CRS-29 relationship and of the occurence of the injury in interstate commerce. is, absent the jurisdictional conclusion of these two findings, the administrative agency had no control over the question. That Thus, there was a fusion of due process and Article III. Id., 285 U.S., 56, 60, 64. See also St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936) (Justice Brandeis concurring) ("[t]he supremacy of law demands that there shall be an opportunity to have some court decide whether an erroneous rule was applied"). Still, the Court seems to be united on the proposition that the constitutional/jurisdictional fact analysis of Crowell has been eroded by later cases. Marathon Pipe Line, supra, 458 U.S., 82 n. 34 (plurality opinion), 110 n. 12 (Justice White dissenting). In Thomas v. Union Carbide Agric. Prods. Co., supra, the Court upheld mandatory submission to an arbitral process, subject only to limited judicial review of the arbitrator's "findings and determination" for fraud, misconduct, or misrepresentation, though the Court noted that it was possible some due process review might similarly be preserved. Id., 473 U.S., 592-593. The It will be observed that vesting final decision in the bilateral panels will approximate the vesting by Congress of final decisions in state courts, which has never occasioned a successful constitutional objection. principles of separation of powers and checks and balances are preserved when decision may be had in state courts because those courts and their judges are not subject to congressional and executive influence. Similarly, having the administrative process concerning the antidumping and countervailing duty laws be reviewed and resolved by the bilateral panels places decision beyond CRS-30 Thus, it appears that preclusion of review in Article III courts would present no constitutional difficulty. Conclusion For the reasons set out above, it appears that the agreement negotiated by the Executive with Canada if implemented through congressional action would meet United States constitutional standards. The context of the exercise of the treaty and foreign commerce powers could arguably be relied on entirely separate from consideration whether any of the three constitutional arguments might have merit absent those factors. But consideration of each of the arguments in turn suggests that the process may be constitutionally justified under applicable precedents aside from the treaty and foreign commerce factors. Johnny H. Killian Senior Specialist American Constitutional Law SUBJECT: Attention: David Beier : American Law Division Analysis of Judicial Review of Administrative Determinations of Antidumping and Countervailing Duties Under Present Law and Under the Proposed United States - Canada Free Trade Agreement This is to respond to your request for an analysis of the provisions of the United States Canada Free Trade Agreement (Agreement) which would establish binational Panels (hereinafter Panels) to review administrative decisions by agencies of the United States and Canada concerning antidumping and countervailing duties. This memo will address the historical context of the Agreement and examine various criticisms of the proposed Panel. The Agreement provides that the United States and Canada will retain, for the immediate future, the right to apply their antidumping law and countervailing duty law to imports from the other country through administrative proceedings.2 The Agreement, however, seeks to replace judicial review of any such final antidumping and countervailing duty determinations 1 Antidumping laws are designed to prevent the selling of a commodity from one country to a different country under similar conditions of sale for less than its price in its home country. J. Pattison, Antidumping and Countervailing Duty Laws §1.02 (1984). Countervailing duties are duties designed to offset the effect of government payments and other extraordinary economic benefits or "subsidies" which distort competition in international trade. Id. at §102.2. 2 United States - Canada Free Trade Agreement, Art. 1904(1) (signed December 23, 1987 and January 2, 1988) (hereinafter Agreement). The Agreement also provides that each country may, subject to certain restrictions, change or modify its antidumping and countervailing duty laws. Id. at Art. 1902(2). CRS-2 with review by individual Panels made up of United States and Canadian citizens.3 A variety of criticisms have been leveled against the judicial review provisions of the Agreement. It has been argued that the President and his negotiators were not delegated the authority to negotiate regarding the removal of jurisdiction from the courts of the federal judiciary and the creation of international panels that would exercise this jurisdiction. It has also been argued that the creation of the panel review system deprives importers of the right to judicial review, which has historically been available to challenge the imposition of custom duties, and that it also erodes the recently developed rights of affected industries and labor groups to seek court review of these administrative actions.5 It has been argued that it is a fundamental tenet of the American governmental system that citizens have a right to make their challenges to the methods used to calculate their taxes in front of appointed members of the judicial branch. Finally, it is argued that the implementation of this provision of the Agreement will bring into question the constitutional status of the Court of International Trade (CIT).6 3 Agreement at Art. 1904(1). The Agreement does not envision a permanent Panel, but instead would establish a roster of 50 candidates who are citizens of either country, from which Panels may be picked. Agreement at Annex 1901.2. If a request for the review of a final administrative decision is made within 30 days of that decision, then the two countries will, based upon the procedures specified in the Agreement, appoint a five member panel to review the decision. Id. 4 Customs and International Trade Bar Association's Statement in Opposition to Withdrawal of Jurisdiction in the United States Court of International Trade and Its Appellate Tribunals to Review Antidumping and Countervailing Duty Decisions of Federal Agencies Involving Canadian Merchandise 1 (December 3, 1987) (hereinafter CITBA Statement). 6 CRS-3 Executive Branch Negotiating Authority The argument has been made that the President, through his negotiators, has overreached the authority granted to him by Congress by negotiating for the creation of the panel review system, and that the Congress should reject this aspect of the Agreement as above and beyond the scope of the goals sought by Congress in authorizing his negotiation powers. An examination of the Trade Act of 1974, however, indicates that the scope of presidential authority to negotiate may be broad enough to encompass such an agreement. Further, even absent express Congressional authorization, the President has the inherent power to seek agreements with other countries regarding trade, although the implementation of such agreements may require legislative action by the Congress. Under the Constitution, Congress is granted the power to raise revenue and 8 regulate commerce with foreign nations. The Congress may delegate this power to the President by enacting legislation which authorizes him to negotiate, conclude and implement trade agreements, including modifications of tariff schedules.9 As its commerce power is plenary, 10 the Congress may regulate the scope of its delegation to include or preclude areas of negotiation. The Constitution also grants the President a number of enumerated foreign 9 See Star-Kist Foods, Inc. v. United States, 275 F.2d 472 (C.C.P.A. 1959); United States v. Yoshida Int'l, Inc., 526 F.2d 560, 571 (C.C.P.A. 1975). |