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A decision of a panel will therefore allow the agencies to

respond in a flexible manner.

123/

Moreover, a panel will undoubtedly

follow the practice of the CIT in its remand orders, since the CIT's practice is part of the judicial precedents that the FTA commands the panel to follow. Conclusions: All of the panelists on the binational panels need not be "Officers of the United States."

Congress, however, may make decisions of the

122/

Such a result is similar to Supreme Court practice. If the Court remands a case from a lower federal court, it states that the lower court's actions are to be "consistent" with the Court's opinion. If the Court remands a case to a state court, however, it states that the state court must act "not inconsistent" with the Court's opinion. This latter formulation allows a state court to base a decision on a conflicting state law concept.

Thus, for example, the Supreme Court may state that a certain police practice does not violate the federal Constitution. On remand, the state court may find that the decision does violate the state constitution. The "not inconsistent" formulation used in the FTA thus appears to contemplate greater flexibility on remand than would an alternative formulation.

123/ However, if the remand decision is very narrowly drawn, the agencies may

Issue III: How should the U.S. members of a panel or the roster be
125/

appointed?

Background:

As noted above, the Appointments Clause describes two

methods of appointment.

The first method is appointment by the President, by and with the advice and consent of the Senate. The second method is

124/ Others have suggested that in order to overcome the constitutional problems which they perceive, the implementing legislation should authorize the President to "direct" the Commission to implement the rights and obligations of the United States under the FTA. The use of direct orders from the President to the Commission on what actions the Commission must take could seriously effect the independence of the Commission which is established by statute. As is shown above, the decisions of a binational panel can be given binding effect under U.S. law. Thus, the proposed "solution" is unnecessary. Congress, however, may wish to direct that a certain U.S. official certify the validity of a binational panel decision. Cf. See Z. & F. Assets Corp. v. Hull, 311 U.S. 470, 486-89 (1941) (under U.S. law, an award of the U.S.-Germany Mixed Claims Tribunal was certified by the Secretary of State before it was to be given binding effect; the statute, therefore, required the Secretary of State to determine the regularity and validity of the Commission's awards; and such certification was conclusive regarding the matter). That official could be the U.S. Trade Representative or it might be the U.S. Secretary to the binational panel. Additionally, the FTA's implementing legislation could grant the President to declare that a panel's decision manifestly exceeded the jurisdiction of the panel, and so is null and void under international and U.S. law. Cf. G. Schwarzenberger & E.D. Brown, A Manual of International Law 206 (6th ed. 1976) ("If an international tribunal or court has manifestly exceeded its jurisdiction, it has stepped beyond the consensual basis on which it was formed. Its judgment is, therefore, null and void."). Such decisions should be made by the President himself, since a decision declaring a panel decision was null and void could cause the FTA to collapse.

This solution would allow the President as the "sole organ" of foreign affairs to monitor the decisions of the panel to ensure that they conformed to the FTA and international law. The President, however, would not have to "direct" the actions of the Commission unless he determined that a panel decision was null and void.

125/ This issue is not a constitutional issue, but rather is a practical issue. Because I have some thoughts on the matter, I have included them in

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appointment by the President alone or by a head of a department or by a court of law. Although I have concluded that not all members of a binational panel or of the roster of panelists need to be "Officers of the United States," the U.S. members of a panel should probably be appointed using one of the two methods specified in the Appointments Clause.

Analysis: Because each panel will be an ad hoc body, it would be cumbersome to have the President appoint the panelists on an individual panel by and with the advice and consent of the Senate. Moreover, the time limits

specified by the FTA for the creation of a panel are far shorter than the

This could mean that inaction by the

Senate might need to confirm a panelist. Senate on an appointment could result in the appointment of no U.S. members on a panel, or, in an extreme case, could result in a violation of the FTA.

An alternative method of appointment would be to have the panelists appointed to the roster consent of the Senate.

126/

by the President by and with the advice and

127/

Such appointments could be for a limited period

126/ Note that even if the issue about who appoints the roster is resolved, the issue of who chooses a member from the roster to sit on an individual panel must still be resolved.

In

127/ Under any system of appointment, a decision will have to be made about how a panelist may be removed from the roster or from an individual panel. the case of Presidential appointments, the President's power to remove a panelist from a panel could be limited. See Weiner v. United states, 357 U.S. 349 (1958) (the President could not remove a member of the War Claims Commission because the statute implied that members could only be removed for cause). Additionally, Congress could affirmatively limit the President's removal power. See Humphrey's Executor v. United States, 295 U.S. 602 (1935) (Congress has the constitutional power to limit the President's power to remove members of independent agencies). Congress, however, could allow the President (or other appointing official) to remove a panelist from the roster at will. Under certain circumstances (e.g., violating a code of conduct;

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128/

(e.g., three years) or they could be indefinite.

Presidential

appointment and Senate confirmation would have the advantage of having panelists appointed using the same process used to appoint the federal judges they would be "replacing." Using such an appointment process could also help ensure that the panelists are perceived as being independent and

impartial.

129/

The disadvantage to the use of such a system would be that it may be difficult to add additional persons to the roster on short notice. Members of the roster (or individual panelists) could also be appointed by the President alone or perhaps by the United States Trade Representative. Having only a single appointing official would have the advantage of speed, but would not carry with it the same appearance of independence and impartiality which accompanies Senate confirmation.

roster.

One final option would be to allow a court to appoint the panelists or a Courts have appointed "officers", other than officers of the court, 130/ for much of our history. For example, if there is a vacancy in a U.S.

(Footnote continued from previous page)

conflicts of interest), the FTA may allow the President to remove a sitting panelist.

128/ Since the FTA specifies that the use of binational panels will be for only a limited time period (5 years plus 2 additional years, if necessary), the use of an indefinite term on the roster may be acceptable.

129/ Since the success of the binational panel procedure may depend on whether the panels appear to be fair, impartial, and independent such perceptions will be important.

130/ See, e.g., Rice v. Ames, 180 U.S. 371, 378-79 (1901) (the Constitution

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132/

Counsel.

Special courts are also used to appoint an Independent Therefore a court, such as the CIT or the Federal Circuit 133/ could be called upon to appoint members to the roster.

Attorney's position, the local federal district court may temporarily appoint 131/

a replacement.

Appointment by a court would be quick and would give the impression that the panelists will

(Footnote continued from previous page)

allows Congress to establish a system of extradition commissioners who are appointed by federal circuit court judges); Ex parte Siebold, 100 U.S. (10 Otto) 371, 397-98 (1879) (circuit courts may appoint supervisors of election). 131/ 28 U.S.C. § 546. Under § 546, the Attorney General originally fills a vacancy, but that appointment lapses after 120 days, at which time the court may appoint a temporary U.S. Attorney. The power of the Attorney general to make interim appointments is relatively recent. For many years, the power to temporarily appoint U.S. Attorneys rested solely with the local federal district courts. See, e.g., 28 U.S.C. § 546 (1976).

132/ Id. at § 593. There are presently a number of court challenges to the use of independent counsels and the use of courts to appoint an independent counsel. Such challenges attack the use of a court appointed officer to enforce federal law without the supervision of the Attorney General. Moreover, the continued supervision by the court of the work of the independent counsel raises serious separations of power concerns. While similar challenges could be used against court appointment of panelists, similar separation of powers concerns would not be implicated by court appointment of panelists especially if the court does not have continued supervisory powers. See also 1 Rotunda, et al., Constitutional Law § 9.6 (judicial appointment of officers is permitted, so long as the duty to appoint them is not incongruous to the judicial function).

133/ A special court panel could also be established. Cf. id. at § 49 (special panel of the D.C. Circuit established for the appointment of an Independent Counsel). Such a special panel could include one judge from the CIT, one judge from the Federal Circuit, and one judge from the D.C. Circuit