NAFTA and GATT

[Sanford Levinson]

Michael writes:


>(1) I was under the impression that NAFTA does *not*
>eliminate the need for Senate ratification, but only
>establishes the procedural rule that the Treaty will
>receive an up-or-down vote. This in itself raises the
>constitutional question (common to the line item veto case)
>whether the rules of procedure for each House can be set by
>a statute; but unless and until either House purports to
>modify these rules I would assume that question will not be
>ripe.

The very point of NAFTA is that it is the North American Free Trade
*Agreement* (emphasis added), so there is literally nothing for the Senate
to "ratify" as a treaty.  This, then, brings up Michael's second point:

>(2) There is the further question whether the treaty
>mechanism of Article II is the exclusive means by which
>agreements with foreign countries may be reached. Perhaps
>it is legitimate for Congress to pass ordinary legislation
>governing trade with foreign nations, pursuant to Art. I,
>Sec. 8, and to do so on condition that the President
>has reached an agreement (not binding in itself) with other
>countries. In that case, the ensuing legislation would not
>have the status of a "treaty" under international law, and
>would be confined to otherwise enumerated federal powers,
>unlike Missouri v. Holland.
>
I suspect that Michael's beloved framers would have been almost as shocked
to hear that the treaty mechanism was non-exclusive, at least in regard to
such substantial acts of state as NAFTA and GATT, as to hear that Article V
is not the exclusive means of amending the constitution.

I assume, incidentally, that Congress can always pass "ordinary legislation"
in regard to almost all subjects of treaties.  I.e., if we want to stop
producing chemical weapons, then all Congress has to do is to stop funding
them.  Same for land-mines, etc.  Or Congress could simply have agreed to
the US joining the League of Nations.   What is it (and this is not a
rhetorical question, for I realize how little I in fact know about such
questions) that makes treaties special?

Sandy