Many courts have said that if something looks like a duck and quacks like a duck, well then it must be a duck. NAFTA, the North American Free Trade Agreement, looks like a treaty, quacks like a treaty and is often referred to as a treaty. The US Constitution allows only one way to enact a treaty: two-thirds of the Senate must concur.
That is not how NAFTA was enacted. It was passed by simple majority legislation by less than two-thirds of the members of the Senate and a simple majority in the House. A treaty is an agreement among nations. NAFTA is such an agreement, entered into among the United States, Canada and Mexico. In fact, the Spanish version of NAFTA calls it a treaty (a tratado) and Mexico passed NAFTA as a treaty under its constitution, which was modeled after ours.
A case challenging NAFTA (brought by the Made in the USA Foundation and the United Steelworkers of America) has been winding its way through the courts for years. The 11th Circuit Court of Appeals sitting in Atlanta refused to rule on the merits of the case. (The lower court ruled on the merits that NAFTA was a treaty.) The court of appeals ruled that the case presented a "political question" and refused even to consider the merits of the case. The first Monday after Thanksgiving the Supreme Court issued a turkey of a decision by refusing to hear an appeal. This was one of the most important decisions facing the court in many years and involves the Constitutionality of all of our trade agreements.
The Supreme Court has usually declined to take cases that present political questions. Of course, many cases have political ramifications, like Roe v. Wade (abortions) and Clinton v. Jones (right to proceed in a civil case against the president of the United States), but do not present political questions in a legal sense. Political questions are those which are dedicated by the Constitution for a decision by another branch of government. The court has also decided political issues, but on a few occasions has declined to hear a case that presented a political question. The US Supreme Court prides itself on consistency and reliance on its earlier decisions. This same court a year ago ruled in Bush v. Gore.
Concerning the NAFTA case the Supreme Court should have taken the case to decide if the president and Congress had overstepped their constitutional bounds. We are taught in school that the three branches of government provide a system of checks and balances. Our system of checks and balances is not working. In the NAFTA case the president and the Congress clearly violated the Constitution by enacting a treaty in a manner not approved by the Constitution. Only the Supreme Court can tell the other branches that they have violated the Constitution. With the Supreme Court sitting on the sidelines, our checks and balances cannot work. The Supreme Court has done irreparable damage to the American Constitution and to the American people. Decisions like this cause people to be apathetic and say that the country is not a democracy, and that the system only protects the wealthy and corporations. More than 60% of the American people disapprove of NAFTA and have seen that Congress and the president do not represent them. More than 500,000 people lost their jobs because of NAFTA, joining the ranks of the disenchanted.
This is not the first time that the Supreme Court has ignored the interests of America's working people and those who want to make products in the United States. The Supreme Court broke the back of the American television industry with its 1986 Matsushita v. Zenith case. Zenith and other American television producers sued all Japanese television manufactures for conspiring to monopolize the US television market. The record shows that all Japanese television companies met together to set prices for the US and Japanese markets. Zenith won its case in the Court of Appeals. However, the Supreme Court stepped in for no apparent reason, and reversed the case, throwing out the lawsuit and handing Japan America's television industry. Fifteen years later no American television company manufacturers televisions in the United States. The last company to do so was RCA, the Radio Corporation of America. RCA moved to Mexico because of NAFTA.
Now the conspiracy is complete. The Supreme Court's refusal to hear the NAFTA case is the final nail in the coffin of US manufacturing. Automobile manufacturing is following television manufacturing down its death march to Japan, Mexico and Korea. This hollowing out of the American economy is decimating our middle class and increasing the gap between rich and poor.
Joel D. Joseph is chairman of the Made in the USA Foundation, a non-profit dedicated to promoting American products. Email is madeusafdn@mindspring.com.