Thursday, January 08, 2009
Right now, I am grading papers for my John Marshall Class on NAFTA and other US Free Trade Agreements. A theme running through a few is whether NAFTA is constitutional. The most common argument against constitutionality is that NAFTA is a treaty. The Constitution requires treaties to be negotiated by the President and ratified by the Senate by a 2/3 vote.
NAFTA, on the other hand, is the product of the fast track process. Under fast track, the President (of his proxies) negotiate the deal and bring it to Congress. Congress then considers the deal in the form of standard legislation and votes on it in both houses. If it passes by a simple majority, it becomes the law. New law, no treaty necessary.
Some have argued that this process, and similar congressional-executive agreements, are unconstitutional in that they are an end run around the Treaties Clause. In reality, they are a reasonable delegation of congressional authority to the President. Congress, we must remember, has constitutional authority to regulate trade between the U.S. and foreign nations (as well as Native American tribes). Of course, 535 members of congress can't very well sit down with the President of Morocco (or all of Morocco's legislators) and hash out a trade agreements. So, to facilitate trade deals, Congress has granted fast-track authority to the President. So, most scholars (but not all of my student) have found the process to be constitutional.
All of this is context for this editorial from the New York Times in which former U.S. Ambassador John Bolton and former Deputy Attorney General John Yoo bemoan the use of congressional-executive agreements in lieu of Senate ratified treaties. The examples they raise are much more dire than "simple" FTAs, but I am not sure their analysis is particularly more compelling than my one paragraph above.