NAFTA and other mega-‘trade’ deals are
actually about lots more than merely ‘trade’; they’re about
sovereignty — the ability of each of the participating nations to
establish laws and regulations restricting toxicity of products,
environmental pollution, protecting workers’ rights, and many other
things that are essential to the public’s welfare. These ‘trade’ deals
lock-in existing laws and regulations so that no matter what is found by
future scientific studies which may indicate, for example, that a given
product is actually far more toxic than had previously been known, the
laws and regulations can’t be increased, because any such increase would
subject the given nation to multi-billion-dollar lawsuits by
international corporations for ‘infringing on the rights of stockholders
to profit’ by any stiffening of those regulations existing at the time
the ‘trade’ deal became law. Thus, for the first time in world history,
the rights of the holders of the controlling blocs of stock in
international corporations are coming to supersede the rights of any
government, so that those stockholders can sue taxpayers of any such
country, not in any democratically accountable court and judicial
system, but in private panels of unaccountable international ‘arbitrators’ who won’t be subject to any nation’s laws.
It’s an international-corporate world government now forming, and the
U.S. Constitution prohibits the U.S. from being any part of it (because
what’s forming is an international-corporate dictatorship); so, in the U.S., it’s being done entirely unConstitutionally.
[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 Trade Act of 1974 introduced a new
way to pass a treaty, the way now called Fast Track Trade Promotion
Authority, by means of which that two-thirds requirement can be
eliminated and ‘trade’ deals can now become law merely by being approved
by 50%+1 members of the Senate. This was done because President Richard
Nixon and some members of Congress wanted to be able to pass into law
treaties that would be so controversial (so odious, actually) that
approval by two-thirds of the Senate wouldn’t be possible; such proposed
treaties wouldn’t be able to become approved in this country unless the
two-thirds-rule were eliminated for them.
By means of the Trade Act of 1974, these
very controversial treaties would be able to become law in the U.S. by
the simple device that, though America’s Founders would certainly have
called them “treaties,” and though they actually are
called “treaties” by all of the other nations that sign them, our
government would instead call them merely “international agreements”
not “treaties” (though the two are synonymous with one-another) and would thus nullify the Treaty Clause without needing to amend the U.S. Constitution (and, of course, the only way legitimately to amend anything in the Constitution is by means of its Amendment-process).
America’s Founders were wise, and were
extraordinarily learned about history; and the U.S. Constitution
embodies this unique wisdom and learning; the Treaty Clause’s two-thirds
requirement exemplifies that. It is a crucial part of their
determination to prevent any President from having too much power — from
becoming a dictator (something that becomes even worse if the dictator
has rammed through not only mere laws, but also treaties, since those are far harder to undo).
For example: it was intended to block any President from making a
treaty with a foreign nation if that treaty would be so bad that he
couldn’t get two-thirds of the U.S. Senate to support it. (That’s a
tough requirement for any President to meet on anything, but a treaty is
far more difficult than any other law is to cancel; and, so, passing it
is passing a law that’s virtually permanent and virtually impossible to
modify. The Constitution wasn’t designed in order to meet the
convenience of Presidents, nor of Presidents plus half of the U.S.
Senate, but to protect the public.) And their wisdom is why our
constitution remains the world’s longest-lasting one. But, at least in
this regard, it has been abandoned — and only the U.S. Supreme Court can
decide now whether to restore it.
As Alexander Hamilton wrote on 9 January 1796,
defending the new Constitution, and especially its Treaty Clause: “I
aver, that it was understood by all to be the intent of the provision
[the Treaty Clause] to give to that power the most ample latitude to
render it competent to all the stipulations, which the exigencies of
National Affairs might require—competent to the making of Treaties of
Alliance, Treaties of Commerce, Treaties of Peace and every other
species of Convention usual among nations and competent in the course of
its exercise to controul & bind the legislative power of Congress.
And it was emphatically for this reason that it was so carefully
guarded; the cooperation of two thirds of the Senate with the President
being required to make a Treaty. I appeal for this with confidence.”
He went further: “It will not be disputed
that the words ‘Treaties and alliances’ are of equivalent import and of
no greater force than the single word Treaties. An alliance is only a
species of Treaty, a particular of a general. And the power of ‘entering
into Treaties,’ which terms confer the authority under which the former
Government acted, will not be pretended to be stronger than the power
‘to make Treaties,’ which are the terms constituting the authority under
which the present Government acts.” The phrase “international
agreement” was not mentioned by him because no one at that time had even
so much as suggested that the term “treaty” was anything else than
identical in meaning to an “international agreement”; everyone
understood and accepted that any “treaty” was an “international
agreement,” and that any “international agreement” was a “treaty.” So:
there can be no doubt that the term “treaty” refers to any and all types
of international agreements. This was the Founders’ clear and
unequivocal intent. No court under this Constitution possesses any power
to change that, because they can’t change history.
Furthermore, George Washington’s famous
Farewell Address asserted that, ”It is our true policy to steer clear of
permanent alliance with any portion of the foreign world”; and the
third President Thomas Jefferson said in his equally famous Inaugural
Address, that there should be “Peace, commerce, and honest friendship
with all nations — entangling alliances with none.” Jefferson’s comment
there was also a succinct tip-of-the-hat to yet another major concern
that the Founders had regarding treaties — that by discriminating in
favor of the treaty-partners, they also discriminate against
non-partner nations, and so endanger “peace, commerce, and honest
friendship with all nations,” which was the Founders’ chief goal in
their foreign policies. But, the Founders’ chief concern was the mere
recognition that treaties tend to be far more “permanent” and
“entangling” than any purely national laws. This was the main reason why
treaties need to be made much more difficult to become laws.
Hamilton was quite explicit that the
Treaty Clause pertained “to the making of Treaties of Alliance, Treaties
of Commerce, Treaties of Peace and every other species of Convention
usual among nations and competent in the course of its exercise to
controul & bind the legislative power of Congress. And it was
emphatically for this reason that it was so carefully guarded; the
cooperation of two thirds of the Senate with the President being
required to make a Treaty.” He did not exclude “Treaties of Commerce.”
Even the possibility of allowing such an exception to the Treaty
Clause was denied by him. And yet, starting with the Trade Act of 1974,
it happened.
Each one of the 37 Senators (4
more than would have been required under the Treaty Clause to block)
who voted against Fast Track Trade Promotion Authority (and here almost
exactly the same 37 Senators voted against Fast Track the final time
around) should possess the standing to bring this issue to the U.S.
Supreme Court for the Court’s determination as to what the Founders
meant, and didn’t mean, by their asserting, “[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.” Each one of these
Senators might be able to make history here. Each one of the Senators
might thus affect the future course of world history by bringing this
terrifically important issue to the Supreme Court to be decided, once
and for all. However, none has cared enough even to try. But it’’s
clear: any “international agreement” is a “treaty,” and any “treaty” is
an “international agreement.” No one even questioned that at the time
the Constitution was written.
THE MAIN U.S. CONSTITUTIONAL ISSUE
In June 1954, Morris D. Forkosch headlined in Chicago-Kent Law Review, “Treaties and Executive Agreements,” and
summarized the status of this issue up into the start of the Eisenhower
Administration. It was a different nation then. He noted: “Suppose,
however, that a treaty conflicts with a provision of the United States
Constitution or contradicts the terms of a federal statute. Which, then,
governs? In the first of these situations, the United States Supreme
Court has indicated, albeit the language is obiter, that the treaty
would be ineffective.29” (His footnote included: “DeGeofroy v. Riggs,
133 U. S. 258 at 267, 10 S. Ct. 295, 33 L. Ed. 642 at 645 (1890), and
Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525 at 541, 5 S. Ct.
995, 29 L. Ed. 264 at 270 (1885).”) So: according to U.S. Supreme
Court decisions up till at least 1954, any one of the five Fast-Tracked
international trade agreements that has been passed since the Fast-Track
law, the Trade Act of 1974, was passed, would have been blocked by the
Supreme Court, were it not for the Trade Act of 1974 — a mere law that,
supposedly, has changed the Constitution without amending it, but that
did this simply by asserting that when the Founders said “treaty” they
weren’t referring to any and all forms of international agreement —
which they clearly were referring to, in their era. (If you doubt it, you’ll find in my “The Two Contending Visions of World Government,”
this issue being discussed within its broader context. Key there is
that the term “treaty” in the Founders’ era meant any type of
international agreement, no exceptions. An originalist interpretation of
the Constitution would thus be obliged to outlaw the Fast Track Trade
Promotion Authority provision of the Trade Act of 1974.)
Obviously, the power to interpret the
Constitution rests solely with the U.S. Supreme Court. And the Supreme
Court is supposed to interpret the words that are in the Constitution as
closely as possible to the way the Founders who wrote it intended those
terms to be understood to mean. That’s just basic, to any
constitutional democracy. (Even non-originalist theories of
Constitutional interpretation affirm that the overriding concern is the “larger purpose — the animating spirit — of the Constitution,” which
ultimately refers to the intentions of the majority of the people who
signed the document.) There is no getting around the fact that Fast
Track Trade Promotion Authority is unConstitutional. But attempts have
been made to get around its being unConstitutional.
In February 2001, Michigan Law Review published John C. Yoo’s January 2000 article, “Laws as Treaties: The Constitutionality of Congressional-Executive Agreements,” in
which Yoo, the lawyer who subsequently provided to George W. Bush the
rationalization for Bush’s authorization to use torture after 9/11,
argued that the two-thirds Senate rule needs, for practical purposes, to
be nullified for certain types of international trade agreements,
including for the five that had already been Fast-Tracked. Rather than
his dealing with the question of whether the Executive and the
Legislative branches possess Constitutional authority to interpret the
Constitution, he wrote there the argument that he would present to the
Judicial branch, at the U.S. Supreme Court, if he were to be the
attorney arguing there for the Constitutionality of Fast-Track. (Perhaps
this paper was even one of the reasons why he was selected by Bush.)
His entire argument was pragmatic as he saw it, such as, this: “Today,
however, the Senate has about fifty percent more members than the first
House of Representatives envisioned by the Constitution, suggesting that
the Senate no longer has the small numbers that the Framers believed
necessary for successful diplomacy.” This sort of thing constituted his
argument for why treaties that don’t concern national security and so
fall under the President’s Commander-in-Chief authority, shouldn’t be
considered to be “treaties,” but only as “Congressional-Executive
Agreements.” That’s as far as anyone has yet gone to rationalize the
Fast Track Trade Promotion Authority as being ‘acceptable’ under the
Constitution.
However, even Yoo noted, at the time,
that the most-prominent scholarly argument in favor of the
Constitutionality of Fast-Track, “Is NAFTA Constitutional?” by Bruce Ackerman and David Golove, in the February 1995 Harvard Law Review,
was a “provocative and idiosyncratic theory of unwritten constitutional
amendments,” whereas Yoo didn’t have the nerve to demean, but only to
note, the article by Laurence Tribe, “Taking Text and Structure Seriously,” in that same publication, which utterly demolished the Ackerman-Golove article. In December 1998, Golove came forth in New York University Law Review, with a 152-page treatise, “Against Free-Form Formalism,” trying to overcome Tribe’s case. But, more recently, Michael Ramsey posted online his 13 August 2012 review of all of that, “Laurence Tribe on Textualism (and Congressional-Executive Agreements),” where he devotes most of his attention to the two original pro-and-con articles in the 1995 HLR,
and says that Tribe’s case was far more persuasive than
Ackerman-Golove’s; and, then, he notes parenthetically near the end:
“(David Golove makes an attempt, in a reply article published at 73
N.Y.U. L.Rev. 1791 (1998), but I don’t think he makes much headway
against them [Tribe’s ‘points’]).” Golove’s 152-page treatise failed to
impress anyone. Among the legal scholars, it’s pretty much a settled
matter: Tribe was right. Not even Yoo had the temerity to challenge it.
However, Yoo argued that there is a
pragmatic need to uphold Fast Track Trade Promotion Authority; and that
this pragmatic need (to violate the U.S. Constitution) is “that the
Senate no longer has the small numbers that the Framers believed
necessary for successful diplomacy.”
Thus: the current academic status of the
issue is: The Supreme Court would have little choice but to overturn the
Fast-Track provision of the Trade Act of 1974, if the matter were to be
accepted by the Court for adjudication, unless the high Court were
willing to be despised not only by the public but especially by legal
scholars. If the Court were to decline to consider such a case, then it
would be accepting the authority of the Executive branch in conjunction
with some members of the Legislative branch, to interpret the meaning of
“treaty” in the U.S. Constitution — and, in the entire history of the
United States, the Supreme Court has never done that.
Well, in a sense, that’s not entirely correct: the 2001 appeals-court case, Made in the USA Foundation v. U.S.,
was the only case to deal with this issue, and it concluded, citing as
its chief authority a non-dispositive Supreme Court decision that was
written by Justice William H. Rehnquist, in the 1979 case Goldwater v. Carter,
which said that a certain action that President Jimmy Carter had done
under both his treaty authority and his Commander-in-Chief authority
could not be Constitutionally challenged by Senator Barry Goldwater. But
that Supreme Court decision, which some suppose to constitute authority
for this trade-treaty matter, concerned not international trade, but
instead the President’s authority as Commander-in-Chief, and so it
wasn’t even a “trade” case at all; it wasn’t even relevant, and thus
really shouldn’t have been cited, because it dealt with different
Constitutional provisions regarding what does and what does not reside
within the President’s authority — namely, as Commander-in-Chief, and as
the negotiator on mutual-defense treaties. So, there wasn’t
even a question in this matter as to whether it concerned a “treaty.”
Not relevant at all. On that shoddy basis, the appeals court said:
“We nonetheless decline to reach the merits of this particular
case, finding that with respect to international commercial agreements
such as NAFTA, the question of just what constitutes a ‘treaty’
requiring Senate ratification presents a nonjusticiable political
question.” It said this even despite denying that the meaning of the
Constitutional term “treaty” should be determined by the Executive and
the Legislative branches, instead of by the Judicial branch:
It is true that the Supreme Court has
rejected arguments of nonjusticiability with respect to other ambiguous
constitutional provisions. In Munoz-Flores, the Court was confronted
with the question of whether a criminal statute requiring courts to
impose a monetary “special assessment” on persons convicted of federal
misdemeanors was a “bill for raising revenue” according to the
Origination Clause of the Constitution, Art. I, § 7, cl. 1, in spite of
the lack of guidance on exactly what types of legislation amount to
bills “for raising revenue.” The Court, in electing to decide the issue
on the merits, rejected the contention that in the absence of
clear guidance in the text of the Constitution, such a determination
should be considered a political question.
To be sure, the courts must develop standards for making [such] determinations,
but the Government suggests no reason that developing such standards
will be more difficult in this context than in any other. Surely a
judicial system capable of determining when punishment is “cruel and
unusual,” when bail is “[e]xcessive,” when searches are “unreasonable,”
and when congressional action is “necessary and proper” for executing
an enumerated power, is capable of making the more prosaic judgments
demanded by adjudication of Origination Clause challenges.
So: even that appeals court was not
saying that the Legislative and Executive branches, working in concert,
should determine what a “treaty” is and what it isn’t, but instead this
court reaffirmed the exclusive authority of the Judicial branch to make
such determinations. It simply refused to exercise the authority. Its
argument here was:
We note that none of these cases [the cited ones on the Supreme Court’s determinations regarding the meanings of specific terms and phrases in the Constitution],
however, took place directly in the context of our nation’s foreign
policy, and in none of them was the constitutional authority of the
President and Congress to manage our external political and economic
relations implicated. In addition to the Constitution’s textual
commitment of such matters to the political branches, we believe, as
discussed further below, that in the area of foreign relations,
prudential considerations militate even more strongly in favor
of judicial noninterference.
So, why didn’t those jurists even make note of the fact that their chief citation, Goldwater v. Carter,
concerned military instead of economic matters, and not the meaning of
“treaty,” at all? Stupidity, or else some ulterior motive — because no reason at all was cited by them.
We note that no member of the Senate
itself has asserted that body’s sole prerogative to ratify NAFTA (or,
for that matter, other international commercial agreements) by a
two-thirds supermajority. In light of the Senate’s apparent acquiescence
in the procedures used to approve NAFTA, we believe this
further counsels against judicial intervention in the present case.
This assertion totally ignored that “the
Senate’s apparent acquiescence” had occurred, and been measured, only
according to the 50%+1 Fast-Track standard, never according to
the Constitution’s two-thirds standard. According to the Constitution’s
standard, which was applied nowhere in the process along the road toward
approval of any of the five Fast-Tracked treaty-bills into law, the
Senate never actually ‘acquiesced in’ any of them. This court was simply
accepting the Constitutional validity of that ‘acquiescence,’ so as to
determine whether or not it was Constitutionally valid. Circular
reasoning — prejudice.
However, in order to assist nullification
of Fast Track for Obama’s proposed ‘trade’ treaties, it would greatly
help if one or more of the very vocal opponents in the U.S. Senate, against Fast-Tracking these treaties — any of the 37 Senators who voted “Nay” on it, for
examples — would petition the Supreme Court to rule on the
Constitutionality of the provisions in the Trade Act of 1974 (and
subsequent legislation) that introduced Fast Track, and thus on Fast
Track’s abolition of the Constitution’s two-thirds rule. The rights of
each one of those 37 Senators, and of everyone who elected them (including the present writer),
are being violated by the Fast Track provision’s denying the victory to
them when they constituted 37 votes and the Constitution says that
anything more than 33 votes will successfully block a treaty from
becoming law. Supposedly, the 60/40 requirement for cloture enables a
mere 51/49 vote for the treaty itself in order for the treaty to pass
into law — despite the two-thirds-of-Senate rule for treaties. This is crazy.
It could salvage American democracy, and
the world (the sovereignty of each one of the participating nations), by
ending U.S. participation in those treaties, and thus ending those
treaties.
The current plan is for Obama’s TPP
treaty, and either or both of the others that might also be available
for U.S. signature, to be approved after this November’s elections, so
that voters won’t be able to expel from Congress the members who do it.
However, even if they get passed this way, a Supreme Court ruling
against Fast Track would overturn them all (and NAFTA).
Whenever it happens, this will be the
most important decision in the history of the U.S. Supreme Court —
perhaps even more important than any President’s Presidency has been. It
will be a global decision, because these treaties are creating a global
government, and the U.S. is central to all of them: without U.S.
participation, each one of these multinational ‘trade’ treaties will
end. If all three of Obama’s mega-‘trade’ deals (TPP, TTIP, and TISA)
become law and stay, then the participating democracies will become so
hamstrung by international corporations, there won’t be any real
democracy remaining; and, for example, the increases in CO2 regulations
that have been ‘agreed’ in the recent Paris accord to limit global
warming, will be blocked — the planet will cook uncontrollably.
Opponents of “regulation” might think that that would be worth the
enormous harms — to the environment, to workers’ rights, to
product-safety, and all the rest that would be crippled by these
treaties — but even many opponents of “regulation” favor democracy, and
favor the sovereignty of nations. Only the billionaires who own
controlling blocs of stock in the major international corporations would
have any authentic reason to be happy, though their own descendants
might end up sharing the hell of an incinerating planet.
Ultimately, the U.S. Supreme Court will
have to decide whether the term “treaty” in the U.S. Constitution means
“international agreement,” and whether “international agreement” means
“treaty.” If they rule that those two are not synonymous, then the U.S.
Constitution will be dead — in the sense that it will then be gone.
—————
