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

• Author: Lederman, Alan S.

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 (or, alternatively, first passing a statute or joint resolution by a simple majority of both the House and Senate authorizing a subsequent presidential agreement with a foreign country) is commonly known as the "congressional-executive agreement" method of implementation. (10) This method of implementing international agreements was utilized for approximately 90 percent of international agreements during the late 20th century. (11) Examples of such congressional-executive agreements include those to enter the International Monetary Fund; enter the World Bank, build the St. Lawrence Seaway, enter the World Trade Organization, enter NAFTA, and enter the SALT I arms control agreement. (12) Only about 10 percent of late 20th century U.S. international agreements have been approved by two-thirds of the Senate, without House approval, using the Treaty Clause. (13) The Treaty Clause has been used, for example, to enter the United Nations, for some extradition treaties, and for some tax treaties. (14)

Both proponents and opponents of the constitutionality of congressional-executive agreements cite the text of the Constitution, the perceived intent of the framers, Supreme Court precedents, and late 20th century political trends in support of their positions. Made in the USA Foundation squarely presented the federal judiciary with the historic opportunity to rule on these arguments. The stakes could scarcely have been higher. A finding that the congressional-executive agreement procedure, such as that used in approving NAFTA, was unconstitutional, would have jeopardized thousands of late 20th century international agreements and implementing statutes. Indeed, depending on the rationale for the finding of unconstitutionality, existing noncommercial as well as commercial agreements could have been jeopardized, agreements that coincidentally received more than two-thirds Senate approval could have been jeopardized, and statutes with even predominantly domestic application but adopted as part of international agreement implementing legislation could have been jeopardized. (15)

Textual Arguments

Proponents of Treaty Clause exclusivity observe that, in the same sentence as and directly following the Treaty Clause in Article II is the Appointments of Inferior Officers Clause. (16) That clause requires Senate approval of presidential appointments, other than such "Inferior Officers" as the Congress as a whole shall designate. (17) Thus, the Appointments of Inferior Officers Clause, like the Treaty Clause, provides for Senate approval of presidential action, but, unlike the Treaty Clause, explicitly contains an alternative by which Congress can approve presidential action by a majority of both houses.

Proponents of Treaty Clause exclusivity also point out that if the Article I national defense and foreign commerce powers of Congress as a whole are indeed independent from Article II, as proponents of the congressional-executive agreement contend, then Congress, without the President, could negotiate and pass international agreements, thereby eliminating the President's historical leading role in foreign affairs. (18)

Further textual support for the exclusivity of the Treaty Clause has been sought in the Article I Compacts Clause. (19) The Compacts Clause absolutely prohibits states from entering into "treaties" With foreign countries, but allows states to enter into "agreements" or "compacts" with foreign countries with the approval of Congress as a whole. Supporters of Treaty Clause exclusivity view the Compacts Clause as implying there are at least some international agreements that are necessarily so important as to constitute "treaties," not merely "agreements" or "compacts," and that such "treaties" require two-thirds Senate approval. (20)

By contrast, proponents of the congressional-executive agreement approach argue that the text of the Constitution supports such method as a permissible alternative to use of the Treaty Clause for implementing international agreements. (21) These commentators note that Article I gives the Congress as a whole powers to provide for the national defense and foreign commerce of the United States, and, voting through a majority of both houses, the right to make all laws necessary and proper in furtherance of these national defense and foreign commerce powers. (22)

Backers of the congressional-executive agreement also note that although the Treaty Clause states that the President "has power" to make treaties with two-thirds Senate approval, the text of the Treaty Clause does not state that the President "has the sole power" to make treaties with two-thirds Senate approval. (23) By contrast, the Article I Impeachment Clause uses the words "the sole" preceding the word "power," in giving the House and Senate respectively "the sole power" of impeachment and trial of impeachment. (24)

Framers' Intent

As noted in the district court opinion, proponents of the Treaty Clause exclusivity find support in the Federalist Papers of Alexander Hamilton and John Jay, and contemporaneous statements regarding the Treaty Clause during the course of the Constitutional Convention. (25) From these, they conclude that the purposes of the Treaty Clause were: 1) to promote equality of the states, as under the Articles of Confederation; 2) to protect regional interests against sacrifice by the dominant majority (e.g., otherwise, the northern states could otherwise have conceded lower Mississippi navigation rights to foreign powers to obtain North Atlantic shipping rights); 3) to promote collegial discussions with the President, speed of ratification, and confidentiality, since there are fewer Senators than Representatives; 4) obtain a longer-term viewpoint for major foreign policy decisions through the longer tenure of Senators than Representatives. (26) George Washington, who was president of the Constitutional Convention, was also an exponent of senatorial treaty monopoly. (27) As President, he refused to give any papers relating to the 1796 Jay Treaty, involving international...