Letter to Hon. Howard Heflin The FTA with Canada stands firmly in this tradition. Antidumping and countervailing duty disputes were a bone of contention between our nations. Instead of replacing the existing statutes of both nations completely, as the agreement could have done, the interim provision of binational panel review was selected. It was important for the new forum to be independent and evenhanded. Consistent with that purpose, the President could not have retained a power of conditional acceptance of arbitral awards. If the Appointments Clause is read in conjunction with the other powers of the President and of our national government, it does not contain so counterproductive a requirement. 2. Should there be a fast track review for constitutional challenges to the binational panel procedure itself, or to the implementing legislation? The Committee may prefer to include provision for a fast track review procedure. A recent example that could serve as a model is contained in the Gramm-Rudman-Hollings Act. That provision probably expedited the judicial challenge that eventually invalidated a portion of the Act. A special reason to include such a provision here would be to assuage possible Canadian fears that our domestic judicial review will indefinitely entangle administration of the FTA. I do not think, however, that fast track review must be provided for there to be reasonable assurance that constitutional challenges can be brought and heard promptly. For example, the first party who is taken to arbitration involuntarily would presumably sue to enjoin the operation of the FTA and its implementing legislation, on grounds of unconstitutionality. That is a familiar kind of action in administrative law, and should present no special difficulties here unless there are signs that Congress has attempted to preclude constitutional review. I and others cautioned the Committee against any such attempt in our written statements, because it raises very delicate constitutional questions of its own. To avoid any implication that the implementing legislation means to preclude constitutional challenges, it would probably be sufficient for the legislative history to indicate that constitutional challenges of the ordinary sort are contemplated. Letter to Hon. Howard Heflin Page 4 important No. The consideration is to maintain the appearance of full independence and objectivity of the panel members. The current drafts of the implementing legislation contain sensible procedures for the selection of the rosters of panel members, under the auspices of the US TR. That office has an institutional interest in the smooth functioning of international arbitration, and should be fully acceptable to the Canadians. Some might fear, however, that the addition of Senate confirmation could lead to pressure on prospective panel members to promise responsiveness to American commercial interests. For that reason, I think confirmation is undesirable. There is certainly no constitutional necessity for it. Even if the panel members were considered "Officers of the United States," which I do not believe them to be, the Appointments Clause would allow them to be appointed by the President alone or by the head of a department. I hope I have adequately addressed these questions in the brief time available to do so. Please let me know if I can be of future service to the Committee. Sincerely, Harold H. Bruff Administrative Law Redditt Professor of Law The University of Texas Biographical Statement Harold H. Bruff Professor Bruff is the John S. Redditt Professor of Law at the University of Texas at Austin; this semester he is the Visiting Bronfman Professor of Administrative Law at The American University in Washington, D.C. His specialties are administrative law and the separation of powers. He is a graduate of Williams College and the Harvard Law School (magna cum laude, 1968). He has served as a senior attorney-adviser in the Office of Legal Counsel, U.S. Department of Justice. Professor Bruff is an author of two casebooks, The Administrative Process (with Robinson and Gellhorn, 1986), and David L. Shapiro Cambridge, Massachusetts 02138 February 2, 1988 The Honorable Robert W. Kastenmeier U.S. House of Representatives Committee on the Judiciary Dear Congressman Kastenmeier: In your letter of December 8, 1987, you raised a number of constitutional concerns relating to a portion of the Free- Trade Agreement between the United States and Canada. In particular, you asked whether the use of binational panels as the final arbiter of certain matters (1) would violate any constitutional requirement that such decisions must be subject to judicial review in an Article III court, (2) would violate the Appointments Clause of the Constitution, (3) would be an unconstitutional delegation of legislative power, or (4) would contravene constitutional principles requiring the separation of powers. Because I believe that the first of these questions is one of great difficulty, and because it is the one on which I may have something to contribute, this letter is addressed primarily to that question. Of course, the four questions do not fall neatly into watertight compartments, and questions about the necessity of judicial review in an Article III court inevitably overlap, and are informed by, questions of the separation and 2 My conclusion on this question, for reasons that are developed in the following sections, is that the convergence of Article III and due process considerations casts grave doubts on the validity of the total withdrawal of certain matters from judicial cognizance. I Under present law, judicial review of final antidumping and countervailing duty determinations may be had first in the Court of International Trade (an Article III court), then on appeal to the Court of Appeals for the Federal Circuit (also an Article III court), and finally on writ of certiorari to the Supreme Court. The Free-Trade Agreement between the United States and Canada would allow either party to the Agreement to elect, as an alternative to this system of judicial review, a procedure under which a final and binding decision would be made by a panel of five members. This panel would decide whether the challenged determination "was in accordance with the antidumping or countervailing duty law of the importing party." Whenever a matter was referred to a panel for decision, each of the parties would select two of the five panel members from an agreed roster |