Whether Uruguay Round Agreements Required Ratification as a Treaty

• Court: Department of Justice Office of Legal Counsel
• Decided: November 22, 1994
• Status: Published

Opinion

Whether Uruguay Round Agreements Required Ratification as a Treaty

The U ruguay R o u n d A greem ents concluded under the auspices of the General A greem ent on Tariffs and T rad e did not require ratification by the Senate as a treaty, but could constitutionally be ex e­ cuted by the P resid en t and approved and im plem ented by A ct of C ongress

N ovem ber 22, 1994

M e m o r a n d u m O p in io n f o r t h e U n it e d St a t e s T r a d e R e p r e s e n t a t iv e

This m em orandum supplements our earlier opinion on the question whether the Uruguay Round A greem ents concluded under the auspices of the General Agree­ ment on Tariffs and Trade (the “G A T T ”) must be ratified as a treaty.1 It replies to two later papers by Professor Laurence H. Tribe, and his testimony before the Sen­ ate Com m ittee on Com m erce, Science, and Transportation, that have disputed our conclusion on that subject.2 After considering Professor Tribe’s arguments, we again conclude that the Uruguay Round Agreements may constitutionally be adopted by the passage o f implementing legislation by both Houses of Congress, together with signing by the President.

I. The Treaty Clause

Professor Tribe argues that there exists, for constitutional purposes, “a discrete subset o f international agreements properly categorized as treaties.”3 Professor

1 S e e M em o ran d u m fo r A m b assad o r M ichael K antor, U S T rad e R epresentative, from W alter D ellinger, A ssistan t A tto rn ey G en eral, O ffice o f Legal C o u n sel, R e m W hether the G A T T U ruguay R o u n d M ust be R a ti­ fie d a s a T rea ty (July 29, 1994) (the “OLC G A T T M em o ran d u m ” ). The G A T T originated in 1947 See 61 Slat. A -3 , T I.A S N o. 1700 “ Essentially the G A T T is now a g ro u p o f som e 200 treaties consisting o f very com plex am en d m en ts, side co d es, special ag reem en ts and so on ” W hat's N ee d e d f o r the G A T T A fte r the U rugua y R o u n d 9, R em arks by Jo h n H Jackson, 1992 Proc A m . S o c 'y In t’l L 69, 71. In 1979, C ongress approved fo u rteen trade ag reem en ts on matters ran g in g from antidum ping and governm eni procurem ent to a bilateral trade ag re em en t w ith H ungary See 19 U .S .C . § 2503. T he U ruguay Round A greem ents include su ccesso r a g re em en ts to m any o f these prior tra d e agreem ents 2 S e e L e tte r for the P resident from Professor Laurence H. T n b e (Sept 12, 1994) (the “T n b e L etter” ), M em oran d u m fo r W alter D ellinger, Abner J M ik v a, G eorge J. M itchell and R obert Dole, from L aurence H. T n b e , R e The C o n stitu tio n a l R equirem ent oj S u b m ittin g the U ru g uay R ound as a Treaty (O ct. 5, 1994) (the “T n b e G A T T M em o ran d u m ” ), S. 2467, G A T T Im p lem en tin g Legislation. H earings B efore the Senate C om m on C o m m erce, S cien ce, a n d T ransportation, 103d C ong (1 994) (P repared Statem ent o f Laurence H T n b e , P ro fesso r, H arv ard U n iv ersity Law S ch o o l) (the “T n b e Prepared Statem ent” ) The b u lk o f the T n b e G A T T M em o ran d u m , an d parts o f the Tnbe P rep ared Statem ent, are devoted to criticizing the view s o f Professors B ruce A ck erm an and D avid G olove in their L etter to the President (Sept 21, 1994), and in a forthcom in g book. W e take no position in the d isp u te am ong Professors T n b e , A ckerm an and G olove 3 T rib e G A T T M em o ran d u m at 2.

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Tribe “readily adm it[s],” however, “that the Constitution itself provides little guid­ ance about the content of this category.”4 He also concedes that “ [t]he Supreme Court has never addressed directly the constitutionality of using the congressional- executive agreement to deal with matters that fall within the C onstitution’s ‘treaty’ category.”5 Nor does he attempt “to construct any sort of general test for deter­ mining whether any given agreement should be considered a treaty.”6 Despite that, Professor Tribe insists that “[the Uruguay Round] warrants the high level o f delib­ eration and consensus that the formal requirements of the Treaty Clause guaran­ tee.”7 Like Professor Tribe, we find that neither the text of the Constitution, nor the materials surrounding its drafting and ratification, nor subsequent Supreme Court case law interpreting it, provide clear-cut tests for deciding when an international agreement must be regarded as a “treaty” in the constitutional sense, and submitted to the Senate for its “Advice and Consent” under the Treaty Clause, U.S. Const, art. II, § 2, cl. 2.8 In such circumstances, a significant guide to the interpretation of the Constitution’s requirements is the practical construction placed on it by the executive and legislative branches acting together. See, e.g., The P ocket Veto Case, 279 U.S. 655, 689-90 (1929) (“[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions o f this character. Com pare . . . State v. South N orwalk, 11 Conn. 257, 264 [(1904)], in which the court said that a practice o f at least twenty years duration ‘on the part of the executive department, acquiesced in by the legislative department, while not absolutely binding on the judicial department, is entitled to great regard in determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful m eaning.’”); Youngstown Sheet & Tube Co.

4 Id at 17 5 Id at 12 6 Id. at 17, see also T n b e Prepared Statem ent at 310 ("I do not offer a com prehensive set o f criteria for defining the boundary betw een treaties and other international agreem ents . . . ’"). 7 T n b e G A T T M em orandum at 20, see also T n b e Prepared Statem ent at 310 8 Professor T ribe has invented his ow n five-part test for concluding that the U ruguay Round A greem ents m ust be considered a treaty in the constitutional sense See T n b e G A T T M em orandum at 19-20; see also T ribe Prepared Statem ent at 310 (fo u r-facto r test) T he suggested c n te n a m ight provide useful guidelines to executive branch policym akers in deciding w hether to subm it an international agreem ent to the Senate for its concurrence rather than to C ongress as a w hole, but we see no reason to thm k that Professor T rib e ’s tests are constitu tio n a lly com pelled (Further, Professor T rib e 's application o f his ow n tests rests on erroneous a s­ sum ptions about the pow ers o f the W orld Trade O rganization and the effects o f the U ruguay R ound A gree­ m ents. See Part III below ) Professor T ribe also notes that the State D epartm ent has its ow n longstanding guidelines fo r advising policym akers w hen to co n sid er an international agreem ent to be a treaty requiring S enate concurrence. See T ribe G A TT M em orandum at 18-19 (citing State D e p 't C ircu lar 175 (D ec 13, 1955), as am ended, 1 1 F o r­ eign A ffairs M anual, ch. 700, § 721 3) By Professor T n b e ’s ow n show ing, how ever, the application o f these guidelines to the U ruguay R ound A greem ents is inconclusive, even accepting Professor T n b e ’s analysis, only four o f the eight factors on the State D ep artm en t’s list support the view that Senate concurrence should be obtained for the U ruguay Round A greem ents T ribe G A TT M em orandum at 18. M oreover, the State D epartm ent’s guidelines are not intended to be constitutional tests determ ining w hether or not an in te rn a ­ tional agreem ent m ust be ratified as a treaty, but rather to articulate the p o lic y considerations that the e x e c u ­ tive branch should follow m deciding w hat procedures to follow w ith regard to such agreem ents

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v. S a w yer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring) (“The Constitu­ tion is a fram ew ork for government. Therefore the way the framework has consis­ tently operated fairly establishes that it has operated according to its true nature.”). Indeed, the Court has been particularly willing to rely on the practical statesman­ ship o f the political branches when considering constitutional questions that in­ volve foreign relations. See, e.g., U nited S tates v. Verdugo-U rquidez, 494 U.S. 259, 273 (1990); D am es & M oore v. Regan, 453 U.S. 654, 686 (1981); see also Harold H. Koh, The N ational S ecu rity C onstitution 70-71 (1990) (historical precedent serves as “quasi-constitutional custom ” in foreign affairs); Griffin B. Bell & H. M iles Foy, The President, the Congress, an d the Panam a Canal: An E ssay on the P o w ers o f the Executive an d L egislative Branches in the F ield o f F oreign Affairs, 16 Ga. J. Int’l & Comp. L. 607, 640-41 (1986); Gerhard Casper, C on stitutional C on straints on the C onduct o f Foreign a n d D efense P olicy: A N on ju dicial M odel, 43 U. Chi. L. Rev. 463, 478 (1976). Such practical construction has long established (and Professor Tribe acknowl­ edges) that “there are m any classes o f agreements with foreign countries which are not required to be form ulated as treaties” for constitutional purposes.9 M ost perti­ nently here, practice under the Constitution has established that the United States can assum e m ajor international trade obligations such as those found in the Uru­ guay Round A greem ents when they are negotiated by the President and approved and implem ented by A ct o f Congress pursuant to procedures such as those set forth in 19 U.S.C. §§ 2902 & 2903.10 In following these procedures, Congress acts un­ der its broad Foreign Commerce C lause pow ers," and the President acts pursuant to his constitutional responsibility for conducting the N ation’s foreign affairs.12 The use o f these procedures, in which both political branches deploy sweeping constitutional powers, fully satisfies the C onstitution’s requirements; the Treaty C lause’s provision for concurrence by two-thirds o f the Senators present is not constitutionally mandatory for international agreements of this kind.13

9 V alidity o f C o m m ercia l A v ia tio n A greem ents, 40 O p A tt’y G en. 451, 452 (1946), see also U nited States v. C u rtiss -W n g h t E xport C orp., 2 9 9 U S 304, 3 1 8 (1936), T n b e G A T T M em orandum at 2-3 10 F o r a su rv ey o f the v a n o u s statutory re g im e s relating to international trade agreem ents in the penod from 1930 o n w ard s, see H arold H. Koh, C o n g ressio n a l C o n tro ls on P residential Trade P olicym aking A fter I N .S. v C hadha, 18 N .Y .U J In t’l L. & Pol. 1191, 1192-1208 (1986). O n C ongressional-E xecutive agree­ m ents gen erally , see K enneth C. R andall, The T re a ty P ow er, 51 O h io St L J. 1089, 1093-96 (1990). 11 S e e U S. C o n st art. I, § 8, cl. 3; Barclays B a n k P L C v. F ra n ch ise Tax Bd. o f C alifornia, 512 U S 298, 329 (1 9 9 4 ), C a lifo rn ia B a n k e rs A s s ’n v. S c h u ltz, 416 U S . 21, 59 (1974). T he T reaty C lause should not be interpreted to cu rtail C o n g re ss's pow er under th e Foreign C o m m erce C lause See D ow nes v B idw ell, 182 U .S. 244, 313 (1 9 0 1 ) (W hite, J , jo in ed by S h ira s and M cK en n a, JJ , co n cu rn n g ), id. at 370 (Fuller, C.J., jo in e d by H arlan, B rew er and Peckham , J J , d issenting). 12 See, e g , D ep a rtm en t o f N a v y v Egan, 4 8 4 U.S 518, 529 (1 9 8 8) (S uprem e C ourt has “recognized ‘the gen erally accep ted view th at foreign policy w a s the province and responsibility o f the E xecutive ” * (quoting H aig v. A g ee, 4 5 3 U .S. 280, 29 3 -9 4 (1981)), A lfr e d D u n h ill o f London, Inc. v. R epublic o f C uba, 4 25 U S 682, 70 5 -0 6 n 18 (1 9 7 6 ) (“ the co n d u ct of [fo reig n policy] is co m m itted p n m a n ly to the Executive B ranch”); U nited S ta te s v Lo u isia n a , 363 U .S. 1, 35 (1 9 6 0 ) (P resid en t is “the constitutional representative o f the U nited States in its d ealin g s w ith foreign n atio n s.” ). n A lth o u g h w e insist on the v an ety o f leg al instrum ents by w hich the U nited States may m ake agree­ m ents w ith fo reig n nations, w e do not dispute P ro fesso r T n b e ’s view that som e such agreem ents m ay have to

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Professor Tribe recognizes the existence of these decades-old practices, which have resulted in the approval o f such fundamental trade pacts as the North Am eri­ can Free Trade Agreem ent (the “NAFTA”).14 But he disparages the use o f Con­ gressional-Executive agreements as merely a matter of “political leaders’ casual approach to the Constitution.” 15 This dismissive characterization gives virtually no weight to the considered constitutional judgm ents of the political branches.16 We believe that that approach is mistaken. Disagreements and uncertainties surround­ ing the scope o f the Treaty Clause — including its interaction with Congress’s power to regulate commerce — are two centuries old. See below . Congress’s For­ eign Commerce Clause authority and the President’s responsibility for foreign af­ fairs are unquestionably broad. In such circumstances, the political branches can fairly conclude — and have in fact concluded — that even major trade agreements such as the Uruguay Round Agreements may be approved and implemented by Acts o f Congress, rather than ratified as treaties.17 Indeed, Professor Tribe him self wrote in 1988 that “it does appear settled that a hybrid form of international agreement — that in which the President is supported by a Joint Resolution of Congress — is coextensive with the treaty p o w er. Such Congressional-Executive

be ratified as treaties. T hus, Professor T n b e is incorrect in asserting that we believe th at the treaty ratifica­ tion process and the ordinary legislative p ro cess are interchangeable See T n b e G A T T M em orandum at 3 On the contrary, we explicitly stated that w e w ere not considering that claim See O LC G A T T M em orandum at 4-5 n 8 (Indeed, as P rofessor T n b e p oints out, the State D ep artm ent’s guidelines in C ircular 175 them ­ selves attest to the ex ecu tiv e b ra n c h ’s view that som e international agreem ents should be co n sid ered to be treaties. See T n b e Prepared Statem ent at 2 98.) M oreover, absolutely nothing in the O L C G A T T M em oran­ dum im plies that “the T reaty C lause is to be read out o f the C onstitution ” T n b e L etter at 3 W hatev er may be true o f other international agreem ents such as the U nited N ations C harter, see T n b e G A T T M em orandum at 8, o ur contention is only that trade agreem ents such as the U ruguay Round A greem ents do n o t require ratification as “treaties ” 14 See T n b e G A T T M em orandum at 7 T he T ribe Prepared Statem ent specifically questions the constitu­ tionality of tw o earlier free trade agreem ents — N A FTA and the 1988 Free Trade A greem ent w ith Canada. Id. at 14 In the earlier T n b e G A T T M em orandum , how ever, Professor T n b e w rote that N A FT A “ is surely less sw eeping in its sco p e [than the U ruguay R ound A greem ents] and at m ost show s that the U ruguay Round might represent the second, even if not the first, agreem ent o f its kind that becam e law w ithout S enate ratifi­ cation ” Id. at 8 In view o f his varying statem ents, we are uncertain o f the status o f existing trade agree­ m ents — N A FTA , the C anadian Free Trade A greem ent, the 1979 T okyo Round, and the U nited States-Israel Free T rade A greem ent — on Professor T n b e ’s theory 15 T n b e G A T T M em orandum at 11, see also id at 2 (“p n o r m anifestations o f a casual attitude tow ard the C onstitu tio n ’s structural requirem ents are in su fficien t in this context to ju stify abandoning the p recise gu ar­ antees o f the T reaty C lau se” ). 16 Professor T n b e h im self acknow ledges that “[t]he issue w h eth er m ajor international agreem ents should be subm itted for m a jo n ty approval by C ongress or for su p erm ajo n ty approval by the Senate was the topic of fierce debate in the h alls o f C ongress, the p o p u lar press, and the pages o f law review s d u n n g the 1940s.” T nbe G A T T M em orandum at 6 In light o f that vigorous and protracted debate, it is strange that Professor T n b e should d ism iss the political b ran ch es’ p ractice as a m ere m atter o f “political convenience ” Id at 11 17 If the S enate b eliev ed that this practice trenched on pow ers that belong to it, then it had “ b oth the in­ centive to protect its p rero g ativ es and institutional m echanism s to help it do so.” U nited S tates v M unoz- Flores, 495 U .S 385, 393 (1 9 9 0 ) The fact that it has not done so “ is relevant to the substantive task of interpretin g '’ the T reaty C lause Id at 404 n 2 (Stevens, J., c o n cu m n g in ju d g m en t) It is not at all unlikely lhat the Senate m ight guard ag ain st perceived encroachm ents on its constitutional prerogatives: as Professor T n b e notes, the Senate has in other recent contexts insisted on its claim ed prerogatives under the Treaty Clause. See T n b e G A T T M em orandum at 3 (V ienna C onvention); see also H arold H Koh, T he N ational S ecurity C onstitution at 43 (A nti-B allistic M issile Treaty)

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agreem ents are the law o f the land, superseding inconsistent state or federal laws.” Laurence H. Tribe, Am erican C on stitutional Law 228 n.18 (2d ed. 1988) (em phasis added). Historically, the scope o f the Treaty Clause, and its interplay with other consti­ tutional clauses, have provoked controversies o f several different kinds. The per­ sistence o f these controversies (which trace back to the eighteenth century), and the nearly com plete absence o f judicial decisions resolving them, underscore the ne­ cessity of relying on congressional precedent to in terpret the relevant constitutional provisions. N o one could deny that “congressional practice alone cannot justify abandonm ent o f the Constitution’s structural provisions,” 18 but it begs the question to assum e that the treaty ratification process is structurally required by the Consti­ tution in cases such as th is.19 Like other “great ordinances of the Constitution,” the Treaty Clause “do[es] not establish and divide fields of black and w hite.” S p rin ger v. G overnm en t o f the P h ilippin e Isla n d s , 277 U.S. 189, 209 (1928) (Holm es, J., joined by Brandeis, J., dissenting). One recurring kind o f dispute over the Treaty Clause has been whether interna­ tional agreem ents could be given effect by Executive action alone, or whether they required subm ission to the Senate fo r its concurrence. See, e.g., 2 M essages an d P a p ers o f the P residen ts 33 (James D. Richardson ed., 1896) (President M onroe’s message to the Senate o f April 6, 1818, expressing uncertainty whether the Execu­ tive alone could make an international agreem ent for the naval disarmament of the Great Lakes, or w hether Senate advice and consent was required).20 A second type

18 T rib e P rep ared S tatem en t at 299 19 P ro fe sso r T rib e 's rep eated invocation in th is connection o f IN S v C h a d h a , 462 U S 919 (1983), w hich in v alid ated th e o n e-H o u se “leg islativ e veto,” is n o t to the point See, e g , T rib e Prepared Statem ent at 299- 300, T rib e G A T T M em o ran d u m at 10-11 First, the Chadha C o u rt found A rticle l ’s provisions for bicam eral passage o f leg islatio n and its presentm ent to th e President, w hich it held offended by the legislative veto, to be “ [e ]x p licit an d u n a m b ig u o u s ” 4 6 2 U S at 9 4 5 . T h at can n o t b e said of the Treaty C lause, w hose m eaning and sco p e h ave long b een found lo be highly in d eterm in ate. S eco n d , the E xecutive, albeit not invariably, had long taken the p osition that the legislative veto v iolated sep aratio n o f pow ers principles. See id. a t 969-74 (W hite, J., d isse n tin g ); see also R eprogram m ing— Legislative C om m ittee O bjection , 1 O p O .L .C 133, 135 (1977) (In d eed , the Senate Ju d iciary C om m ittee, after careful historical study, reached a sim ilar conclusion See S R ep. N o 5 4 -1 3 3 5 , at 8 (1 8 9 7 ).) By c o n tra st, the practice o f subm itting m ajor trade pacts as C o n g re s­ sio n al-E x ecu tiv e ag reem en ts has obviously re q u ire d the ap p ro v al o f the S enate — the constitutional actor w hose p re ro g a tiv e s P ro fesso r T n b e asserts have been jeo p ard ized Finally, C hadha certainly does not im ply that the lo n g stan d in g p ractices o f the political b ran ch es are irre le v a n t to the interpretation o f the C on stitu ­ tion W e a lso n o te th a t w h ile it is generally true th a t leg islativ e p recedent is m ost persuasive when it can be traced b a ck to the N a tio n ’s fo u n d in g , se e T n b e G A T T M em o ran d u m at 10, T n b e Prepared Statem ent at 299, the C o u rt’s c ase law on the su b ject is in fact m o re com plex than Professor T rib e indicates Even early legis­ lative d e cisio n s m ay h av e v io lated the C onstitution, see, e g., N e w York T im es Co v Sullivan, 376 U S. 254, 276 (1 9 6 4 ) (S ed itio n A ct o f 1798 violated F irst A m endm ent). O n the o th e r hand, in U nited States v M id ­ w est O il C o., 236 U .S. 4 5 9 (1915), the C ourt u p held an 8 0 -y e a r old Presidential practice o f tem porarily w ithdraw in g public lands from e n try despite the absence o f any ex p ress grant o f authority for the practice It stated that “ in d e term in in g the m eaning of a sta tu te o r the e x isten c e o f a pow er, w eight shall be given to the usage its e lf — even w hen the v alid ity o f the p ra c tic e is the su b ject o f investigation.” Id at 473 P resid e n t M o n ro e ’s un certain ty over the sco p e and m eaning o f the T reaty C lause is particularly strik ­ ing, g iv en th at he h im se lf had sp o k en to the T re a ty C lause in the V irginia R atifying C onvention See 9 The

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of recurring dispute, more pertinent here, centered on the respective powers o f the Senate and the House of Representatives in such areas as the regulation of foreign trade, where different clauses of the Constitution assign responsibilities either to one House alone or to both Houses together. As Secretary of State Dulles ex­ plained in testimony before the Senate Judiciary Committee in 1953, there is an

undefined, and probably undefinable, borderline between interna­ tional agreements which require two-thirds Senate Concurrence, but no House concurrence, as in the case of treaties, and agreements which should have the majority concurrence of both Chambers of Congress. . . . This is an area to be dealt with by friendly coopera­ tion between the three departments of Government which are in­ volved, rather than by attempts at constitutional definition, which are futile, or by the absorption, by one branch of Government, of re­ sponsibilities which are presently and properly shared.

Treaties an d Executive A greem ents: H earings Before a Subcomm. o f the Senate Comm, on the Judiciary, 83d Cong. 828 (1953). Intra-branch disputes over the Treaty Clause can be traced as far back as 1796, when Representative Albert Gallatin argued that the “[t]reaty-making pow er . . . may be considered as clashing” with Congress’s “authority of regulating trade,” and that “[a] difference of opinion may exist as to the proper construction o f the several articles o f the Constitution, so as to reconcile those apparently contradic­ tory provisions.” 5 Annals of Cong. 437 (1796); see a lso id. at 466-74 (arguing that Foreign Commerce Clause limits Treaty Clause); Note, U nited States P a rtic i­ pation in the G eneral A greem ent on Tariffs a n d Trade, 61 Colum. L. Rev. 505, 511 (1961); contrast Tribe Letter at 3 (Treaty Clause limits Foreign Com m erce Clause). Again, in 1844, the Senate Foreign Relations Committee, under Senator Rufus Choate, presented a report on the Prussian and Germanic Confederation Treaty, in which the Committee urged rejection o f the treaty because “the legislature is the department o f government by which commerce should be regulated and laws of revenue be passed. The Constitution, in terms, communicates the power to regu­ late commerce and to impose duties to that department. It communicates it, in terms, to no other. W ithout engaging at all in an examination of the extent, limits, and objects o f the power to make treaties, the committee believe that the general rule of our system is indisputably that the control of trade and the function o f tax­ ing belong, without abridgement or participation, to Congress.” C om pilation o f Reports o f the Senate C om m ittee on Foreign Relations, 1 7 8 9 -1 9 0 1 , S. Doc. No. 56-231, pt. 8, at 36 (2d Sess. 1901).

D o c u m e n to r/ H isto ry o f the R a tifica tio n o f the C onstitution 1115 (John P. K am inski, G aspare J S aladino, et al eds., 1990), 10 id. ai 1235 (1993).

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From tim e to time, the House o f Representatives has also insisted that a treaty be m ade dependent on the consent o f both Houses of Congress. This has occurred when, for exam ple, the H ouse’s pow er over appropriations has been at issue, as in the G adsden purchase treaty of 1853 and the Alaskan purchase treaty of 1867.21 In 1880, the H ouse asserted that the negotiation of a commercial treaty that fixed du­ ties on foreign im ports would be an unconstitutional invasion of its prerogatives over the origination o f revenues; in 1883, it demanded, in connection with a pro­ posed com m ercial treaty with M exico, to have a voice in treaties affecting reve­ nue.22 In 1898, the U nited States annexed Hawaii by joint resolution, Joint Res. 55, 55th Cong., 30 Stat. 750 (1898), even though the Senate had previously rejected an annexation treaty, and even though opponents o f the measure argued strenuously both in Congress and in the press that such an annexation could be accomplished only by treaty, and not by a simple legislative act.23 M ore recently, the court in E dw ards v. C arter, 580 F.2d 1055 (D.C. Cir.) (per curiam ), cert, d en ie d , 436 U.S. 907 (1978), rejected the claim by members of the House of Representatives that the treaty power could not be used to transfer the Panam a Canal to Panama. The plaintiffs relied on the Constitution’s Property Clause, U.S. Const, art. IV, § 3, cl. 2, which commits to “[t]he Congress” the power “to dispose o f and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The court answered this claim by pointing out that

[t]he grant o f authority to C ongress under the property clause states that “The Congress shall have Power . . not that only the Con­ gress shall have power, or that the Congress shall have exclusive power. In this respect the property clause is parallel to Article I, § 8, which also states that “T he Congress shall have Power . . . .” M any o f the pow ers thereafter enum erated in § 8 involve matters that were at the time the Constitution was adopted, and that are at the present time, also commonly the subject of treaties. The most prom inent exam ple of this is the regulation of commerce with for­ eign nations, Art. [I], § 8, cl. 3, and appellants do not go so far'as to contend that the treaty process is not a constitutionally allowable means for regulating foreign commerce. It thus seems to us that, on its face, the property clause is intended not to restrict the scope of the treaty clause, but, rather, is intended to permit Congress to ac­

21 See L ouis Fisher, C o n stitu tio n a l C onjhcts b etw een C o n g ress a n d the P resident 2 26 (3d ed 1991) ^ Id a t 227 21 S e e M em o ran d u m for A braham D S o faer, Legal A dviser, D epartm ent o f Slate, from D ouglas W K m iec, A ctin g A ssistan t A ttorney General, O ffic e o f Legal C ounsel, Re. L egal Issues R aised bx P roposed P re sid e n tia l P ro cla m a tio n to E x te n d the T e rrito ria l Sea, 12 O p O L C 2 3 8 ,2 5 1 -5 2 (1988).

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complish through legislation what may concurrently be accom­ plished through other means provided in the Constitution.

580 F.2d at 1057-58. As the court noted, the Constitution on its face permits for­ eign commerce to be regulated either through the Treaty Clause or through the Foreign Commerce Clause. Nothing in the language of the Constitution privileges the Treaty Clause as the “sole” or “exclusive” means of regulating such activity.24 In actual practice, Congress and the President, understanding that nothing in the Constitution constrained them to choose one procedure rather than the other, have followed different procedures on different occasions.25 In general, these inter- and intra-branch disputes over the scope of the Treaty Clause have been resolved through the political process, occasionally with marked departures from prior practices. See G oldw ater v. C a rter , 444 U.S. 996, 1004 n.l (1979) (Rehnquist, J., concurring in judgm ent); John O. M cGinnis, C onstitutional R eview by the Executive in Foreign Affairs an d War P ow ers: A C onsequence o f Rational Choice in the Separation o f P o w e rs , 56 Law & Contemp. Probs. 293, 305-08 (1993). For example, after the House o f Representatives objected to the concentration of power over Indian affairs in the hands of the Senate through the Treaty Clause, Congress in 1871 enacted a rider to an Indian appropriation bill

24 A ccordingly, it has been held that a trade agreem ent ex ecu ted by the President pursuant to the R ecipro­ cal T rade A greem ents Act o f 1934, Pub L. N o 73-316, 4 8 Stat 943, w as a valid exercise o f C o n g re ss's delegated Foreign C om m erce C lause pow ers together w ith the P resid en t’s inherent pow ers, and did not require separate ratification as a treaty, even if com m ercial treaties m ight also have covered the sam e subject m atter See S ta r-K ist Foods, Inc v U nited S tates, 275 F 2d 47 2 , 4 83-84 (C C .P.A 1959) 25 T h e difficulties in attem pting to privilege the A rticle 11 treaty ratification process ov er the pow ers c o n ­ ferred by A rticle I on C ongress as a whole can be illustrated from Professor T n b e ’s ow n discussions o f the w ar pow ers. Professor Tribe has recently jo in ed several o th er professors o f law in arguing that “ the totality o f C o n g ress’s A rticle I, § 8 pow ers reserves to C ongress a lo n e the prerogative and duty to authorize in itia­ tion o f h o s tilitie s ” L etter for W alter D ellinger, A ssistant A ttorney G eneral, from Professor L aurence H. T n b e and others, at 3 (n d ; fax received O cto b er 14, 1994) (em phasis added). O n that assum ption, the existence o f a mutual defense treaty betw een the U nited States and an ally, duly ratified by the Senate, would be legally insufficient, in the absence o f further bicam eral action by C ongress, to ju stify engagem ent in hos­ tilities. Yet Professor Tribe has w ritten elsew here that “ [cjollective defense treaties have becom e the w ay of m ilitary life in this century T hese treaties, ratified by the President pursuant to the consent o f the Senate, generally com m it the U nited States to com e to the aid o f any signatory lhat is m ilitarily attacked. W hether these treaties can serve as a predicate for executive deploym ent o f m ilitary force has not been resolved. It seem s unlikely that, in the absence o f a declaration o f w ar by C ongress, a prolonged m ilitary operation would be san ctio n ed by such a treaty Even if the treaty is, in a sense, an inchoate declaration of w ar, it is one form ulated by the treatym akers — that is, the President and the Senate — not by the C ongress as the C o n ­ stitution dem ands M ore plausible, how ever, is the suggestion that a collective defense treaty ju stifie s p re si­ dential use o f force in support o f a harried ally until C ongress has had am ple time to determ ine w hether it favors A m erican m ilitary involvem ent m the co n flict.” Laurence H. T ribe, Am erican C o n stitutional L aw at 233-34 (footnotes om itted) O ur point is not that there may be an inconsistency b etw een the bald claim that A rticle I reserves to C o n ­ gress alone the pow er to authorize the initiation o f hostilities, and the m ore nuanced view that a m utual defense treaty can suffice to authorize interim m ilitary action on b eh alf o f an ally (In fact, the positions m ight be reconciled ) Rather, we cite these w ritings only to sh o w that a constitutional scholar as serious and thoughtful as Professor T ribe may experience difficulty m saying precisely when the Article 1 pow ers of C ongress overlap w ith, when they oust, and w hen they are o u sted by, the S en a te ’s treaty pow er under A rticle II

239 Opinions o f th e Office o f L eg a l C ounsel

declaring that no fresh treaties were to be made with the Indian nations. Act of Mar. 3, 1871, ch. 120, 16 Stat. 544, 566. Although the United States had been making Indian treaties for almost a century before that enactment, see U nited S tates v. K a g a m a , 118 U.S. 375, 382 (1886), after 1871 “the federal government continued to m ake agreements with Indian tribes, many similar to treaties, that were approved by both Senate and H ouse,” but “the H ouse’s action sounded the death knell for treaty m aking.” Felix S. Cohen, H andbook o f F ederal Indian L aw 107 & n.370 (1982 ed.). The policy o f the 1871 enactment remains in effect. See 25 U.S.C. § 71. W e are uncertain whether this longstanding legislation would be constitutional by Professor Tribe’s lights.26 T he existence o f such recurring disputes over the scope and meaning of the Treaty Clause underm ines any dogmatic claim that a major trade agreement such as the U ruguay Round Agreements, w hich stands at the intersection of the foreign affairs, revenue raising and commerce powers, m ust be ratified as a treaty and can ­ not be im plem ented by the action o f both Houses of Congress. The distinctions between the Federal governm ent’s treaty power and the other constitutional powers in play are sim ply too fluid and dynam ic to dictate the conclusion that one method must be follow ed to the complete exclusion of the other. Here, if anywhere, is an area where the sound judgm ent of th e political branches, acting in concert and ac­ com m odating the interests and prerogatives of one another, should be respected. It is simply mistaken to suggest that this established practice of mutual adjustment and cooperation on a constitutional question of inherent uncertainty27 reflects mere “political convenience rather than constitutional commitment.” Tribe Prepared Statem ent at 300. None o f the three political branches involved in working out the procedure for Congressional-Executive agreements has abdicated its constitutional responsibility; none has endangered the basic, structural provisions of Articles I and II. Finally, Professor T rib e’s newly-crafted account of the treaty power entails that the Federal G overnm ent may diminish State sovereignty by employing the Treaty Clause to ratify an international agreement, but not by using any other constitu-

26 In terestin g ly , in a footnote in his treatise, P ro fesso r T ribe w rites that “ the pow er o f C ongress to regulate com m erce w ith Indian trib es has b een rendered partly superfluous by the Suprem e C o u rt’s extension o f the treaty po w er to en co m p ass federal treaties w ith Indian tribes " L aurence H Tribe, A m erican C onstitutional Law at 305 n. 1 T h is d escrip tio n indicates th a t Professor T rib e believes (correctly, in our view ) that the Indian C o m m erce C lau se and the Treaty C lause overlap, and that either m ay be used as a source o f legal authority for the Federal G o v e rn m e n t’s dealings w ith the Indian tribes If so, then the T reaty C lause and the Foreign C om m erce C lau se o u g h t equally to p ro v id e sources o f authority for the U nited S ta te s’s regulation o f c om m erce w ith foreign nations 27 It has long been reco g n ized that Article II confers the treaty pow er “ in general term s, w ithout any d e ­ scription o f the o b jects in ten d ed to be em braced by it.’’ H o lm es v Jennison, 39 U S . (14 P e t) 540, 569 (1840) (p lu rality op ) M ore generally, '‘[o]ne can n o t read the C onstitution w ithout being struck by its as­ tonishing b rev ity reg ard in g the allocation of fo reig n affairs a u th o rity am ong the branches . [T]he d o cu ­ m ent g ran ts clearly related pow ers to separate institutions, w ith o u t ever specifying the relationship betw een those po w ers, as fo r ex am p le, w ith C ongress’s pow er to d eclare w ar and the presid en t’s pow er as com - m a n d e r-in -c h ie f." H arold H. K oh, T he N ational S ecu rity C o n stitu tion at 67

240 W hether U ruguay Round A greem ents R equired R atification as a Treaty

tional procedure for giving such an agreement effect. Basic to Professor T ribe’s analysis is the assumption that som e “set of intrusions on state sovereignty is suffi­ ciently grave to trigger the requirements of the Treaty Clause.” Tribe Prepared Statement at 307. On this view, the Federal Government is not constitutionally prohibited from curtailing State sovereignty to a certain degree, but it may not ac­ complish such a curtailment by the ordinary Article I process of legislation. We find that conclusion odd and unconvincing. If the Federal Government may not trespass on State sovereignty beyond certain limits, then the attempt to do so by making a treaty would not remove the constitutional infirmity: it is by now well- established that treaties may not violate basic constitutional ordinances, including the principles of federalism. See, e.g., R eid v. C overt, 354 U.S. 1 (1957); see also Laurence H. Tribe, Am erican C onstitutional Law at 228. On the other hand, if it does lie within the Federal G overnm ent’s power to curtail State sovereignty under an international agreement, we see no reason why the Government may not invoke Article I procedures for giving effect to that agreement.28 In short, if the Uruguay Round Agreements unduly invade State sovereignty, ratification as a treaty will not save them from u n c o n s titu tio n a l; if they are not an undue invasion, they can be given effect by Act of Congress.

II. The Uruguay Round Agreements and Presidential Power

In considering Professor Tribe’s critique of the Uruguay Round Agreements — which focuses on the asserted impairment that the agreement causes to State sover­ eignty29— it should be borne in mind that judicial decisions have treated G A TT as effectively a “Treat[y],” and hence “supreme Law,” within the meaning o f the Su­ premacy Clause, U.S. Const, art. VI, § 2, and have held provisions of State law to be superseded by the GATT when in conflict with it.30 It is also important to re-

28 W e do not think that M issouri v. H o lla n d , 252 U S 4 1 6 (1920), establishes the contrary Language from Justice H o lm e s’s opinion in that case has been taken to im ply that treaties m ight lim it Slate sovereignty in w ays that A cts o f C ongress could not Id at 433. B ui the C o u rt’s la te r ju risp ru d en ce has undercut any such su pposition. As Professor T ribe has w ritten, “M is s o u n v H o lland view s the treaty pow er as a delegation o f authority to federal treaty-m akers independent o f the delegations em bodied in the enum eration o f C o n g ress’ ow n pow ers. The decision thus sanctions a legal regim e w herein certain subjects m ay be exclu­ sively w ithin the am bit o f the states w iih respect to dom estic legislation, b u t not w ith respect to international agreem ents an d law s enacted by C ongress pursuant thereto The im portance o f treaties as independent sources o f co n g ressio n al pow er has waned substantially in the years since M is s o u n v H olland, how ever, the Suprem e C ourt m the intervening period has so broadened the scope o f Congress* c o n stitutionally enum er­ ated pow ers as to provide a m p le basis f o r m o st im aginable legislative e nactm ents q u ite apart fr o m the treaty pow er.” L aurence H. T n b e, A m erica n C o n stitu tio n a l L aw at 227 (em phasis added) ?9 See, e g , T n b e Prepared Statem ent at 302. 30 See In ter-M a ritim e F o n va rd in g Co. v U nited States, 192 F Supp 6 3 1 ,6 3 7 (C u st Ct 1961), B aldw in- Lim a-H anulton Corp. v S u p erio r C ourt, 208 C al A pp.2d 803, 819-20, 25 C al Rptr. 798 (1962), Territory' v. Ho, 41 H aw 565, 568 (1957), see also B ethlehem S teel C orp v B oa rd o f C o m m ’rs o f D e p ’t o f W ater & Pow er, 276 C al A pp 2d 221, 80 Cal R ptr 800, 804 n 9 (1 9 6 9 ) (finding it unnecessary ‘‘to delv e into an extensive an aly sis o f the effect o f G A T T ” on State law because federal po w er to conduct foreign trade policy “is exclusive in this Field'*), K S B Tech. Sales Corp. v N orth Jersey D ist W ater S u p p ly Comm ’n, 3 8 1 A .2d 774, 778 (N J 1977) (”‘[t]he legal significance o f G A T T has been considered by all parties as equivalent to

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m em ber that the existing GATT arrangem ents include dispute resolution proce­ dures, w hich often involve referring disputes to panels of individuals, who act in an individual and not a governmental capacity.31 Professor Tribe does not contend that the existing version o f GATT o r the dispute resolution procedures that have developed under it are unconstitutional as applied to the Federal or State govern­ ments o f this country; rather, he alleges that “[t]he Uruguay Round’s establishment o f the W orld Trade Organization [the WTO] and its dispute resolution mechanisms represents a [constitutionally] significant departure from prior versions of G A TT .”32 Specifically, Professor T ribe objects that if the W TO ’s dispute settle­ ment body (or an A ppellate Body on appeal) w ere “to find a United States law ‘G A TT-illegal,’ the United States w ould be bound by that decision unless it could persuade the entire G A TT m em bership by consensus to overturn the adverse deci­ sion. . . . U nlike other W TO decisions under the Uruguay Round, dispute panel decisions, or Appellate Body decisions in the instance o f an appealed case, would be final, unless every W TO Member nation agrees to reject the panel or Appellate B ody’s recom m endation. . . . This ‘reverse consensus’ requirement is a 180-degree turnaround from prior G A TT practice; it means that individual nations, including the United States, no longer maintain a de facto veto over GATT dispute panel decisions. This turnaround . . . is alone sufficient to distinguish the Uruguay Round’s potential effects on state sovereignty from the effects o f all previous G ATT agreem ents.”33 U nder existing G A TT practice, “the Contracting Parties, acting jointly as a whole, have jurisdiction over the final disposition of the dispute procedure.”34 Although decisions on adoption of panel reports have always been m ade by con­ sensus, the existing G A TT permits a vote on these matters. Thus, while the United States, in practice, can exercise a “ veto” over any adverse panel decision, this could be changed under existing G A T T rules. The Uruguay Round Agreements

that o f a treaty . . In the co n te x t o f this litigation we do lik e w ise ” ), appeal dism issed, 4 35 U .S. 982 (1978); D elta C hem . C o rp v. O cean C o u n ty Utils A u th ., 554 A .2d 1381, 1384 ( N J 1988) (G A T T exception ap ­ plied to sew e ra g e facilities p roducts purchased b y county), a f f d in part a n d r e v ’d in p a rt, 594 A 2d 1343 (N .J 1991); A rm stro n g v. Ta xa tio n D iv D irector, 5 N J Tax 117, 133 (1983) (“[ajssum ing that the states are boun d by the pro v isio n s o f G A T T , im position o f the New Jersey sales and use tax on sales o f gold coins and go ld and s ilv e r b u llio n does not discrim inate against sales o f products o f a signatory nation”), a f f d , 6 N.J. T ax 4 4 7 (1 9 8 4 ), 4 0 C al A tt’y G en 65 (1 9 6 2 ), 36 Cal. A tt'y G en 147, 1 4 9 (1 9 6 0 ); 34 C al. A tt’y G en. 302, 30 4 -0 5 (1 9 5 9 ), h u t s e e A m e rica n Inst fo r Im p o r te d Steel, Inc. v. C ounty o f Erie, 58 M isc 2d 1059, 297 N Y S 2d 602, 607 (1 9 6 8 ) (certain G A TT p ro v isio n s did not a p p ea r “in and o f them selves [to] supersede local leg islatio n "), r e v ’d, 32 A .D .2d 231, 302 N .Y .S .2 d 61 (N .Y A D . 1969). S e e g enerally John H Jackson, The G e n era l A g r e e m e n t on Tariffs a n d Trade in U n ited States D o m estic Law , 66 M ich L R ev 249, 280-89 (1967) (G A T T has d o m estic legal effect in the U n ite d States in so fa r as it is P residentially proclaim ed), id at 297-311 (G A T T is d irectly a p p licab le to state a n d local go v ern m ents in the U nited States and supersedes con flictin g state o r local law ) 31 Se e Jo h n H. Jack so n , G A T T a s an In stru m en t f o r the S e ttle m en t o f T rade D isputes, 1967 Proc. Am. S o c ’y In t’l L. 144, 147-48, 151. 32 T n b e P rep ared S tatem en t at 302 33 Id. a t 30 3 -0 4 . 34 Joh n H Jack so n , G A T T a s an Instrum ent f o r the S e ttlem en t o f Trade D isputes, 1967 Proc A m S o c ’y IntT L. at 149

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would alter this procedure by making the panel’s or Appellate B ody’s report final unless the W TO States “decide[] by consensus not to adopt the [panel or] Appel­ late Body report” within a set period.35 Professor Tribe appears to take this proce­ dural alteration — the loss of the d e fa c to “veto” — as constitutionally decisive. When one asks why that should be so, it appears that his answer is that under the new dispute resolution process, “states to a significant degree will be forced to place their fates under the Uruguay Round in the hands o f the Executive Branch, which may have incentives counter to those of particular states in the context of particular disputes . . . . [T]he Executive Branch, not Congress, . . . would deter­ mine the fate of state laws found to be in violation of GATT. If a state chose not to alter a measure found by the W TO to be GATT-illegal, the United States Trade Representative could choose to bring an action against the state in a federal court, see S. 2467, 103d Cong., 2d Sess. § 102(b)(2) (1994) . . . — even if Congress had chosen to allow the state’s measure to remain in effect and to accept trade sanc­ tions on behalf of the entire nation rather than preempt the offending state law .”36 W e do not understand why Professor Tribe finds constitutional significance in the Uruguay Round’s “reverse consensus” requirement. Under the current version o f GATT, the States could equally well be said to be “ in the hands of the Execu­ tive,” for the simple reason that the President, as the sole constitutional actor who may represent the United States abroad, alone speaks for the United States in the GATT organization. Thus, the P resident, through his delegate, possesses the “veto” over the outcome of a dispute resolution under existing G ATT practice, and m ay refuse to exercise it.37 In other words, State laws may, even under the current version of GATT, be finally determined to be “GATT-illegal” unless the executive branch takes affirmative action to prevent that result.38 Moreover, it is misleading to suggest that the W TO procedures of the Uruguay Round Agreements place State law “at the mercy of the Executive Branch and the Trade Representative.”39 As Professor Tribe himself explains, even if the execu­ tive branch decides to bring an action against a State for the purpose o f having a State law declared invalid for inconsistency with the Uruguay Round Agreements, the implementing legislation explicitly precludes the W TO panel’s (or Appellate B ody’s) report from being considered “binding or otherwise accorded deference”

,5 A greem ent Establishing The W orld T rad e O rganization, Annex 2, U nderstanding on Rules and Proce- dures G overning the S ettlem ent o f D isputes, Art 17 14, 33 I L M 9, 124 (1994) W e note that voting is precluded under the new procedures. 36 T ribe Prepared Statem ent at 303-04 A ctually, the A ttorney G eneral, not the Trade R epresentative, would bring any such suit 37 T his is not to say that the U ruguay R ound A greem ents w ould not provide the President w ith different incentives from those that exist under the current G A TT arrangem ents. But the point rem ains that even under existing arrangem ents, it w ould require Executive action to forestall a G A T T finding that a State law was inconsistent w ith this c o u n try ’s com m itm ents under the pact 38 W e note also that the possibility that State laws may be held invalid because they con flict w ith the provisions o f G A T T is nothing novel in itself, as discussed above, the courts (including State co u rts) have held that State law cannot be applied if it is inconsistent w ith the current version o f G A T T . 39 T n b e Prepared Statem ent at 305

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by the court that hears the case. S ee S. 2467, § 102(b)(2)(B)(i). Thus, the State law cannot be declared invalid by the executive branch acting unilaterally, even if the executive is armed with a W TO report that has found the State law GATT- illegal; rather, the independent action of another branch o f the government — the courts — is required.40 Furtherm ore, given the breadth o f the joint authority o f Congress and the Presi­ dent in the field o f foreign relations, it would be the truly extraordinary case indeed in which Presidential action in that area, when supported by an Act of Congress, could am ount to an unconstitutional invasion o f State sovereignty. See Young­ stow n Sheet & Tube Co. v. S aw yer, 343 U.S. at 635 (Jackson, J., concurring) (Presidential pow er in such cases is “at its m axim um ”). The Supreme Court has held that even u nilateral Executive action, relying on the President’s inherent con­ stitutional pow ers alone, may constitute a “treaty” for purposes of the Supremacy Clause, and hence supersede contrary State law. Thus, in U nited S tates v. Belmont, 301 U.S. 324, 331-32 (1937), the C ourt upheld a unilateral Executive agreement in the face o f contrary State law, declaring that

com plete pow er over international affairs is in the national govern­ m ent and is not and cannot be subject to any curtailment or interfer­ ence on the part o f the several states. . . . In respect o f all international negotiations and compacts, and in respect of our for­ eign relations generally, state lines disappear. As to such purposes the State of New York does not exist. W ithin the field of its pow­ ers, whatever the United States rightfully undertakes, it necessarily has warrant to consummate.

In U nited S tates v. Pink, 315 U.S. 203, 233 (1942), the Court, again upholding a unilateral Executive agreem ent over State law, reaffirmed that “[p]ower over ex­ ternal affairs is not shared by the States; it is vested in the national government

40 P ro fesso r T rib e ack n o w led g es that the d e ta iled schem e o f the im plem enting legislation, which is de- signed to m ake recourse to the c o u rts unlikely, ’‘o ffers a notew o rthy protection to states.” T ribe Prepared S tatem en t at 305 T he im plem en tin g legislation w o u ld set up a F ederal-S tate consultation process to keep the States inform ed o f U ruguay R ound A greem ents m atters th at w ould affect them . T he States are to be notified by the U nited States T rad e R epresentative o f actions b y foreign W T O m em bers that m ight draw their law s into the W T O dispute resolution p ro c e ss, consulted regarding the m atter, and involved in the develo p m en t o f this c o u n try 's p o sitio n if the m a tte r is taken up in the dispute resolution process. Should the W TO find a S tate law to be G A T T -illegal, the T ra d e R epresentative m ust c onsult w ith the State concerned in an effort to d ev elo p a m utually ag reed response. See S 2467, § 102(b)(1) In short, the States are to be continuo u sly and clo sely in v o lv ed w ith the E xecutive in any m atter that may involve a challenge to State law under the U ruguay R ound A greem ents. T he im p lem en tin g legislation provides other im p o rtan t p ro tectio ns to State law No plaintiffs other than the execu tiv e b ran ch m ay ch allen g e a State law fo r inconsistency w ith the U ruguay R ound A greem ents, and in any action it brin g s, the Executive bears the b u rd e n o f proof. B efore bringing any such action, m oreover, the e xecu tiv e b ranch m ust rep o rt to, and consult w ith, co n g ressio nal com m ittees in both H ouses Se e S 2467, § 102(b)(2). H ere again, as in the WTO p h a se o f any ch allenge to Stale law, the political branches m ust tak e acco u n t o f the S ta te ’s view s.

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exclusively. It need not be so exercised as to conform to state laws or state poli­ cies, whether they be expressed in constitutions, statutes, or judicial decrees.” Again, in Zschernig v. M iller , 389 U.S. 429, 432, 434 (1968), the C ourt struck down a State probate statute requiring an inquiry into “the type of governm ents that obtain in particular foreign nations” as “an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the C ongress.” And in Hines v. D avidow itz, 312 U.S. 52, 68 (1941), the Court stated that the field of international relations is “the one aspect o f our government that from the first has been most generally conceded imperatively to demand broad national author­ ity.” See also U nited States v. California, 332 U.S. 19, 35 (1947) (“peace and world commerce are the paramount responsibilities of the nation, rather than an individual state” ); The Chinese Exclusion Case, 130 U.S. 581, 606 (1889) (“[f]or local interests the several States of the Union exist, but for national purposes, em ­ bracing our relations with foreign nations, we are but one people, one nation, one power”); Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (the Federal Government “has the power to regulate commerce with foreign nations: the responsibility for the character o f those regulations, and for the manner o f their execution, belongs solely to the national government. If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.”); H olm es v. Jenni- son, 39 U.S. (14 Pet.) at 570 (plurality op.) (“[a]ll the powers which relate to our foreign intercourse are confided to the general governm ent”); cf. Banco N acional de Cuba v. Sabbatino, 376 U.S. 398, 424 (1964) (problems posed by “act o f state” doctrine implicate foreign relations and thus “are uniquely federal in nature”); G oldw ater v. Carter, 444 U.S. at 1005, n.2 (Rehnquist, J., concurring in the judg­ ment) (State courts may not “trench upon exclusively federal questions o f foreign policy”).41 Accordingly, we cannot agree that the powers assigned to the President by the Uruguay Round Agreements and their implementing legislation would be uncon­ stitutional (unless the agreement were ratified as a treaty) because they m ight be exercised in a manner that persuaded the courts to rule that State laws were super­ seded. Against the massive powers of Congress and the President, acting together, to control the N ation’s foreign policy and commerce, the claims of State sover­ eignty have little force.42

41 D ecisions such as these place w holly beyond doubt the “general constitutional principle that, w hatever the division o f foreign policy responsibility within the national governm ent, a ll such responsibility is reposed at the national level rather than dispersed am ong the states and localities. . It follow s that all state action, w hether or not consistent w ith current federal foreign policy, that distorts the allocation o f responsibility to the national governm ent for the conduct o f A m erican diplom acy is void as an unconstitutional infringem ent upon an exclusively federal sphere o f responsibility " Laurence H. T n b e , A m erican C o n stitu tio n a l Law at 230.^ 42 In the context o f dom estic legislation that assertedly threatens to im pair Stale sovereignty, the C ourt has held lhat “Slates m ust find th eir protection . . through the national political pro cess.'’ South C a rolina v. Baker, 485 U S 505, 512 (1988) If lhat is the case w hen C ongress acts under the Interstate C om m erce Clause, the States procedural rights in the national legislature can hardly be more extensive w hen tne F or­ eign C om m erce C lause is the source o f C o n g ress’s auth o n ty See, e g., B ethlehem S te e l C orp v B o a rd o f

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III. The World Trade Organization

Professor Tribe has also argued that the U ruguay Round Agreements must be ratified as a treaty because its W T O dispute settlement procedures undermines State sovereignty d ire c tly , rather than by vesting the power to do so in the Presi­ dent. U nfortunately, Professor T rib e’s description of the W TO ’s powers, scope and functions is m istaken.43 The proposed arrangem ents for the W TO do not rep­ resent an invasion of State sovereignty that can be cured only if the Uruguay Round A greem ents are ratified as a treaty; rather, the Uruguay Round Agreements are sim ilar in kind to earlier, Congressionally-approved trade pacts, including NAFTA and the Tokyo Round Codes, that were not, and that did not have to be, ratified as treaties.44 In Professor T ribe’s view, the “basic thrust” o f the Uruguay Round Agreements is “that it would em pow er international tribunals effectively to override state laws.”45 Hence, he argues, approval by tw o-thirds of the Senators present is re­ quired, because “[t]he Senate . . . rem ains the principal body in which the States qua States are represented in our N ational G overnm ent.”46 However, as the court has recently found in P u blic Citizen v. Kantor, 864 F. Supp. 208, 214 (D.D.C. 1994),

C o m m 'rs o j D e p ’t o f W ater & P o w er, 80 C al R ptr. at 803, 804 (“ [t]he C alifornia Buy A m erican Act, in effectively p lacing an em b arg o on foreign p ro d u cts, am ounts to a usurpation by this state of the pow er o f the federal g o v ern m en t to co n d u ct fo reig n trade p o lic y . . . O nly the federal governm ent can fix the rules o f fair co m p etitio n w hen su ch co m p etitio n is on an in tern atio n al basis. Foreign trade is properly a subject o f na­ tional c o n ce rn , not state regulation. . A state la w m ay not stan d ‘as an obstacle to the accom plishm ent and execution o f the full purposes and objectives o f C o n g re ss.’“) (q u o tin g H ines v D avidow itz, 312 U S at 67). 43 S e e g e n era lly L etter for Professor L aurence H T n b e from A m bassador M ichael K antor, U S Trade R ep resen tativ e (O ct 1 4 ,1 9 9 4 ) 44 See, e g , 19 U .S.C § 2503 45 T n b e L etter at 2; se e a lso id. at 3 (an A c t o f C ongress im plem enting the U ruguay Round A greem ents w ould “d e le g a te ] to an in tern atio n al body such as a W TO tn b u n a l the pow er effectively to override a state tax o r reg u latio n ’). 46 Id. at 2 W e do not d isp u te that, at least a t the tim e o f th e Fram ing, the S enate’s role in the treaty- m aking pro cess was seen as p ro tectin g the S tates, and especially the sm aller States vis-a-vis the larger ones. See O L C G A T T M em o ran d u m at 6 n. 11 It is op en to q u estio n , how ever, w hether the Senate was vested w ith a sh are in the treaty -m ak in g pow er only, o r even p n m a n ly , because o f the ties betw een the S enate and the S tates. T he F ram ers ap p ear to have thought that the Senate w ould function as a kind o f council o f advis­ ers to the P resident on foreign p o licy matters, a n d accordingly stressed c haractenstics o f the Senate such as the sm alln ess o f its num bers, the relatively lo n g tenure o f its m em bers, and the insulation o f Senators from the p o p u la r electorate, in ju stify in g its role in the treaty -m ak in g process See The F ederalist No. 75 (A le x a n d er H am ilton); No. 64 (John Jay), see a ls o G n ffin B. B ell & H M iles Foy, The President, the C on­ gress, a n d the P a n a m a C a n a l A n Essay on th e Pow ers o f th e E xecutive a n d L egislative B ranches in the F ield o f F o reig n A ffa irs, 16 G a. J. In t’l & C o m p . L at 624-25 In any event, the S enate w ould not be ex­ clu d e d from the process by w hich the U ruguay R ound A greem ents are approved and im plem ented, on the contrary, it is obvious that S enate passage is n e ce ssa ry for the im p lem enting legislation to becom e law. F urtherm o re, “[i]t has n ev er b een doubted th at rep resen tativ es in C ongress . represented the entire people o f the State acting in th eir sovereign c a p a c ity ” M cP h erso n v B lacker, 146 U .S 1 ,2 6 (1892) Thus, the H ouse, as w ell as the Senate, provides the S ta te s w ith a forum in w hich their distinctive interests can be protected.

246 W hether Uruguay R ound A greem ents R equired R atification as a T reaty

the resolution mechanisms contained in the [Uruguay Round] trade agreement permit disputes to be settled without altering domestic law. If a domestic law is found to violate the agreement, the de­ fending party may implement the decision, negotiate a solution, or pay compensation.

Neither the WTO, nor any dispute settlement panels, will have the authority to en­ ter injunctions or impose monetary sanctions against member countries. N or will they be able to order any m ember country that has a federal system to change its component governments’ laws. While a W TO dispute settlement may opine on whether a law is inconsistent with a m em ber’s obligations under the Uruguay Round Agreements, it is up to the parties to decide how to resolve the situation. The com plaining country may suspend reciprocal trade concessions if alternative forms of settlement — e.g., compensation in the form o f additional trade conces­ sions, or a change in the defending country’s domestic law — are not made. The suspension of trade concessions by a complaining country is likely to mean a tem­ porary increase in the tariffs it imposes on the defending country’s goods. No sus­ pension o f trade concessions can exceed the amount of the trade injury. Because our foreign trading partners would be able to increase tariffs on American goods even more easily in the absence of a trade agreement, it is hard to see how the at­ tempt in the Uruguay Round Agreements to resolve trade disputes between mem ­ ber countries and to prevent the unilateral imposition of retaliatory tariffs could amount to an unconstitutional invasion of State or local sovereignty.47 Professor Tribe objects that it is “no answer that the United States might choose to pay whatever fine is levied by the WTO rather than sacrifice the sovereignty of one of the fifty States, for that makes each State’s sovereignty a hostage to the Fed­ eral G overnm ent’s willingness to impose a tax burden on the Nation as a whole. It also puts each State in the dilem ma of either accepting the tax burden on its citi­ zens entailed by having the United States pay a W TO fine, or protecting its citizens from that burden by lobbying against the fine and urging instead that the offending State be brought to heel.”48 Setting apart the factual error of assuming that the WTO has the power to “lev[y]” a “fine,” Professor T ribe’s argument buries the critical point that it is only the U nited States, not the WTO, that would wield the power to limit or displace State law.49 Even if United States participation in the

47 W e have explained in som e detail how the W TO procedure works in the O LC G A T T M em orandum , at 7-8 Furtherm ore, N A FTA , like the U ruguay R ound A greem ents, built in the possibility that State law s and regulations m ight be challenged before international panels in dispute resolution proceedings fo r in co n sis­ tency w ith the U nited Staies’s obligations under the trade pact, and that a com plaining country that prevailed before a panel was entitled to suspend trade co n cessio n s S ee id at 2 In light o f lhat history, w e fail to understand how Professor T n b e w ould distinguish the U ruguay Round A greem ents from N A FT A or the U nited States-C anada Free Trade A greem ent. 48 T n b e L etter at 2. 49 Such displacem ent o f S tate law, if accom plished by the legal action o f the Federal G overnm ent, w ould require eith er an A ct o f C ongress, o r in the alternative a ju d ic ia l decision in a law suit brought by the e x e c u ­

247 Opinions o f th e Office o f L egal C ounsel

W T O ’s dispute resolution procedure might create incentives that would otherwise not exist to set aside some State laws, Congress can certainly structure the range of its future choices in a way that tends to have that effect.50 There is in such a deci­ sion no “m eaningful shift o f control over state sovereignty to foreign tribunals.”51

Conclusion

W e rem ain persuaded that, in deciding not to submit the Uruguay Round Agreem ents to the Senate for the concurrence o f two-thirds of the Senators present, the President is acting in a wholly proper and constitutional manner. Like other recent trade agreem ents, including NAFTA, the United States-Canada Free Trade Agreement, the United States-Israel Free Trade A greement and the Tokyo Round A greem ent, the Uruguay Round Agreem ents may constitutionally be executed by the President and approved and implemented by Act of Congress.

W A LTER DELLINGER A ssistan t A ttorn ey G en eral O ffice o f L egal Counsel

tive branch. In eith e r case, State law would n o rm ally be superseded only if tw o branches o f the national go vernm en t (th e P resid en t and C ongress, or the P resid en t an d th e Federal co u rts) acted together. 50 T h is is true even assum ing th at “ [u]nder th e U ruguay R ound, a new dynam ic w ould characterize rela­ tions betw een slates and fo reign nations and b e tw ee n states and the federal g o v e rn m e n t” Tribe Prepared Statem en t at 307. 51 T n b e L e tte r at 2.