

504 U.S. at 573-74. The Government, in characterizing the plaintiffs' complaint as a generalized grievance, also cites Fairchild v. Hughes, 258 U.S. 126 (1922), where the Court dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. This case, according to the Government, involves nothing more than a generalized claim that the individual plaintiffs' Senators, like all other Senators, have, in an indirect and abstract manner, lost some of their voting power. Thus, based on the Supreme Court's language in Raines, Lujan, and Fairchild, the Government contends that the voter plaintiffs' claims should be dismissed for lack of standing.31

The Government also suggests that the plaintiffs' claims do not entitle them to any type of declaratory judgment or injunctive relief. The Government argues that when a plaintiff seeks declaratory and injunctive relief, he or she must "establish a real and immediate threat of future injury."32 "Past exposure to illegal conduct does not suffice to confer standing to seek declaratory and injunctive relief, absent a real threat of imminent and continued exposure to the conduct."33 Thus, the Government claims, citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983), that unless the plaintiffs can show that the Government will again violate the provisions of the Constitution, they have no right to declaratory and/or injunctive relief.34

B. First Conclusion of the Court

I conclude that the individual plaintiffs have not satisfactorily alleged "voter standing." In Allen v. Wright, the Supreme Court noted that part of the standing inquiry involves the following inquiry: "Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable."35 Such is the case for the individual plaintiffs. I cannot conclude that these plaintiffs have alleged that they have been injured in a "personal and individual way" or that their injury is "concrete and particularized."36 As in Raines, the plaintiffs in this case have not been individually "singled out for specially unfavorable treatment."37

Although the plaintiffs argue that their Senators' votes were not given their proper weight in the NAFTA vote, the plaintiffs do not contend that the NAFTA vote was specifically engineered to injure them or that the process used to conclude NAFTA was created solely for the purpose of diluting their Senators' votes. The fast track procedure has been used to conclude a number of international agreements since its inception in 1974, it was not created for the purpose of diminishing the votes of the plaintiffs' Senators. Whatever injury, if any, these plaintiffs may have suffered may be shared by any citizen of the United States who objects to NAFTA regardless of whether their Senator(s) voted for or against NAFTA. A voter whose Senator(s) voted for NAFTA but who himself objects to NAFTA would arguably have an equal right to complain as would a voter whose Senator(s) voted against NAFTA. These plaintiffs' votes have been no more diluted.38 The injury claimed by the voter plaintiffs is simply too abstract to suffice for standing in this case. As noted by the Whitmore Court, "an asserted right to have the Government act in accordance with the law is not sufficient, standing alone, to confer jurisdiction . . ."39 The voter plaintiffs have asserted little else. These plaintiffs' claims will be dismissed for lack of standing.

C. Institutional Plaintiffs

The Government argues that the institutional plaintiffs' claims fail to establish standing when examined under the second and third prongs of the Lujan analysis, claiming that the institutional plaintiffs have failed to show that their alleged injuries are fairly traceable to actions taken by the defendant and that they have failed to establish that their injuries are redressable by this court.40

1. Causal Connection

According to the Government, the vague and non-specific allegations of the institutional plaintiffs fail to form sufficient foundation for establishing that their injuries are "fairly traceable" to the actions of the defendant. Further, although the Government argues that the general "causal connection" language of cases such as Lujan sufficiently illustrates why the institutional plaintiffs lack standing in this case, it makes an additional "causal connection" argument based on a claimed distinction between NAFTA itself and NAFTA's implementing legislation. 41

a. The Government's Claimed Distinction Between the NAFTA Agreement and the Implementing Legislation

The Government contends that NAFTA, as concluded between the United States, Canada and Mexico, is separate and distinct from the implementing legislation and related regulations. The Government further submits that the parties to NAFTA did not intend NAFTA to be self-executing, but agreed that each nation would adopt the "necessary legal procedures" to give the agreement effect as domestic law under their respective systems of government.42 The "necessary legal procedures" employed by the United States came in the form of the Implementation Act. In passing the Implementation Act, Congress approved NAFTA and made "all amendments to existing Federal statutes or provision of new authorities, including authority for Federal agencies to issue regulations, known to be necessary or appropriate to enable full implementation of, and compliance with, U.S. obligations under NAFTA."43 The crux of the Government's contention with respect to this matter is that even though the Implementation Act refers to NAFTA in establishing a number of the laws necessary for the agreement's implementation, such reference simply incorporates certain written terms of NAFTA into duly-approved domestic legislation. The mere fact that the Implementation Act refers to NAFTA does not, according to the Government, make the Agreement and the Act one and the same.

In refuting the plaintiffs' contentions, outlined below, regarding whether or not portions of NAFTA are self-executing, the Government points to 19 U.S.C. § 3312(a) which states that no provision of NAFTA shall have effect if it is inconsistent with federal law. This, argues the Government, is a clear statement by Congress indicating that NAFTA itself was to have no effect on United States domestic law.

The Government's "causal connection" argument springs from its contention that the plaintiffs' complaint focuses on injuries that could only be caused by the Implementation Act as opposed to NAFTA itself. The Government cites a number of passages from the plaintiffs' complaint seeking relief from the "implementation" of NAFTA rather than from NAFTA itself, and notes that the plaintiffs have failed to identify any specific provisions of NAFTA itself that have contributed to their alleged injuries. Thus, the Government concludes that the plaintiffs' claims, while allegedly attacking the constitutionality of NAFTA itself, actually focus upon the provisions of the Implementation Act. This is significant in that, according to the Government, the plaintiffs cannot legitimately argue that the Implementation Act is unconstitutional. Therefore, according to the Government's analysis, the plaintiffs' claims are not challenging, and cannot challenge, the constitutionality of the true source of their injuries - the Implementation Act. Rather, plaintiffs' claims call for the elimination of NAFTA, an international agreement, while claiming injury from duly passed domestic legislation. Thus, the Government argues that the plaintiffs have failed to allege facts showing that their alleged injuries are "fairly traceable" to NAFTA itself.

b. The Plaintiffs' Response

The institutional plaintiffs note that their complaint alleges that they have suffered the following injuries as a result of the approval and implementation of NAFTA: (1) members of plaintiff Made in the USA Foundation have been impeded in their efforts to buy American-made goods; (2) members of plaintiffs USWA, Local 12L, and Made in the USA Foundation have lost their jobs; (3) plaintiff USWA has lost members as a result of those job losses; (4) plaintiff USWA and its members have been impeded in their efforts to negotiate collective bargaining agreements; and (5) plaintiff USWA has been forced to utilize scarce resources to counteract and seek redress for the various injuries that NAFTA has caused its membership. They therefore argue that the Government's basic lack of causal connection argument is without merit.

The institutional plaintiffs make several arguments with respect to the Government's arguments based on the distinction between NAFTA and the Implementation Act. They first contend that, despite the Government's attempt to characterize them otherwise, the claims contained in the amended complaint are directed at injuries caused by NAFTA itself. They note that even their original complaint seeks relief from injuries caused both by the making and implementation of NAFTA and that the amended complaint refers specifically to injuries caused by NAFTA itself. Further, they maintain that the attempt to separate NAFTA from the Implementation Act is an invention of the Government for the purposes of this case and that the alleged distinction represents an attempt to separate that which is inexorably bound together.

The plaintiffs point out that President Clinton's 1997 "Study on the Operation and Effect of the North American Free Trade Agreement" refers in general to "NAFTA's ... benefits," not to the benefits created by the Implementation Act. The Statement of Administrative Action submitted to Congress by the President (hereinafter "SAA" or "Statement of Administrative Action"),44 explaining the expected impact of NAFTA and describing the necessary implementing legislation acknowledged that, "as a result of NAFTA," some workers would lose their jobs. The Statement of Administrative Action also stated that the purpose of the implementing legislation was "to bring U.S. law fully into compliance with U.S. obligations under the Agreement."45 The plaintiffs also argue that the Implementation Act itself makes it clear that it cannot exist without NAFTA, pointing out that most of its provisions take effect only as of the date of entry into force of NAFTA, and that even its threshold provision, in 19 U.S.C. § 3311, acknowledges this dependence.46 These references to NAFTA represent more than an incorporation of NAFTA's provisions, argue the plaintiffs. Rather, they represent the complete dependence of the Implementing Act upon the making of the Agreement itself.

The plaintiffs further maintain that the dependence of the Implementation Act on NAFTA does not stop with the threshold provision of the Implementation Act. Rather, they contend that a number of the specific provisions of the Implementation Act are dependent upon NAFTA for their effectiveness. The plaintiffs' primary examples are the tariff provisions. While the Government characterizes the tariff provisions as completely independent of NAFTA itself, the plaintiffs point out that, in providing the President with authority to reduce tariffs in order to comply with NAFTA, Congress provided that the President could modify or reduce tariffs as "necessary or appropriate to carry out or apply articles 302, 305, 307, 308, and 703 and Annexes 302.2, 307.1, 308.1, 300-B, 703.2, and 703.3 of the [NAFTA]."47

The plaintiffs also argue that many of NAFTA's provisions are completely independent from the Implementation Act, such that, even if one were to attempt to view the Agreement and the Act as severable, NAFTA would still be playing a major role in the harm suffered by the plaintiffs. Examples of self-executing provisions within NAFTA, according to the plaintiffs, include: (1) commitments made under Articles 302, 307, 309 and 310, whereby the United States agreed not to increase any duty except as provided for in the Agreement and not to adopt certain other prohibitions or restrictions on imports, and (2) provisions under Chapter Eleven requiring Mexico to change its policies regarding foreign investment. Plaintiffs claim that although the law changed in the second example is Mexican law, the law clearly would not have been changed without the Agreement, and that the change has injured plaintiffs by causing American businesses and jobs to move to Mexico. According to the plaintiffs, the Government's distinction between NAFTA and its implementing legislation is both new and inaccurate. Thus, they contend not only that their claims clearly focus on both the Agreement and the Act, but that, to the extent that they do not, such failure makes no difference in light of the fact that they are part of an indivisible whole.

2. Redressability

The Government's primary standing-based argument with respect to the institutional plaintiffs focuses on whether the plaintiffs' injuries would likely be redressed in the event of a favorable ruling. As noted above, where "none of the relief sought by [the plaintiffs'] would likely remedy [their] alleged injury in fact, [the court] must conclude that [plaintiffs] lack standing . . ."48 The Lujan decision, among others, makes clear that "it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision." '49

The institutional plaintiffs seek two orders from this court: (1) a declaration that NAFTA was not approved in a constitutional manner and therefore is "null, void and of no effect"; and (2) an order directing the President to notify the governments of Mexico and Canada that, within thirty days, the United States is terminating its participation in NAFTA. The Government contends that a recognition of the distinction between NAFTA and the Implementation Act, as detailed above, reveals the fact that even if the plaintiffs did obtain a ruling declaring NAFTA itself unconstitutional, which is all the Government believes that plaintiffs can expect to get in the event of their success on the merits,50 such a ruling would have no effect on the validity of the Implementation Act. With respect to this court's ability to strike down NAFTA itself, the Government contends: (1) that this court lacks the requisite authority to order the President of the United States to notify Mexico and Canada of this nation's withdrawal from NAFTA; (2) that an order directed at subordinate executive branch officials would be insufficient to cease the implementation of NAFTA; and, finally, (3) whatever declaratory judgment the plaintiffs could obtain, be it in the form of an order directing the President to take an action, an order directed at subordinate officials, or a general order declaring NAFTA unconstitutional, is not likely to remedy the plaintiffs' alleged injuries, because such a judgment would not necessarily cause the governments of Mexico and Canada to change their practices and policies with respect to United States industry and products or cause businesses to alter their behavior or investments in a manner benefitting the plaintiffs. According to this view, any change in the policies of Mexico and Canada or in the practices of American businesses that the plaintiffs might foresee is purely speculative. As the plaintiffs must show that relief is "likely" to redress their injuries, the Government claims that they have failed to satisfy the third prong of the standing criteria as outlined in Lujan.

The plaintiffs suggest that this court has the power and authority to grant a declaratory judgment that the procedures used to approve NAFTA are unconstitutional. They cite In re Aircrash in Bali, 684 F.2d 1301, 1308-10 (9th Cir. 1982), cert. denied, 493 U.S. 917 (1989); United States v. Guy Capps, Inc., 204 F.2d 655, 659-60 (4th Cir. 1953), aff'd on other grounds 348 U.S. 296 (1955); and Swearingen v. United States, 565 F.Supp. 1019 (D.Colo. 1983), as examples of cases in which federal courts have addressed the constitutionality of treaty provisions or asserted their authority to do so, and point out that, according to the Restatement (Third) of the Law of Foreign Relations of the United States, § 302-303 (1987) (hereinafter "Restatement"), § 326(2), "Courts in the United States have final authority to interpret an international agreement for purposes of applying it as law in the United States." Thus, the plaintiffs argue that, given this court's authority to rule on the constitutionality of the provisions of an international agreement, the argument that an order of this court declaring the procedures used to approve NAFTA unconstitutional would have no practical effect is clearly misguided.

a. NAFTA/Implementation Act Distinction With Respect to Redressability

The Government contends that a ruling declaring NAFTA itself unconstitutional would have no effect on the validity or enforceability of the Implementation Act and that, as the plaintiffs have asked for and can receive no more than such a declaration, they have no standing in this case. The plaintiffs contest this contention on the same bases they contest the Government's claims with respect to the "causal connection" issue - they claim that they have, in fact, asked this court to declare both the Agreement and the Implementation Act unconstitutional and that, in any case, the two are indivisible.

The plaintiffs also argue that, to the extent that this court concludes that the Agreement and Act are distinct and that it can only make a ruling with respect to NAFTA itself, such a ruling would sufficiently redress their injuries. In so arguing, the plaintiffs maintain that if this court declares NAFTA invalid as United States law, the Agreement's self-executing provisions, cited above,51 will be invalidated. Furthermore, the plaintiffs assert that if NAFTA itself is held invalid, a number of the Implementation Act's provisions will, by their own language, be rendered inoperative. Of primary significance among such provisions, according to the plaintiffs, is the Implementation Act's threshold provision. The plaintiffs contend that the invalidation of this "key provision" would cause the remainder of the implementing legislation to become invalid under basic principles of severability. Under Scheinberg v. Smith, 659 F.2d 476, 481 (5th Cir. 1981), the "controlling inquiry" for purposes of a severability analysis, "is whether the legislature intended the offensive statutory provision to be an integral part of the statutory enactment viewed in its entirety." If so, the entire statute must be struck down.52

The principles of severability referenced by the plaintiffs would, according to the Government, not render the Implementation Act inoperative. The Government argues that even if this court did declare NAFTA itself (again, as opposed to the Implementation Act) unconstitutional under United States domestic law, the international obligation of the United States would remain, because this court, according to the Government, cannot direct the President to repudiate an international agreement.53 Thus, that the provisions of the Implementation Act that are dependent upon the completion of NAFTA would not, according to the Government, prevent the Implementation Act from taking effect.

Plaintiffs reply to the Government's contentions regarding the rule of severability as it applies to international obligations, arguing that the Government's position has no basis in case law. Further, plaintiffs contend that even if the Government were to be correct about the effect of a valid international obligation on the legislation, the Government's argument would still fail due to the fact that NAFTA, in the plaintiffs' view, was designed not to go into effect until the necessary legal procedures in each nation were completed. According to plaintiffs, because the United States never completed those procedures, NAFTA never went into effect and never became binding under international law.54

b. The Court's Power to Order the President to Perform an Act

According to the Government, the President, in signing NAFTA, caused the agreement to become binding on the United States under international law.55 As noted above, the Government argues that this court lacks the authority to compel the President to abrogate an international obligation of the United States.

While recognizing that in Reid v. Covert, 354 U.S. 1, 16-18 (1957), the Supreme Court asserted its right and responsibility to declare whether an international agreement is constitutional or otherwise has effect as domestic law of the United States,56 the Government, citing Franklin v. Massachusetts, 505 U.S 788, 802-03 (1992); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1866); and Swan v. Clinton, 100 F.3d 973, 976-77 (D.C. Cir. 1996), maintains that courts do not have jurisdiction to direct or enjoin the President in the performance of his official duties.57 The Government contends that the Supreme Court's language in Clark v. Allen, 331 U.S. 503, 509 (1947)58 ; Van Der Weyde v. Ocean Transp. Co., 97 U.S. 114, 118 (1936)59 ; Charlton v. Kelly, 229 U.S. 447, 474-76 (1913)60 ; and Terlinden v. Ames, 184 U.S. 270, 283 (1902)61 , supports its contention that courts cannot compel the President to terminate an agreement and abrogate obligations of the United States. Further, pointing to Flynn v. Shultz, 748 F.2d 1186 (7th Cir. 1984), cert. denied, 474 U.S. 830 (1985)62 , the Government also makes the assertion that this court cannot impinge upon the President's constitutional power by dictating how he will conduct this Nation's foreign affairs. According to this view of presidential power, even if this court were to conclude that the procedure used to approve NAFTA is unconstitutional, the President, by virtue of his foreign affairs powers, would be able to exercise his judgment in determining how to react to such a ruling. The Government argues that the President's right to exercise his discretion in choosing how to respond to a ruling of this court makes it far less likely that the plaintiffs' injuries would be redressed by their desired relief, even if this court did have the authority to grant such relief.63

c. The Judiciary's Ability to Order Subordinate Executive Department Officials to Act or Refrain From Acting and the Effectiveness of Such an Order in this Case

In addressing the Government's assertion that this court may not order the President to communicate the United States' withdrawal from NAFTA to Canada and Mexico, the plaintiffs not only argue that the issue of this court's authority vis-a-vis the President is unsettled, but that such an order is not required to achieve the results they seek. The plaintiffs thus argue, based on the D.C. Circuit's holding in Swan v. Clinton that this court may order subordinate executive officials not to enforce NAFTA's provisions. In Swan, the plaintiff sought relief against the President and other executive branch officials, seeking to have his removal from the Board of the National Credit Union Administration declared unlawful.64 The plaintiff sought an injunction ordering the President to reinstate him and/or "such additional relief as the court shall deem just."65 The court found that it was unclear whether or not it could order the President to reinstate a Presidential appointee who had been wrongfully dismissed.66 However, although the court acknowledged that the President alone had the authority to reinstate the plaintiff, the court found that it could get around the question of whether it could direct the President to act while still granting the plaintiff relief by ordering subordinate executive officials to act as if plaintiff had been reinstated.67 The court determined that this partial remedy would be sufficient for redressability "even recognizing that the President has the power, if he so chose, to undercut [the] relief."68 In further examining the propriety of its redressability determination, the court stated:

Id. at 981. Thus, in the event that this court determines it is unable to directly order the President to terminate this Nation's participation in NAFTA, the plaintiffs request an order instructing subordinate executive officials to cease their compliance with NAFTA's provisions.

The Government contends that the plaintiffs reliance on Swan v. Clinton is misplaced, arguing that this case is distinguishable from Swan in that, in order to provide the plaintiffs with redress, the relief in this case would have to run, in some instances, directly or indirectly against the President. For instance, the Government argues that only the President is given authority under the Implementation Act to make modifications to tariff rates pursuant to the provisions of NAFTA. An order directing subordinate officials to refuse to comply with NAFTA could, according to the Government, diminish the President's authority under such provisions and could, therefore, not provide the plaintiffs substantial relief. Further, the Government asserts that any order directing government officials to cease the implementation and operation of the Implementation Act and, thus, NAFTA, amounts to an abrogation of the United States' obligations under the Agreement - a decision that only the President is authorized to make.69

The Government argues that, given the Eleventh Circuit's declaration 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," '70 the combination of, (1) the plaintiffs' failure to specify which officials should be enjoined and which provisions of the Implementing Act and/or regulations those officials should cease to enforce, and (2) the delicate issues of foreign relations implicated in this case, counsels strongly against this court's finding standing in this case.71

The Government concedes that there are subordinate executive officials involved in the continued implementation and operation of NAFTA's provisions. However, the Government notes that the plaintiffs' complaint has failed to identify those officials who could be enjoined and that plaintiffs have failed to identify any specific provisions of the Implementation Act or regulations that the unidentified officials should cease to implement in order to redress the plaintiffs' injuries.72

d. The "Likely" Reaction of Foreign Governments, Foreign Business and United States Executive Department Officials to a Declaration that NAFTA is Unconstitutional

The plaintiffs argue that the Government's contentions regarding the potential reaction of the Canadian and Mexican governments is flawed for two reasons. First, plaintiffs maintain that even if a declaration invalidating NAFTA had absolutely no effect on the trade policies of Canada and Mexico, they (the plaintiffs) would still have standing as a result of the influence such declaration would have under domestic law, as noted above. Second, the plaintiffs argue that the suggestion that the United States' repudiation of NAFTA would have little or no influence on the policies of the other two parties involved in the agreement is far more unlikely and speculative than are plaintiffs' predictions. The plaintiffs note that the Statement of Administrative Action that accompanied the President's submission of NAFTA to Congress declared that NAFTA would "eliminate [] significant Mexican ... investment restrictions that have distorted investment flows ... for decades."73 The Statement also proclaimed that "U.S. investors will be entitled to the same treatment in Mexico as Mexican investors and will be protected in the case of expropriation."74 The Statement went on to claim that "Nothing about doing business in Mexico will be the same ... which is one of the key benefits of NAFTA, because doing business in Mexico until now has been so difficult."75 Finally, the Statement asserted that, "Without NAFTA, it will be business as usual with Mexico. U.S. firms will continue to face ... investment requirements ... and a complete lack of certainty about the conditions of doing business in Mexico."76 The plaintiffs thus argue that an order declaring NAFTA unconstitutional as a matter of United States law would clearly have an effect on Mexican trade policies with respect to the United States, noting that in Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978), the Supreme Court held that "a party seeking to invoke federal jurisdiction [is not required to] negate ... speculative and hypothetical possibilities ... in order to demonstrate the likely effectiveness of judicial relief."77

This court's authority to issue a declaratory judgment in this case redressing their injuries is, according to the plaintiffs, enough to satisfy the Supreme Court's standing requirements.78 Plaintiffs note that in Powell v. McCormack, the Court considered a claim by a Congressman who alleged that he had been unlawfully excluded from the House of Representatives, and who sought declaratory, mandatory and injunctive relief against certain House members, officials and employees. The Court determined that the plaintiff's request for a declaration that his exclusion was unconstitutional was sufficient, standing alone, to render the case justiciable.79 Plaintiffs argue that in this case, as in Powell, the declaratory relief sought is sufficient to establish standing. The plaintiffs also argue that several other cases have found that a request for declaratory relief is sufficient to establish standing even when it is unclear as to whether or not the government actor will be bound by the declaration. For example, the plurality opinion in Franklin v. Massachusetts, 505 U.S. 788 (1992), determined that a request for declaratory relief against an agency satisfied the redressability requirement despite the fact that a declaration would not directly bind the President or the other relevant executive and congressional actors. The Court concluded that the declaration was substantially likely to redress the plaintiff's injury because the Court found that it was "substantially likely that the President and other[s] ... would abide by an authoritative" declaratory judgment.80

Thus, despite being arguably unable to definitively predict what all of the repercussions of an order declaring NAFTA unconstitutional might be, the plaintiffs argue that they have clearly established that the nullification of NAFTA would eliminate provisions that injured them. The purpose of NAFTA was to bring about a sweeping change in the terms and conditions under which companies do business in Canada, Mexico and the United States. It was recognized by the President that the changes made in United States-Mexico trade policies would not have come about without NAFTA. The Statement of Administrative Action clearly acknowledges that some Americans would lose jobs as a result of the implementation of NAFTA. In 1997, the International Trade Commission recognized that some sectors and regions of the United States had suffered job "dislocations" and earnings reductions as a result of NAFTA.81

The plaintiffs argue that the Court's standing determination in Bennett v. Spear, 520 U.S. 154 (1997), repudiates the Government's assertion that executive department officials might choose to ignore this court's order. In Bennett, the Supreme Court found that the plaintiffs had met their burden on the redressability element of the standing analysis despite questions as to whether the agency involved would conform to a court order, stating that the plaintiffs' burden was "relatively modest at this stage of the litigation."82

The Government maintains that the plaintiffs' request for declaratory relief is insufficient to confer standing in this case, as the plaintiffs are still unable to show that it is "substantially likely" that the declaration will redress their injuries. The Government notes that the Declaratory Judgment Act does not discharge the plaintiffs from their obligation to establish that their claim can be redressed by a favorable decision. The plaintiffs' assertion that standing has been found to exist in cases where it was far from clear that the government actor involved would be bound by a court order is, according to the Government, patently false. The cases cited by the plaintiffs, comments the Government, all involved a finding that it was substantially likely that the government officials involved would abide by a declaratory judgment. Thus, in Bennett v. Spear, the Court found that the threat of substantial civil and criminal penalties had a "powerful coercive effect" on the agency involved, and therefore provided a sufficient prospect of remedial action.83 Similarly, the Court found in Franklin v. Massachusetts that it was "substantially likely that the President and other[s]" would abide by a declaratory judgment issued against the Secretary of Commerce.84 The Lujan decision, argues the Government, engages in an analysis that would be appropriate in this case. In Lujan, the Court found that because only the Secretary of the Interior would be bound by a decree (as the Secretary was the only named party), the decree sought by the plaintiffs would not redress their alleged injuries.85

The Government argues that even if NAFTA were declared unconstitutional, such declaration would not guarantee action by the governments of Canada and Mexico that would serve to remedy the injuries to plaintiffs' lost jobs, wages, and benefits or the plaintiffs' ability to purchase American-made goods. Along those lines, the Government alleges that, with respect to Mexico, the implementation of NAFTA was not the sole, nor necessarily the primary, factor in motivating American companies to move their operations to that country or in causing steelworkers to lose their jobs to Mexican workers. The Government points out that American steel manufacturers had, for some time before the implementation of NAFTA, been subject to the competitive pressure of European steelmakers, and that it is possible that the opening of the Mexican labor market did not replace American, but European, jobs. Further, noting the statements made by various congressmen in the Congressional Record, the Government asserts that American companies had been moving to Mexico well before the implementation of NAFTA.86

The Government argues that the plaintiffs' arguments are even more tenuous with respect to Canada, noting that prior to the approval and implementation of NAFTA, the United States-Canada Free Trade Agreement eliminated tariffs and eliminated or reduced other trade barriers between the two nations.87 Although the United States and Canada agreed to suspend the operation of the earlier agreement while both parties are participants in NAFTA, the suspension of NAFTA would cause the earlier agreement to once again come into force. Thus, the Government argues that the plaintiffs' complaints regarding the movement of businesses to Canada will surely not be remedied by the eradication of NAFTA.

The Government claims that Dellums v. U.S. Nuclear Regulatory Comm'n, 863 F.2d 968 (D.C. Cir. 1988) and Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258 (D.C.Cir. 1980), illustrate that, in this case, the plaintiffs' reliance on the predicted actions of independent actors - the governments of Mexico and Canada and the heads of businesses - makes a finding of redressability impossible. In Dellums, the D.C. Circuit considered a claim by 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 the plaintiff lacked standing because he did not and could not show that it was substantially likely that the relief he sought would redress his injury. The court found that the chain of inferences suggested by the plaintiff to show that a reversal of the regulatory commission's decision would remedy his situation was too tenuous to satisfy the redressability element of the standing inquiry.88 The court noted that even if the commission were to ban the importation of uranium from South Africa into the United States and the plaintiff could show that such a ban would benefit the uranium mining industry in the United States as a whole, such a showing would still fall short of the requisite showing to establish standing. The court found that the plaintiff would have to show that the revival in the industry would occur in New Mexico (the plaintiff's home state) and that it would benefit him if it did.89 Thus, the court held that a plaintiff does not have standing "when the effectiveness of the relief requested depends on the unforeseeable actions of a foreign nation."90

Similarly, in Goldschmidt the plaintiffs 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 plaintiffs had failed to establish that the United Kingdom would react by changing its demands or requirements, and that, therefore, the remedy was not substantially likely to redress the plaintiffs' injuries.91

The Government asserts that, as in Dellums and Goldschmidt, the plaintiffs have failed to show that declaring NAFTA unconstitutional would be substantially likely to cause Canada and Mexico to alter their trade policies or to cause American companies to return to or remain in the United States.92 Further, the Government alleges that the plaintiffs have failed to show that any such resurgence would truly remedy their injuries. This court's inability to control or predict the actions of Canada and Mexico and thus, its inability to determine whether a given remedy will redress the plaintiffs' injuries clearly shows that the plaintiffs lack standing in this case according to the Government. Further, according to the Government's reading of Allen v. Wright, Simon v. Eastern Kentucky Welfare Rights Organization, and Dellums, a change in economic incentives alone, without a showing that the change is likely to lead to a reaction that redresses the alleged injury, is insufficient to establish standing. Thus, the Government argues that the plaintiffs must not only show that the relief they seek is likely to result in a change in economic incentives to American companies in the trade policies of the United States, Mexico and Canada, they must also establish that the American companies that have moved or might move their operations to Canada or Mexico will either return to or remain in the United States.

The plaintiffs argue that the Government's reliance on Dellums and Goldshmidt is misplaced. In Dellums, the plaintiffs contended that a ban on the importation of uranium hexofloride, when combined with existing sanctions against South Africa, would "be the proverbial 'straw that breaks the camel's back' and lead to the collapse of the apartheid system."93 The court in Dellums found that it was completely implausible to suggests that halting the import of uranium from South Africa into the United States would lead to the collapse of apartheid and that it was unlikely that a ban on such imports would lead to any upsurge in the United States uranium mining industry, especially in light of the "dismal" state of the industry as compared to that found in other uranium mining nations.94 Plaintiffs also note that the miner in Dellums made "no claim that the market opening created by a ban on the importation of South African uranium hexafloride would not merely be absorbed by other foreign suppliers . . ."95 In Goldschmidt, the plaintiffs acknowledged that the United Kingdom would not agree to any modification of the flight limits that had been agreed to in the executive agreement at issue, thus leading the court to decide that a given remedy was unlikely to result in relief.96 Thus, the plaintiffs argue that the likelihood of response by a foreign nation in this case is clearly much greater than in Dellums or Goldschmidt. Here, unlike the other two cases, there exists a clearly established pattern of trade practices on the part of the relevant foreign nations which reveals what their behavior would most likely be like in the absence of the Agreement. Further, the plaintiffs again argue that even those involved in the approval and implementation of NAFTA are aware of the fact that the changes brought on by the Agreement would not have come if not for its existence.

The plaintiffs argue that Simon and Allen both involved similarly speculative claims. In Simon, the court found that the plaintiffs had not established that their injuries would be remedied by a declaration invalidating an Internal Revenue Service Revenue Ruling suggesting that hospitals did not have to provide free medical care to the indigent to qualify as charitable organizations under the Internal Revenue Code. The plaintiffs alleged only that the Revenue Ruling encouraged hospitals not to perform such services for the indigent. The court found that the connection between the Revenue Ruling and the injury was simply too tenuous to establish that the invalidation of the ruling would redress the plaintiffs' injuries.97 In Allen, the court found that an injunction ordering the IRS to deny tax exempt status to racially segregated schools was not likely to redress the plaintiffs' claimed injury - denial of an integrated education.98

The plaintiffs argue that the redressability claims addressed in Dellums, Goldschmidt, Simon and Allen, and, in fact, all the cases cited by the Government were far more speculative than those presented in this case.99 According to the plaintiffs, they have, unlike the plaintiffs in the above-noted cases, sought relief that will logically remedy their injuries by, to some degree, eliminating the clearly identified source of those injuries. Thus, the plaintiffs liken their redressability argument to those presented in cases such as Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150 (1970) and Investment Co. Inst. v. Camp, 401 U.S. 617 (1971), where the Court found that a company has standing to challenge a government decision that confers a benefit on its direct competitors without having to establish exactly what would transpire in the absence of that benefit.100

D. Second Conclusion of the Court

I conclude that the institutional plaintiffs have sufficiently alleged injuries that are fairly traceable to NAFTA and the Implementation Act and there is substantial likelihood that their injuries would be redressed by a favorable decision. I reject the Government's argument that NAFTA is separate and distinct from its implementing legislation. It is obvious that the Agreement and the Implementation Act were designed to be and intended to be applied in tandem.

If there is a violation, it is a continuing violation. Some previously accrued injuries may not be redressable, but that is not to say that future injuries may not be avoided. I cannot conclude that a declaration that NAFTA was unconstitutionally made and implemented would be ignored by the Executive Branch. The President, acting in good faith, could give the six month notice to revoke the Agreement. Such action would address and would be substantially likely to redress the institutional plaintiffs' injuries.101 I will not assume that the President will ignore established law. I will not conclude that the President, like Andrew Jackson, would state that since the court has made its decision, it could enforce it. I agree with Justice Story, who said in response, "The Court has done its duty. Let the Nation now do theirs. If we have a Government, let its command be obeyed; if we have not, it is as well to know it at once, and look to the consequences." I believe that if a controlling court declares NAFTA to be unconstitutional, that decree will be obeyed and it is substantially likely that at least some of the institutional plaintiffs' alleged injuries will be redressed.102

III. Political Question

The central issue in this case concerns the question of what procedure the United States must follow to adopt and implement a particular international trade agreement. According to the Government, this question is not the type of question that can be properly addressed by the judiciary. Rather, argues the Government, because the text of the Constitution fails to dictate the proper procedure and because the Constitution has clearly granted both the legislative and judicial branches an enormous amount of authority in the areas of foreign affairs and commerce, the choice of what procedure to use is committed to the discretion and expertise of the legislative and executive branches by virtue of the political question doctrine.

The political question doctrine is part of Article III's case or controversy consideration and has its roots in separation of powers concerns.103 The political question doctrine differs, however, from other "case or controversy" and jurisdictional analyses. As observed by Ronald Rotunda and John Nowak in their Treatise on Constitutional Law,

Rotunda and Nowak, 1 Treatise on Constitutional Law § 2.16 (2d ed. 1992).

In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court enumerated six features that can be used to identify a nonjusticiable case:

396 U.S. at 217. Any one of the above-listed characteristics may be sufficient to preclude judicial review.104

In Goldwater v. Carter, 444 U.S. 996 (1979), Justice Powell's concurrence suggested that the Baker analysis could be condensed into a three-question inquiry:

The Government has used this framework in addressing the political question issue. The plaintiffs have responded to the Government's assertions with respect to each of the questions and, in addition, provided a general argument in favor of the court's jurisdiction in this case.

The considerations raised by the political question doctrine, although jurisdictional in nature, require the court, in this case, to examine issues that are central to the merits of the case. For instance, much of the discussion concerning the "textual commitment" prong of the Baker analysis will involve language, arguments and case citations that are repeated, to some degree, in the parties' discussions on the merits of the case.106 Some repetition is regarded by the court as a necessary evil, as it is important that the political question issue be addressed prior to a full discussion of the merits and as the parties have often used the same language, arguments and citations for different purposes in addressing the two issues.

A. Textual Commitment: The Authority of the President and Congress in the Areas of Foreign Affairs and Commerce

The Government argues that this case presents a classic example of a matter committed by the text of the Constitution to the political branches of the federal government, pointing to the vast amount of power conferred on the President and Congress by the text of the Constitution in the areas of foreign affairs and foreign commerce.

The Supreme Court has 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."107 In Department of Navy v. Egan, 484 U.S. 518 (1988), the Court noted that it has "recognized 'the generally accepted view that foreign policy was the province and responsibility of the Executive." '108 The breadth of the President's foreign affairs powers rise from his role as Chief Executive,109 and Commander in Chief.110 The President's authority in the foreign affairs arena is further strengthened by his enumerated powers to "make Treaties" with the advice and consent of two-thirds of the Senate present,111 to "appoint Ambassadors ... and Consuls,"112 and to receive Ambassadors and other public Ministers.113

Congress's enumerated powers in the realm of foreign affairs include its power to declare war,114 its broad power to regulate commerce with foreign nations,115 and the Senate's advice and consent role in the constitutionally-outlined treaty-making process.116 Other relevant delegations of power, according to the Government, include the Congress's power to raise revenue,117 and the power to lay and collect taxes, duties, imposts and excises.118

The Government asserts that the textual grants of authority to the President and Congress in the areas of foreign affairs is comprehensive, placing plenary authority over international agreements in the hands of the political branches of the federal government, and leaving no role for the Judiciary.119 The Government further notes the Supreme Court's recognition that the power of the political branches of the federal government includes the authority to conclude international "agreements that do not constitute treaties in the constitutional sense," as noted in United States v. Curtiss-Wright Export Corp..120 Based on the broad scope of the Presidential and Congressional powers specifically provided for in the Constitution's text and the Supreme Court's recognition of the power of the political branches to complete non-treaty international agreements, the Government argues that foreign affairs and foreign commerce are, in terms of the Baker criteria, areas committed by the text of the Constitution to the Executive and Legislative branches, and that the plaintiffs' claims are, therefore, nonjusticiable.121

The Government argues that, despite providing a lengthy exposition on the origins of the Treaty Clause (below), the plaintiffs fail to make any attempt to reconcile their interpretation of the Clause with the enumerated powers of both the President and the Congress, and that the plaintiffs' arguments therefore fail to address the issue of whether and to what extent Congress's broad foreign commerce power overlaps, limits or conflicts with the provisions of the Treaty Clause. Even if they attempted to do so, argues the Government, the plaintiffs would fail to establish the existence of any limits on the power. The Government notes that neither the political branches nor the courts have ever recognized such limitations, and asserts that Justice White's concurrence in Downes v. Bidwell, 182 U.S. 244, 313 (1901), supports the contention that the Treaty Clause should not be interpreted to curtail Congress's power under the Foreign Commerce Clause.122

1. Plaintiffs' Response

The plaintiffs do not contest the Government's assertion that the political branches have substantial authority over foreign affairs and commerce. However, they contend that, as in I.N.S. v. Chadha, 462 U.S. 919 (1983), what is at issue 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."123 Thus, it is "error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance."124 The plaintiffs argue that the "textual commitment" element of the Baker analysis requires more than a showing that the federal government has plenary authority in an area. Further, while the Government stresses the importance of the United States' ties with the foreign nations involved with NAFTA and other international agreements, the plaintiffs note that the Supreme 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."125 Thus, courts have the authority to invalidate treaties that violate the Constitution, despite the power of the Executive and Legislative branches in the areas of foreign affairs and commerce.126

Suggesting that the terms of the Treaty Clause allow the political branches of the government to exercise unfettered discretion in determining whether to subject a particular international agreement to the rigors of the Clause's procedural requirements is to ignore the language of the Constitution, according to the plaintiffs. The plaintiffs contend that, if an agreement constitutes a treaty within the meaning of Article II, there is only one way in which it can be adopted - the Treaty Clause. Thus, as stated by the Supreme Court in Weinberger v. Rossi, 456 U.S. 25 (1982), ''[s]ubmission of Art. II treaties to the Senate for ratification is ... required by the Constitution."127

Plaintiffs point to the Court of Claims decision in Atkins v. United States, 556 F.2d 1028 (Ct.Claims 1977), as further support for their contention that the Government's "textual commitment" argument is deeply flawed. In Atkins, the court faced the question of whether a claim that a judicial pay act violated the Article III Compensation Clause was nonjusticiable. The court recognized that the Constitution placed the power to set judges' salaries in the hands of the legislative and executive branches, but noted that the grant of authority contained an express limitation on that power, declaring that "those salaries, once set, shall not be diminished."128 The court thus questioned:

Id. The plaintiffs argue that the Treaty Clause contains the same type of pointed limitation on the political branches' authority to conclude treaties, requiring two-thirds Senate approval.

With respect to the Government's citation to Downes v. Bidwell, the plaintiffs simply point out that the language cited is that of a concurring justice, and that the case involved violations of the structure of constitutional provisions not at issue in this case.

B. Judicially Manageable Standards

The Government also contends that a decision as to whether a particular international agreement should be approved as a treaty or through some other procedure would require this court to consider areas beyond its judicial expertise, as there are, according to the Government, no judicially manageable standards for determining whether an international agreement should be approved pursuant to the Treaty Clause as opposed to some other procedure. While recognizing that it is the role of the courts to interpret the Constitution, the Government argues that Baker v. Carr clearly establishes that this role does not empower the courts to make decisions in the absence of judicially manageable standards.129 Both the constitutional text and historical precedent support this conclusion, according to the Government.

Citing Marbury v. Madison, 5 U.S. (1 Cranch) 60 (1803), Powell and Chadha, the plaintiffs respond that interpretation of the text of the Constitution is not only judicially manageable, but is at the very essence of the judiciary's duty. Writing for a three-judge district court panel in Dyer v. Blair, 390 F.Supp. 1291 (E.D.Ill. 1975), Justice Stevens wrote, "The mere fact that a court has little or nothing but the language of the Constitution as a guide to its interpretation does not mean that the task of construction is judicially unmanageable."130 According to the plaintiffs, the Supreme Court's opinions in United States v. Munoz-Flores, 495 U.S. 385, 395-95 (1990), Powell, 395 U.S. at 548-49 and Chadha, 462 U.S. at 942, support 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.131 Thus, argue the plaintiffs, 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.

1. The Government's Manageability Arguments With Respect to the Constitutional Text and Judicial Precedent

The Government notes that although the Constitution does not provide definitions for the terms "treaties," "agreements," and "compacts," it does mention each term. The term "treaty" is used both in the Treaty Clause,132 and in the Compact Clause.133 The Treaty Clause 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 Compact Clause refers to the power of the states to deal with foreign powers, completely prohibiting the states from making "treaties" with foreign nations. However, the Compact Clause differentiates between "treaties" on the one hand, and "agreements" and "compacts" on the other, providing that states may not enter into "agreements or compacts" with foreign powers without the consent of Congress. Thus, while completely preventing states from entering into "treaties" with foreign powers, the Constitution allows them to enter into "agreements or compacts" provided they obtain the consent of Congress. With respect to the federal government's involvement in international agreement-making, the Treaty Clause, as noted above, explicitly outlines a process by which at least some treaties may be made. However, the text of the Constitution does not define the term "treaties", does not delineate the difference between treaties and those other international agreements it mentions, does not address the procedures by which other international agreements might be completed, and does not explicitly state that treaties are the exclusive means by which the federal government may make agreements with foreign powers or that the Treaty Clause procedure is the only manner in which a treaty may be made.

The Government contends that the lack of specificity within the constitutional text has resulted in a lack of judicially manageable standards for the resolution of this case, and that Supreme Court case law has borne out this proposition. In Goldwater v. Carter, 444 U.S. 996 (1979), members of Congress challenged the President's unilateral termination of a treaty. 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 although the Constitution provides a clear outline of the Senate's role in the making of a treaty, the document fails to discuss the Senate's (or Congress's) role in the termination of treaties. 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 judicially manageable standards.134

Similarly, in Nixon v. United States, 506 U.S. 224 (1993), the Court found that because the Constitution did not place any limits on the Legislative branch's discretion in dictating the procedures surrounding impeachment proceedings, a former judge's claim, that the rules and procedures used by the Senate in trying impeachments were improper, was not justiciable. The Court noted that in Powell v. McCormack it had held that the judiciary could review the House of Representatives' finding as to a Member's qualifications because the Constitution specifically addressed those qualifications. The Nixon court contrasted the textual constraints placed upon the House membership qualifications with those placed upon the impeachment process, pointing out that the Constitution makes no mention whatsoever of the process by which the Senate is to try impeachments.135 The Government argues that this case is analogous to Goldwater and Nixon in that the constitutional provision at issue does not provide an identifiable textual limit on the authority granted by the Constitution. Just as the Impeachment Clause fails to identify the proper process by which to try impeachments and the Treaty Clause fails to outline the Senate's role in the abrogation and/or termination of treaties, the Treaty Clause fails to explicitly outline the circumstances, if any, under which its procedures must be adhered to. Thus, argues the Government, this case presents a nonjusticiable issue.

The Government urges this court to follow in the footsteps of Dole v. Carter, 569 F.2d 1109 (10th Cir. 1977). In Dole, the Tenth Circuit "decline[d] to enter into any controversy relating to distinctions which may be drawn between executive agreements and treaties," in determining that a claim challenging the constitutionality of an international agreement made without the consent of two-thirds of the Senate was nonjusiciable. The Government claims that the plaintiffs' characterization of the Tenth Circuit's Dole decision is misleading.136 The issue in the case was "whether the understanding between the United States and Hungary is a treaty or an executive agreement not requiring Senate action."137 Given the Tenth Circuit's express recognition of the controversy surrounding the distinction between executive agreements and "treaties," and its refusal to address the issue, the Government argues that the Dole decision is directly applicable to this case.

2. Plaintiffs' Response to the Government's Assertions Regarding Manageability and the Judiciary's Ability to Construe Constitutional Text

The plaintiffs contend that the absence of a definition for the term "treaty" within the Constitution's text does not confer unfettered discretion upon the political branches to decide whether a particular agreement is or is not a treaty requiring Treaty Clause procedures. The Supreme Court has, according to the plaintiffs, repeatedly rejected suggestions to the contrary with respect to other constitutional provisions. Thus, 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.138

Similarly, in United States v. 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.139 The Constitution does not provide any guidance on exactly what kinds of bills 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 question, stating:

495 U.S. at 395-96.

Finally, despite the fact that "[t]he line between 'inferior' and 'principal' officers [as used in Article II, Section 2, clause 2 of the Constitution] is one that is far from clear, and the Framers provided little guidance as to where it should be drawn,"140 the Supreme Court has found itself able to define the parameters of such terms and, consequentially, to interpret the effect of the provision.141

The plaintiffs contend that, contrary to the Government's position, the Supreme Court's Nixon and Goldwater decisions are consistent with their analysis of Powell and Chadha, supra. The Impeachment Clause at issue in Nixon provides that "[t]he Senate shall have the sole power to try all Impeachments."142 The Clause contains three express procedural safeguards (that the Senators be under oath or affirmation, that two-thirds of the Senate vote to convict, and that the Chief Justice preside over any impeachment of the President). The plaintiffs argue, based on pages 229-36 of the Nixon decision, that the Court concluded that the challenge to the Senate's decision to delegate certain proceedings to a committee was non-justiciable as a result of its finding that the Framers had made a considered judgment to vest in the Senate the sole power to try impeachments subject only to the three safeguards. Also significant, according to the plaintiffs, is the Nixon Court's express recognition that, unlike Powell, a decision that the case was nonjusticiable would not allow the Senate to "defeat" any "separate provision of the Constitution."143

In Goldwater, Justice Rehnquist, one of the four justices who concluded that the question of whether the President had the power to unilaterally terminate a treaty was a nonjusticiable political question stated 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."144 The plaintiffs note that even given this distinction, four justices expressly disagreed with the position that the case involved a nonjusticiable political question. The ninth justice, Justice Marshall, simply concurred in the result of the case, leaving no indication of his position on the political question issue. Thus, argue the plaintiffs, Goldwater fails to support the Government's claim that this case involves a political question beyond the reach of the Judiciary.

The plaintiffs contest the Government's reliance on Dole v. Carter, explaining that the Dole court's conclusion was limited to the facts before it, that the scope and basis of the court's ruling is difficult to discern, and that this case, unlike Dole, does not require the court to determine the wisdom of the underlying alleged political decision. In Dole, the Tenth Circuit refused to decide whether an agreement by the President to return the Hungarian crown jewels to that country constituted a treaty requiring Senate ratification. In so refusing, the court found that there was "no way for [the court to] ascertain [] the interest of the United States ... in the controversy."145 As noted above, the Dole court specifically limited its decision to the facts before it. Further, while the Dole court believed that a ruling in that case would have required the court to examine the wisdom of the President's action, this case, according to the plaintiffs, involves no such issue. The plaintiffs assert that the question presented in this case is purely a matter of law, requiring the court to undertake a regular judicial function. They argue that to the extent the Dole decision suggests otherwise, it conflicts with those cases cited above and should be ignored.

3. Historical Practice

The Government, as noted above, argues that historical precedent supports the process used to negotiate, approve and implement NAFTA. In the absence of judicially manageable standards for deciding the constitutionality of the procedure used, the Government asserts that the courts have no role to play in determining what procedure should be used. Thus, rather than asserting its own views, the Supreme Court has, in cases such as Mistretta v. United States, 488 U.S. 361 (1989) and The Pocket Veto Case, 279 U.S. 655, 689-90 (1929), given considerable weight to the established practices of the political branches in their respective areas of expertise.146

The Government contends that long-standing practice supports the contention that international trade agreements such as NAFTA may be validly concluded through the procedure used in this case. This procedure has its roots, according to the Government, in the grants of authority given to the President by Congress in the various trade acts passed early in this century. Such acts included the McKinley Tariff of 1890, authorizing the President to make determinations with regard to tariffs, the Dingley Tariff of 1897,147 doing the same, and the Reciprocal Trade Act of 1934,148 granting the President significant authority in the completion of tariff arrangements, including the power to conclude executive agreements.

Beginning in the 1940's, international agreements negotiated by the President began to be submitted to the entire Congress for majority approval. The Atomic Energy Act of 1946,149 contained a provision stating that international agreements approved by Congress would supersede inconsistent provisions of the Act. The Arms Control and Disarmament Act of 1961150 authorized the President to enter into multilateral agreements to be presented to Congress for subsequent approval, as did the Trade Expansion Act of 1962.151

The Government notes that an impasse often resulted when the President submitted pre-negotiated international agreements to Congress for majority approval. Often, Congress would be unwilling to approve international agreements as negotiated and settled upon by the President and the foreign governments involved.152 As Deputy Special Representative for Trade Negotiations William R. Pearce stated in 1973, "our trading partners are reluctant to negotiate with us until they have some assurance that agreement can be implemented, and implemented rather promptly."153

To resolve the problems caused by the occurrence of and potential for impasse, Congress, in the Trade Act of 1974, created a streamlined legislative mechanism for the approval of international trade agreements. The result was the "fast-track" procedure. In order to avoid conflict, calls for renegotiation, and stalling during the approval phase, the fast track procedure calls for the President to confer with the Congress and the private sector before and during the negotiating process in exchange for a prompt vote on the unamended proposed agreement and accompanying legislation.154 The process is considered valuable and efficient because:

H.R. Rep. No. 103-361(I), at 11, reprinted in 1993 U.S.C.C.A.N. at 2561.155

Since its creation, the fast track procedure has been used extensively in the negotiation and approval of major international trade agreements.156 Declaring the process used to approve of NAFTA unconstitutional would, according to the Government, repudiate 24 years worth of international trade agreements and reject a procedure that both the Executive and Legislative branches consider both constitutional and effective.157

The Government suggests that, in employing the fast track procedure, the President's authority is "at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."158 Based on the President's broad authority, created by virtue of Congress's delegation of power, the Government argues that declaring the use of the fast track procedure unconstitutional would be to declare that "the Federal Government as an undivided whole lacks power" to execute international agreements such as NAFTA.159 Such a conclusion would, according to the Government, fly in the face of the Supreme Court's decisions in Mistretta and Youngstown by failing to give proper deference to the decisions of the Executive and Legislative branches.

4. Plaintiffs' Historical Practice Argument

The plaintiffs maintain that the cases cited by the Government in support of their assertion that historical practice weighs in favor of a finding that this case involves a nonjusticiable political question do not address justiciability, but consider historical precedent in judging the constitutionality of a statutory scheme or in arriving at a proper interpretation of constitutional provisions. Thus, the plaintiffs assert that the Government has failed to establish that historical precedent is relevant to the political question determination.

In further addressing the Government's historical practice argument, plaintiffs note that there exists general agreement as to the fact that there are some kinds of international agreements that do not require approval pursuant to the strictures of the Treaty Clause. The fact that the Government has provided a list of agreements not passed pursuant to the Treaty Clause is, therefore, unremarkable, according to the plaintiffs. However, the plaintiffs argue that the exception allowing some international agreements to escape Treaty Clause procedure applies only to "such international agreements as do not constitute treaties in the constitutional sense."160 Thus, the Weinberger court stated that "[s]ubmission of Art. II treaties to the Senate for ratification is ... required by the Constitution."161 Plaintiffs argue that although some agreements fall within the exception, this does not suggest that agreements of the nature and scope of NAFTA may be treated as anything other than Article II treaties subject to the requirements set out in the Treaty Clause.

The plaintiffs argue, however, that the Government's argument that numerous significant international agreements have, in the past 24 years, been passed as Congressional-Executive agreements (agreements negotiated by the executive and approved by a majority of Congress) pursuant to the fast track procedure, is greatly weakened by the fact that each of the agreements cited by the Government received approval of two-thirds of the Senate.162 Thus, argue plaintiffs, in each of the instances cited by the Government, the question of whether the agreement was properly approved could not have been addressed. Further, in the one instance where there was a question as to whether two-thirds approval would be achieved - the establishment of the World Trade Organization - several Senators voiced the view that the agreement was a treaty and that it could not be adopted without a two-thirds majority in the Senate.163

While the Government asserts that the trade agreements it cites are of a scope similar to NAFTA, the plaintiffs point out that the House Ways and Means Committee described NAFTA as "the most comprehensive trade agreement ever negotiated . . ." Further, the plaintiffs note that numerous agreements that are much less comprehensive in nature than NAFTA have been categorized by Congress and the President as treaties. Specifically, they note agreements regarding investment practices.164 The plaintiffs argue that the practice of categorizing such agreements as treaties is relevant in that Chapters 11-16 of NAFTA contain provisions pertaining to investment practices that are far more comprehensive than those contained in the other agreements that have been acknowledged to be treaties, and the investment provisions of NAFTA comprise one of the Agreement's eight parts.

Plaintiffs go on to suggest that to the extent some agreements that should have been approved as treaties have been implemented pursuant to lesser procedural safeguards, this court, like the Chadha court, is authorized to put a stop to what the plaintiffs describe as an evasion of constitutional requirements. "That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date."165

C. Prudential Considerations Involved in the Political Question Analysis

The Government makes note of several other factors that it considers relevant to the political question issue, including: (1) the necessity of federal uniformity; (2) the potential effect of an adverse judicial decision on the nation's economy and foreign relations; (3) the reliance of governments and businesses on the positive effects of NAFTA; and (4) the respect courts should pay to coordinate branches of the federal government.

1. The Necessity of Federal Uniformity

According to the Government, this case presents a situation in which it is important for the branches of the federal government to speak with one voice. In Baker v. Carr, the Supreme Court recognized the special importance of the United States speaking with one voice with respect to foreign affairs.166 The Court has further observed that "federal uniformity is essential" in the area of foreign commerce,167 and that "the Federal Government must speak with one voice when regulating commercial relations with foreign governments."168 A decision of this court declaring NAFTA unconstitutional would, the Government argues, clearly disturb this principle. The Government suggests that this consideration should be seen as weighing rather heavily in favor of a finding that this case involves a non-justiciable political question.

Without directly rejecting the idea that, in many cases, there exists a legitimate interest in having the federal government speak with one voice, the plaintiffs argue that the theory has no place in the analysis of the treaty-making procedures. To begin with, they note that treaty-making, as outlined in the Constitution, involves two distinct voices - that of the Senate and that of the President. The plaintiffs contend further that their suit seeks only to ensure that the federal government allows those full voices that are authorized by the Constitution to be heard with respect to the treaty-making process.

2. The Effect of an Adverse Decision of the Economy and Foreign Relations of the United States

The Government contends that a decision of this court in opposition to the positions of the Executive and Legislative branches could have a profound negative effect on this nation's economy and ability to deal with foreign powers. Granting plaintiffs' requested relief in this case would not only affect the validity of NAFTA, but would potentially undermine every other major international trade agreement made in the past twenty to thirty years.169 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."170 The Government argues that the Judiciary should refuse to diverge from the course set by the other two branches of government.

3. Reliance of Governments and Businesses on the Positive Effects of NAFTA

According to the Government, the myriad individual decisions and governmental measures which have been carried out in reliance on NAFTA and the positive effect of such changes,171 demonstrate "an unusual need for unquestioning adherence to a political decision already made."172 NAFTA took effect on January 1, 1994. The Government argues that since that time, the governments, businesses and citizens of the United States, Mexico and Canada have conducted their business affairs in reliance on the lowered tariffs and reduced trade restrictions resulting from NAFTA's implementation. A decision declaring NAFTA unconstitutional could clearly have a destabilizing effect on governmental relations and business in all three countries and should thus, according to the Government, be avoided.

4. The Respect Due to Coordinate Branches

Finally, the Government argues that a review by the Judiciary of the process by which the President and Congress enter into international agreements would intrude upon the respect due coordinate branches of government. Justice Powell, in concurring with the Goldwater decision, concluded that the Court was not in a position to decide the constitutionality of the approval process of an agreement where the political branches acted in cooperation to conclude such an agreement.173 Similarly, Justice Rehnquist's Goldwater concurrence stated 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."174 Since no such impasse has been reached with respect to international trade agreements, the Government argues, this court should defer to the decisions of coordinate branches of government. Along those lines, the Government notes that the Senate has not insisted upon its alleged right to approve NAFTA and other trade agreements by a two-thirds margin. Again citing Justice Powell's Goldwater concurrence, the Government contends that when the Senate sees no reason to contest the President's decision to submit an agreement to the whole Congress, "it is not [the Court's] task to do so."175 Thus, the Government argues that, as in Goldwater, the Judiciary should refuse to intervene.

The plaintiffs, in responding to the Government's argument on this issue, simply state that, according to Powell, "Our system of government requires that federal courts on occasion interpret the Constitution in a manner" that conflicts with the actions of the political branches, and that such conflict "cannot justify the courts' avoiding their constitutional responsibility."176

D. Plaintiffs' General Political Question Argument

The plaintiffs argue that this case does not involve a political question, but a crucial question of constitutional law, contending that since Marbury v. Madison, 5 U.S. (1 Cranch) 60 (1803), it has been recognized that "[i]t is emphatically the province and duty of the judiciary to say what the law is" in the United States.177 Further, the plaintiffs argue that it is "the province and duty of the judicial department to determine ... whether the powers of any branch of the government, ... have been exercised in conformity to the Constitution; and if they have not to treat their acts as null and void."178 Baker tells us that the purpose of the political question doctrine is to prevent courts from intruding into areas that are constitutionally committed to a coordinate branch of government.179 The plaintiffs contend that the Government's entire political question argument is misguided in that, although the doctrine does prevent the courts from intervening in areas where a coordinate branch of government has plenary authority that is not somehow limited by the Constitution, the doctrine does not, under any circumstances, act to bar review of acts by the political branches that effectively nullify constitutional limits on their power.

The plaintiffs note that this case clearly involves questions of whether the Constitution requires treaty ratification to take a certain form and whether an agreement that is alleged to be a treaty was ratified according to constitutional mandates. Thus, this case, according to the plaintiffs involves an issue clearly addressed in the Constitution and clearly requiring constitutional interpretation by the Judiciary. The plaintiffs claim that because the constitutional provision at issue was intentionally crafted to protect minority interests, there exists no reason to expect that the majority of Congress or the President would raise objections to the elimination of such protection. Under this analysis, the fact that the President and Congress have mutually agreed to implement the fast-track procedure and ignore the Treaty Clause does not legitimize the practice. Rather, it presents an illustration of that which the Framers allegedly meant to avoid - majority control over the creation of treaties. The plaintiffs point out that absent judicial intervention, the one-third of the Senate that the provision was meant to involve will never be able to assert its rights given the majoritarian policy that is currently being employed.

1. The Framers' Adoption of the Treaty Clause

An examination of the history surrounding the adoption of the Treaty Clause, according to the plaintiffs, reveals that the Framers, in adopting the Clause, were not as concerned with procedural issues as they were with the allocation of power that the procedure would create. The decision to put the treaty-making power in the hands of the Senate and to require a supermajority for approval was, according to the plaintiffs, based on states' rights concerns and cannot, therefore, be waived by the President and Congress in the interests of expediency and majoritarianism. The plaintiffs' rendition of the delegates' discussions concerning the treaty-making power during the Constitutional Convention suggests that the decisions to place the power in the hands of the Senate and to require a supermajority vote were: (1) based on the Framers' express concern with the formation of commercial treaties and experiences with regional tensions under the Articles of Confederation; (2) the result of careful consideration; and (3) considered extremely significant by the Framers.180

The plaintiffs' discussion of the delegates' adoption of the Treaty Clause is based primarily, if not completely, on the research contained in an article written in 1979 by Arthur Bestor, a History Professor Emeritus at the University of Washington.181 According to Bestor, the initial drafting of the Treaty Clause at the Constitutional Convention was undertaken by the Committee of Detail, which was assigned the task of preparing a draft of the Constitution after the Convention had agreed on certain broad principles.182 The Committee began its work with a memorandum prepared by Edumund Randolph of Virginia, which contained a list of "powers destined for the Senate peculiarly," two of which were "to make treaties of commerce" and "to make peace."183 In the committee's final draft, the language was broadened to assign to the Senate the power "to make treaties."184 The proposed draft, as submitted by the Committee, was objected to by the larger States, as they felt that they "would not have the weight to which they felt entitled when it came to the making ... of commercial treaties."185 When the draft was reported to the Convention floor, Gouverneur Morris of Pennsylvania immediately proposed an amendment that would give the House a role in effecting treaties.186 The amendment was defeated,187 but this and other issues concerning the draft Treaty Clause proved so contentious that the entire provision was referred back to the Committee.188 When the matter returned to the floor - this time after revisions by the Committee on Postponed Parts - the proposed Treaty Clause, while giving the President a role in the treaty-making process, continued to exclude the House from participation.189 James Wilson of Pennsylvania then proposed, as Morris had before, that the House be included in the treaty-making process, but the proposal was again voted down.190

Bestor's rendition of the proceedings leading to the adoption of the Treaty Clause depicts the decision on whether to require a majority or a supermajority for the approval of a treaty as more contentious than the decision to leave the matter solely in the hands of the Senate. However, the majority vs. supermajority debate, according to Bestor, involved sectional biases and interests rather than size-based concerns.191 As their interests often varied significantly from the more industrialized and more numerous Northern States, Southern States sought to require supermajority approval for the ratification of treaties.192 Bestor argues that the Framers' concerns stemmed from one specific incident that occurred just a year before the Constitutional Convention. The incident involved a proposed commercial navigation treaty with Spain, which was viewed as benefitting the more numerous Northeastern States at the expense of the Southern States. As the Articles of Confederation required that any treaty be approved by nine of the thirteen states (more than a two-thirds majority), the Southern States were able to prevent the ratification of the agreement. This incident allegedly revealed the importance of a supermajority requirement to the Southern States, who realized that a majority vote in the Senate could result in a foreign policy skewed in favor of the North.193

The initial draft of the Treaty Clause, as prepared by the Committee on Detail, did not include a two-thirds requirement for treaty ratification.194 When the Treaty Clause was referred to the Committee on Postponed Parts, a two-thirds requirement was added.195 The proposed alteration met considerable resistance, with Wilson objecting to "the power of a minority to control the will of the majority,"196 and Rufus King arguing that the requirement that all treaties be approved by the President created a "check that did not exist in [the Articles of Confederation]," making it less crucial to insist upon the supermajority requirement as a check.197 Suggestions for revision of the measure involved proposals to return to the simple majority requirement and proposals to require two-thirds of the entire Senate, rather than just those Senators present. In the end, the delegates adopted a provision requiring approval from two-thirds of those Senators present.198

Thus, the record indicates, according to Bestor, that the Framers carefully considered the decision to require a two-thirds Senate majority for the treaty-making process, and made the decision with the intention of promoting minority interests.199 This requirement was seen as especially important in the ratification of commercial agreements.200 Thus, according to the plaintiffs, the Framers explicitly outlined a specialized procedure limiting the political branches' admittedly vast power over the making of international agreements that amount to treaties.201

2. Judiciary's Power to Intervene to Rectify the Political Branches' Failure to Adhere to Constitutionally-Mandated Procedures

The plaintiffs argue that when the political branches of government have failed to adhere to specific constitutional limits on their authority, the courts are empowered to resolve a claim based on that failure. In making this argument, the plaintiffs call attention to the Supreme Court's decisions regarding a number of constitutional provisions, including the Qualifications Clause,202 Article I's outline of the legislative process,203 and the Appointments Clause.204

In Powell, as noted supra, the House had attempted to "exclude" by majority vote a duly elected representative who satisfied the criteria to serve as a representative as outlined in Article I, § 2. The Constitution, however, only permits the House to "expel" members by a two-thirds vote. The Supreme Court held that the political question doctrine did not bar review despite the fact that the Constitution is silent on the proper procedure for "exclusion," and that decision of the matter would intrude into the innermost workings of a coordinate branch. Because the relevant historical materials indicated that the Framers inserted limits on Congress's ability to expel members for the purpose of preventing it (Congress) from overruling the desires of the electorate, the Powell court determined that the Constitution could not be read to "effectively nullify" those limitations by granting Congress unbound and unreviewable discretion to exclude representatives it found objectionable.205 The Court held that:

395 U.S. at 548. The Court went on to note that:

Id. at 548-49. The plaintiffs contend that the Judiciary's responsibility to intervene in contravention of a practice employed by the political branches of the government is even more acute when, as in both Powell and this case, a minority's interest is at stake.

Chadha involved the question of whether the Congress could include a legislative veto provision within a statute, thus altering the method by which legislation is to be passed pursuant to Article I. The Court found that the issue in the case was not whether Congress enjoyed plenary authority over matters involving immigration (which it does), but whether "Congress [had] chosen a constitutionally permissible means of implementing that power."206 Dismissing the argument that the Judiciary should defer to the political departments on matters of procedure or form, the Court stated that "[n]o policy underlying the political question doctrine suggests that Congress or the Executive, or both acting in concert and in compliance with Article I, can decide the constitutionality of [their action]; that is a decision for the courts."207

The Constitution's Appointments Clause appears in the same sentence of Article II, Section 2 as the Treaty Clause. The plaintiffs contend that the Supreme Court's jurisprudence with respect to the application of the Appointments Clause's structural restraints lends credence to their contention that this court has the authority and responsibility of addressing whether the structural restraints of the Treaty Clause should be applied in this case. The Court has held that the Appointments Clause imposes a "significant structural safeguard," carefully apportioning the power to appoint United States officers between the Executive and Legislative branches.208 The Court has concluded that:

Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 880 (1991). The plaintiffs argue that the same reasoning should be applied to this court's analysis of the political question doctrine with respect to the Treaty Clause.

The plaintiffs contend that the Powell, Chadha and Freytag decisions weigh heavily in favor of this court deciding this case on the merits rather than dismissing under the rubric of the political question doctrine. These cases involved powers that were committed to the political departments by the Constitution but which were, according to the Supreme Court, subject to review when utilized in a manner inconsistent with the relevant constitutional provisions. The plaintiffs argue that Congress and the President have ignored a Constitutional mandate explicitly circumscribing the parameters within which they can exercise their authority. Use of the fast track procedure, according to the plaintiffs, amounts to little more than an agreement between the President and a majority of Congress to ignore the minority protections built into the Treaty Clause, effectively preventing the Senate minority from ever asserting their right to prevent the approval of an agreement constituting a "treaty." In responding to the plaintiffs' argument, the Government simply notes that the Senate has, in other contexts, insisted on its claimed prerogatives under the Treaty Clause without resorting to judicial intervention.

The plaintiffs assert that this court must, in light of the above-cited cases and based on the text and structure of the Constitution as well as materials evidencing the intent of the Framers, accept its responsibility to decide whether NAFTA is a "treaty" within the meaning of the Treaty Clause. They argue that this conclusion is confirmed by numerous cases which have, despite the lack of specific constitutional definition, ruled on the constitutionality of international agreements with respect to the treaty clause. Such cases, according to the plaintiffs, include Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 569-73 (1840) (construing the scope of the Treaty Clause), Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43 (1872) (same), Edwards v. Carter, 580 F.2d 1055 (same), Securities and Exchange Commission v. International Swiss Investment Corp., 895 F.2d 1272, 1275 (9th Cir. 1990) (holding that an unratified treaty is without force until ratified by two-thirds of the Senate), In Re Sutherland, 53 F. 551 (D.Or. 1892 (same).209

E. Third Conclusion of the Court

I conclude that the institutional plaintiffs' claims are not barred by the political question doctrine. I conclude that the issues of whether NAFTA and the Implementation Act, considered separately or jointly, constitute a treaty as contemplated by Article II, Section 2 and , if so, whether they were appropriately made and adopted by appropriate alternative means are legal issues subject to judicial review, interpretation and declaration. I conclude that the Constitution does not solely commit these procedural issues to the President and/or Congress.210 I conclude that there are judicially discoverable and manageable standards with reference to these issues. Constitutional interpretation of even vague constitutional provisions is a standard judicial practice. The issues do not involve policy determinations of a non-judicial nature. Respect for coordinate branches is no more an issue than it is in a myriad of other areas of judicial review. I am particularly persuaded by the Powell,211 Chadha,212 and Freytag213 cases. There is no unusual need for unquestioning adherence to political decisions which arguably violate the Constitution. If courts have the power to determine the constitutionality of the substantive provisions of international agreements, as established by Reid v. Covert, I see no reason why courts do not also have both the authority and responsibility to determine whether the procedures used to adopt such agreements conform to Constitutional requirements.214 There has been no specific announcement by the President or Congress related to the application of the Treaty Clause which might cause embarrassment. I can perceive no prudential considerations which caution against judicial intervention.

It is thus unquestionable to this court that deciding what constitutes a "treaty" subject to the Treaty Clause, although difficult, if not impossible to determine with certainty, is a legal issue, not a political question. I further conclude that if it is decided that such a "treaty" is involved, whether the Treaty Clause is exclusive is also a legal, not a political question. Further, I conclude that the application of the Foreign Commerce Clause and other enumerated power clauses to documents which otherwise constitute "treaties" under the Treaty Clause raises a legal question. All these issues involve constitutional interpretation just as do issues involving the intent and scope of the First, Fourth and Fourteenth Amendments, etc. The difficulty of decision does not change the nature of the issue.

IV. The Constitutionality of NAFTA

As stated above, the Treaty Clause states that the President "shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." Art II, § 2. The plaintiffs' ultimate argument in this case is that the Treaty Clause should be read as an exclusive grant of power with respect to those international agreements that may be called "treaties," and that NAFTA falls within the bounds of the proper definition of the term. The plaintiffs acknowledge that the text of the Constitution fails to establish a test for determining when an international agreement is a "treaty" as opposed to some other type of agreement, and attempt to show that the intentions of the Framers, historical practice, federal court decisions and well-reasoned law review texts all advocate the use of a test that focuses on the importance of an agreement and the degree to which an agreement constrains sovereignty to determine when an agreement must be subjected to the Treaty Clause procedures.

The Government argues that the relevant factors all weigh in favor of a conclusion that the Constitution's Treaty Clause should not be read as an exclusive grant of power, and that the enumerated powers of the President and Congress in the areas of foreign affairs and commerce are sufficient to establish their authority to conclude international commercial agreements without following the strictures of the Article II treaty-making process. According to the Government, plaintiffs' arguments attempting to differentiate between treaties and non-treaties are irrelevant, as they ignore the fact that the provisions of NAFTA were enacted as valid domestic legislation via the Implementation Act - an Act that the Government asserts is no different than any other legislation passed by Congress. Given the fact that it is well-settled law that if federal legislation falls within the substantive scope of an enumerated power, it is constitutional despite its potential impact on the states,215 and the fact that Congress has the power to legislate in the areas of tariffs and domestic and foreign commerce, the Government argues that the plaintiffs have no legitimate basis upon which to challenge NAFTA legislation. The Government further asserts that the plaintiffs' proposed test for differentiating between treaties and non-treaties is the result of a misreading of the historical materials and legal precedents as well as an unjustified adherence to the views of a minority of legal scholars.

The parties' arguments on the merits of this case suggest that this court's decision will turn on its resolution of two distinct issues: (1) What is a "treaty" and do NAFTA and its implementing legislation qualify as a "treaty" as contemplated by the Treaty Clause; and, if so, (2) does the Treaty Clause represent the exclusive procedure by which such a "treaty" can be negotiated, approved and ratified? I will attempt to grasp this constitutional mercury.

A. Article II "Treaties"

As noted above, the text of the Treaty Clause does not provide any insight into what factors or characteristics make an international agreement a "treaty in the constitutional sense." Thus, the Supreme Court has recognized that the Treaty Clause is worded in "general terms, without any description of the objects intended to be embraced by it."216

1. Plaintiffs' Argument

a. Essential Characteristics: Importance and Effect on Sovereignty

In arguing what distinguishes a treaty from other types of international agreements, the plaintiffs cite the Supreme Court's language in Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 572 (1840), where Chief Justice Taney opined that the distinction drawn in the Constitution between treaties and oth