11th Circuit declines to rewrite 20th century world history.

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11th Circuit declines to rewrite 20th century world history.

In Made in the USA Foundation v. U.S., 242 F.3d 1300 (11th Cir. 2001), the 11th Circuit sought to distance the judiciary from perhaps the most contentious issue in late 20th century American constitutional history. Nevertheless, the 11th Circuit's reliance on rather weak precedent to avoid a decision on the merits seems certain to increase, rather than decrease, the academic controversy surrounding the issue.

Made in the USA Foundation involved the applicability of the Constitution's "Treaty Clause" to NAFTA. (1) The Treaty Clause provides that "He [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." (2) The question raised by the case was whether NAFTA implementing legislation, which was voted against by more than one-third of the Senate, was therefore unconstitutional. (3)

Background of the Case

The NAFTA was negotiated by the President pursuant to "fast-track" statutory authority. (4) The NAFTA was signed by the President in 1992. (5) In 1993, the NAFTA Implementation Act was presented to Congress. (6) That legislation was intended to effectively adopt NAFTA by modifying the U.S. Code to conform to the many changes called for in NAFTA. The NAFTA Implementation Act passed the House by a vote of 234 to 200. (7) The NAFTA Implementation Act passed the Senate by a vote of 61 to 38, i.e., by less than a two-thirds vote of the Senators present. (8) The President signed the act into law shortly thereafter. (9)

This practice, used for NAFTA, of in effect codifying international agreements previously agreed to by the President as statutes or joint resolutions and passing the statutes or joint resolutions by a simple majority of both the House and Senate...

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