Page images
PDF
EPUB
[blocks in formation]

more broadly applicable to questions of the consistency of the

decision with the governing law.

11

(As noted at the outset, my

principal concern has been with the question of the validity of the total withdrawal of judicial review rather than with the extent to which review is constitutionally required.)

-

that

The Report of the Congressional Research Service, which defends the constitutionality of the binational panel system, emphasizes (a) the context in which the question arises of an agreement between two nations to establish a regime of arbitration on a matter involving international commerce, and (b) Congress's plenary power to exclude importation altogether. And the Report further relies on the Supreme Court's willingness to permit the settlement of claims by an international tribunal in such cases as Dames & Moore v. Regan, 453 U.S. 654 (1981).

These arguments are weighty ones, but they do present

several difficulties. First, the importers who might challenge the validity of the Agreement are not themselves parties to that Agreement. Thus the broad language in decisions such as Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), extolling the virtues of voluntary arbitration in

10. Indeed, a claim of an unconstitutional taking appears to be independently protected against withdrawal from judicial scrutiny. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 107 S. Ct. 2378, 2386 n.9 (1987).

14

international disputes, is not directly in point.

Second, the matters dealt with in this Agreement are

-

12

different in kind from those matters that have in the past been delegated to international tribunals for final decision. Such matters include disputes over national boundaries, or over the regulation or control of boundary waters13 - disputes that are inherently international in character and that cannot be settled without the consent or acquiescence of the nations concerned. Substantial private interests may be affected by the resolution of these disputes, but those interests are necessarily dependent on, and derived from, the international agreement settling the dispute. And the scope of discretion accorded to the legislative as reflected in the judicial policy of

and executive branches

non-interference

-

-

14

is and should be very broad. On the other

hand, the level of import duties is a matter wholly within the control of the importing nation unless and until those duties are 15 made the subject of international agreement. Thus the factors militating in favor of broad discretion, and of non-interference,

12. For discussion of an important recent case, see Schneider, The Gulf of Maine Case: The Nature of an Equitable Result, 79 Am. J. Int'l L. 539 (1985).

13. See, e.g., Soucheray v. Corps of Engineers, 483 F. Supp. 352 (W.D. Wis. 1979).

14. Judicial non-interference in such cases, however, does not signify that constitutional limitations are inapplicable only that the other branches are freer to make their own judgments.

[ocr errors]

15. Because of the significance of import duties for international trade and commerce, there are, of course, a number of such agreements to which the United States is a party.

15

do not have the same force.

Similarly, the claims that importers might have in

connection with this Agreement are qualitatively different from

the claims against a foreign nation that were involved in the

16

Dames & Moore case. A claim against a foreign nation may be entirely precluded by the doctrine of sovereign immunity, except to the extent that that immunity has been effectively waived, qualified, or abrogated. But there is substantial doubt whether the doctrine of sovereign immunity may wholly bar a claim that the government of the United States, or one of its agents, has acted in violation of law. And that doubt is not eliminated by the fact that action has been taken pursuant to a treaty or other international agreement, since these agreements stand on no higher constitutional plane than a statute. See Reid v. Covert, 354 U.S. 1, 16 (1957).

17

Finally, I believe that the courts will, and should, reject the argument that the federal government's plenary power to exclude imports altogether encompasses the "lesser" power to bar judicial review of decisions with respect to a statutory regime of import duties. That argument runs into the established principle that questions of procedural due process must be

16. See also Z. & F. Assets Realization Corp. v. Hull, 311 U.S. 470 (1941).

17. See authorities cited supra note 9, especially Hart, at 1370-71. In Dames & Moore itself, the Court explicitly refrained from considering any constitutional claims that the petitioners might have against the United States arising out of the

[ocr errors][merged small]

decided independently of the legislature's power over substantive See, e.g., Cleveland Board of Education

rights and obligations.

v. Loudermill, 470 U.S. 532, 541 (1985).

I hope this letter will be helpful to your Committee, and that you will let me know if I can be of any further assistance.

[blocks in formation]

Columbia University in the City of New York | New York, N. Y. 10027

SCHOOL OF LAW

435 West 116th Street

30 March 1988

Dear Mr. Kastenmeier,

I write in response to your letter of December 8, 1987

requesting my views on the constitutionality of certain features of the

United States/Canada Free Trade agreement.

Your letter lists the following questions:

(1) Must these cases be subject to judicial review by an

Article III Tribunal?

(2) Does the use of a Binational Panel violate the Appointments Clause by permitting persons who are not "officers of the

United States" to "execute the laws"?

(3) Does the use of a Binational Panel represent an

unconstitutional delegation of legislative power?

(4) Does the agreement contravene constitutional principles

requiring the separation of powers?

the

If the first of these questions required an affirmative answer, other questions presumably would be mooted. I shall therefore address that question first. The other questions you cite reflect a particular characterization of the provisions of the Agreement for constitutional purposes; a different characterization is far more plausible. I shall address your questions from each of those perspectives.

« ՆախորդըՇարունակել »