Made in the USA Foundation v. United States , 242 F.3d 1300 ( 2001 )

  •    MADE IN THE USA FOUNDATION, United Steel Workers of America, Local 12L United Steel
    Workers, et al., Plaintiffs-Appellants,
                                UNITED STATES of America, Defendant-Appellee.
                                                     No. 99-13138.
                                            United States Court of Appeals,
                                                    Eleventh Circuit.
                                                     Feb. 27, 2001.
    Appeal from the United States District Court for the Northern District of Alabama. (No. 98-01794-CV-PT-
    M), Robert B. Propst, Judge.
    Before TJOFLAT, WILSON and B. FLETCHER*, Circuit Judges.
            BETTY B. FLETCHER, Circuit Judge:
            This case presents complex issues of first impression in this circuit in the realm of constitutional
    interpretation—namely, whether certain kinds of international commercial agreements are "treaties," as that
    term is employed in Article II, Section 2 of the United States Constitution; and if so, whether the Treaty
    Clause represents the sole means of enacting such agreements into law. The appellants, comprised of national
    and local labor organizations as well as a nonprofit group that promotes the purchase of American-made
    products, urge that the North American Free Trade Agreement (commonly referred to as "NAFTA") be
    declared unconstitutionally void, as it was never approved by a two-thirds supermajority of the United States
    Senate pursuant to the constitutionally-mandated procedures governing treaty ratification. The Government,
    on the other hand, invokes the political question doctrine and also claims that this court lacks jurisdiction due
    to the appellants' lack of standing. In addition, the Government argues on the merits that NAFTA's enactment
    did not require Senate ratification as a "treaty." The parties' respective arguments thus require us to engage
    constitutional issues of unusual breadth, complexity and import.
            In a remarkably learned and thorough opinion, the district court granted the Government's motion
    for summary judgment. Made in the USA Foundation v. United States, 
    56 F. Supp. 2d 1226
    The court found that Article III standing requirements had been met for most of the original appellants1 and
         Honorable Betty Binns Fletcher, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
        Included in the group of original appellants, in addition to the organizations mentioned, were a
    number of individuals whose standing to bring suit as voters was rejected by the district court. The
    appellants do not brief to us this aspect of the decision, relying on their belief that "the district court's
    that the case did not present a nonjusticiable political question, thus electing to reach the merits of the case.
    Ultimately, however, the court held that even assuming NAFTA constitutes a full-fledged "treaty," the Treaty
    Clause does not constitute the exclusive means of enacting international commercial agreements, given
    Congress's plenary powers to regulate foreign commerce under Art. I, § 8, and the President's inherent
    authority under Article II to manage our nation's foreign affairs. Accordingly, the district court held that
    NAFTA's passage in 1993 by simple majorities of both houses of Congress was constitutionally sound.
             We agree with the district court that the appellants have standing in this matter, and affirm the
    principle, as enunciated by the U.S. Supreme Court, that certain international agreements may well require
    Senate ratification as treaties through the constitutionally-mandated procedures of Art. II, § 2. See, e.g.,
    Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43, 
    21 L. Ed. 523
     (1872); Missouri v. Holland, 
    252 U.S. 416
    , 433,
    40 S. Ct. 382
    64 L. Ed. 641
     (1920). We nonetheless decline to reach the merits of this particular case, finding
    that with respect to international commercial agreements such as NAFTA, the question of just what
    constitutes a "treaty" requiring Senate ratification presents a nonjusticiable political question. Accordingly,
    we dismiss the appeal and remand with instructions to dismiss the action and vacate the decision of the district
    court. See Goldwater v. Carter, 
    444 U.S. 996
    , 1005, 
    100 S. Ct. 533
    62 L. Ed. 2d 428
     (1979); United States
    v. Munsingwear, Inc., 
    340 U.S. 36
    , 39-40, 
    71 S. Ct. 104
    95 L. Ed. 36
    I.       Introduction and Background
             The United States, Mexico and Canada entered negotiations in 1990 to create a "free trade zone" on
    the North American continent through the phased elimination or reduction of both tariff and non-tariff barriers
    to trade. Following extensive negotiations, the North American Free Trade Agreement was completed and
    signed by the leaders of the three countries on December 17, 1992. Through the passage of the NAFTA
    Implementation Act ("Implementation Act") on December 8, 1993,2 Congress approved NAFTA and provided
    for a series of domestic laws to effectuate and enforce NAFTA's provisions3
             Neither NAFTA nor the Implementation Act were subjected to the ratification procedures outlined
    holding that the organizational appellants have standing suffices to establish jurisdiction to proceed to the
    merits." Appellants' Opening Brief at 2 n.1. We therefore assume without deciding for purposes of this
    appeal that the claims of the individual appellants were properly dismissed by the district court.
        Pub.L. No. 103-182, 107 Stat. 2057 (1993), codified at 19 U.S.C. §§ 3301-3473. The
    Implementation Act was passed by a vote of 234 to 200 in the House, and 61 to 38 in the Senate. See 139
    Cong. Rec. H10,048 (daily ed. Nov. 17, 1993); 139 Cong. Rec. S16,712-13 (daily ed. Nov. 20, 1993).
         See 19 U.S.C. §§ 3311 et seq.
    in the Treaty Clause.4 Summoning primarily historical arguments, the appellants contend that this failure to
    go through the Art. II, § 2 procedures contravenes the original understanding of the Framers and therefore
    renders NAFTA and the Implementation Act unconstitutional. In support of their argument, the appellants
    marshal a considerable array of historical evidence. Relying heavily on the research of the late Arthur Bestor,
    a Professor of History at the University of Washington, the appellants claim that records from the
    Constitutional Convention evidence a careful and conscious decision on the part of the Framers to require
    a two-thirds Senate majority for approving treaties, with the deliberate intention of preventing national
    majorities from binding minority interests under the Supremacy Clause to international accords against their
    wishes.5 Furthermore, the appellants point to several early examples in our Nation's history (such as the Jay
    Treaty debate)6 when the United States entered into major commercial agreements with other countries, each
    of which was ratified as a treaty and approved by a two-thirds supermajority of the Senate.7
         Instead, President Clinton conducted the negotiations leading up to NAFTA under the so-called
    "fast-track" authority delegated to him by Congress in the Omnibus Trade and Competitiveness Act of
    1988, codified at 19 U.S.C. §§ 2902-03. Congress then approved NAFTA without amendment and
    passed implementing legislation pursuant to these same provisions, as well as those of the Trade Act of
    1974, codified at 19 U.S.C. §§ 2191-94.
         The Government contests this historical account, noting that not all commentators agree with
    Bestor's conclusions regarding the adoption of the Treaty Clause. Perhaps most prominently, Professors
    Myres McDougal and Asher Lans, two of the early advocates of the congressional-executive agreement
    as an alternative to the Treaty Clause, contend that "three salient facts emerge" from what we know of the
    Framers' discussions regarding the constitutional framework for the governance of foreign affairs: (1) the
    Framers paid relatively little attention to the matter; (2) as a general rule, "the delegates ... sought to
    remove the determination of foreign policy at least in the immediate future as far as possible from popular
    control"; and (3) the language used by the Framers "clearly permits utilization of other methods than that
    provided in the treaty clause for securing validation of international agreements ...." Myres S. McDougal
    and Asher Lans, II Treaties and Congressional-Executive or Presidential Agreements: Interchangeable
    Instruments of National Policy, 54 Yale L.J. 534, 536-37 (1945) (hereinafter "McDougal and Lans II").
          See 5 Annals of Cong. 760-62 (1796) (reprinting President Washington's message denying that the
    House had any role in deciding whether to implement treaties approved by the Senate and ratified by the
    President). Under James Madison's leadership, the House responded by adopting a resolution disclaiming
    "any agency in making Treaties," but also insisting that "when a Treaty stipulates regulations on any of
    the subjects submitted by the Constitution to the power of Congress, it must depend, for its execution, as
    to such stipulations, on a law or laws to be passed by Congress." Id. at 771-72. Implementing legislation
    for the Jay Treaty eventually passed in the House by a vote of 57 to 35. Id. at 782-83.
         See Bruce Ackerman and David Golove, Is NAFTA Constitutional?, 108 Harv. L.Rev. 799, 810-12
    (1995) (hereinafter "Ackerman and Golove"); David M. Golove, Treaty-Making and the Nation: The
    Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L.Rev. 1075, 1157-
    93 (2000).
            Based on the near-contemporaneous writings of Emmerich de Vattel,8 the appellants contend that the
    key distinction in the minds of the Framers in determining whether a given agreement required ratification
    as a treaty turned on the relative importance of the accord; significant agreements were to be deemed treaties,
    while less important ones were to be considered compacts or executive agreements.9 Thus, according to the
    appellants, an accord such as NAFTA, with its wide-ranging scope and impact—including the harmonization
    of financial, commercial, labor, and environmental laws and regulations and the establishment of
    supranational adjudicatory bodies to settle disputes between the signatories—surely falls into the class of
    agreements which require ratification as a treaty. The appellants' position can best be summarized as follows:
            Once it is recognized, as it must be, that the Treaty Clause requires a Senate supermajority for at least
            some agreements affecting commerce, [then] the outcome of this case is clear. NAFTA is an
            agreement of extraordinary scope and impact. It has profound ramifications not only for regional
            economic interests but for the ability of state and local governments, as well as the federal
            government, to enforce their laws and regulations. And it binds the three signatories to the economic
            equivalence of a military alliance. Whether wise or unwise, such steps cannot, under our
            Constitution, be taken without the concurrence of two-thirds of the Senate.
    Appellants' Opening Brief at 21. Congressional adoption of NAFTA in 1995 via simple majorities in both
    Houses, pursuant to the procedures reserved for ordinary legislation, contravened this important, built-in
         The Supreme Court discussed Vattel's influence in United States Steel Corp. v. Multistate Tax
    434 U.S. 452
    98 S. Ct. 799
    54 L. Ed. 2d 682
     (1978), with respect to the constitutional definitions
    of the terms "treaty," "alliance," "compact," and "agreement":
                     Some commentators have theorized that the Framers understood those terms in relation to
                     the precisely defined categories, fashionable in the contemporary literature of
                     international law, of accords between sovereigns.... The international jurist most widely
                     cited in the first 50 years after the Revolution was Emmerich de Vattel....
                              Vattel differentiated between "treaties," which were made either for perpetuity or
                     for a considerable period, and "agreements, conventions, and pactions," which "are
                     perfected in their execution once for all." E. Vattel, Law of Nations 192 (J. Chitty ed.
                     1883). Unlike a "treaty" or "alliance," an "agreement" or "paction" was perfected upon
                     execution: "[T]hose compacts, which are accomplished once for all, and not by
                     successive acts,—are no sooner executed then they are completed and perfected. If they
                     are valid, they have in their own nature a perpetual and irrevocable effect ...." Id. at 208.
                     This distinction between supposedly ongoing accords, such as military alliances, and
                     instantaneously executed, though perpetually effective agreements, such as boundary
                     settlements, may have informed the drafting in Art. I, § 10.
            434 U.S. at 462 n.12, 
    98 S. Ct. 799
    54 L. Ed. 2d 682
     (citations omitted).
          The Government disputes this characterization, arguing that the distinctions made by Vattel were
    based on whether or not the agreement was to have long-term effects, as well as the degree of permanence
    that the agreement carried with it. The Government also notes that some scholars analyzing Vattel's work
    have concluded that the author considered the terms "convention," "agreement," and "arrangement" to
    represent forms of the general category called "treaties." See, e.g., David M. Golove, Against Free-Form
    Formalism, 73 N.Y.U. L.Rev. 1791, 1910 n.361 (1998).
    constitutional protection for minority interests.
             Remarkably, although perhaps not altogether surprisingly, the United States Supreme Court has never
    in our nation's history seen fit to address the question of what exactly constitutes and distinguishes "treaties,"
    as that term is used in Art. II, § 2, from "alliances," "confederations," "compacts," or "agreements," as those
    terms are employed in Art. I, § 10.10 Accordingly, the Court has never decided what sorts of international
    agreements, if any, might require Senate ratification pursuant to the procedures outlined in Art. II, § 2. Indeed,
    as will be discussed below, the only extended pronouncement of the Court's Treaty Clause jurisprudence can
    be found in Goldwater v. Carter—a case in which the Court effectively refused to require President Carter
    to submit the abrogation of a mutual defense treaty with Taiwan for Senate ratification, but failed to garner
    a majority of the Court behind a single rationale.11 In light of the Constitution's silence on the meaning of
    the word "treaty," as well as the relative dearth of Supreme Court jurisprudence in this area, the question of
    NAFTA's constitutionality has generated significant debate amongst prominent legal scholars.12
          Significantly, the Supreme Court has acknowledged that a determination of what the Framers
    actually meant when they used the word "treaty" is difficult in light of the fact that "[w]hatever distinct
    meanings the Framers attributed to the terms [treaty, alliance, confederation, agreement and compact in
    the Constitution]", "those meanings were soon lost." United States Steel, 434 U.S. at 463, 
    98 S. Ct. 799
    54 L. Ed. 2d 682
    . See also Laurence H. Tribe, Taking Text and Structure Seriously; Reflections on Free-
    Form Method in Constitutional Interpretation, 108 Harv. L.Rev. 1221 (1995) (hereinafter "Tribe")
    ("What the Founders saw as the precise definitions of treaties, alliances, confederations, agreements, and
    compacts is largely lost to us now. Consequently, line-drawing in this area is especially complex.")
    (footnote omitted).
          We note in this regard that although the Cases-and-Controversies Clause of Art. III, § 2, states that
    "the judicial power shall extend to all cases ... arising under this Constitution, the laws of the United
    States, and treaties made, or which shall be made, under their authority ...," this passage does not speak to
    whether the court's jurisdiction extends to challenges to the treaty-making procedures employed by
    Congress and the President. Nor does this passage preclude the Government's argument that the
    appellants lack standing or that this case presents a nonjusticiable political question.
          See, e.g., Ackerman and Golove, supra; Tribe, supra. Prior to the debate over NAFTA, the
    constitutional status of congressional-executive agreements was already the subject of considerable
    commentary by a number of legal scholars. See, e.g., Louis Henkin, Foreign Affairs and the Constitution
    175-76 (1975) ("[T]he constitutionality of the Congressional-Executive agreement is established, [and] is
    used regularly at least for trade and postal agreements."); Harold Hongju Koh, Congressional Controls
    on Presidential Trade Policymaking After "I.N.S. v. Chadha", 18 N.Y.U. J. Int'l L. 1191, 1195 n.13
    (1986) ("Treaties and congressional-executive agreements are now generally treated as interchangeable
    instruments of U.S. foreign policy."); John H. Jackson, The General Agreement on Tariffs and Trade in
    United States Domestic Law, 66 Mich. L.Rev. 250, 253 (1967) ("It is generally settled that under our
    Constitution international 'treaty' obligations can be established ... [by] an executive agreement of the
    President, acting under authority delegated by an act of Congress ...."); McDougal and Lans I, at 187
    ("[P]ractice under the Constitution ... has confirmed beyond doubt ... that the treaty-making power is no
    barrier to Congressional authorization or sanction of agreements."). See also Restatement (Third) of the
    Foreign Relations Law of the United States § 303 note 8 (1986) ("Congressional-Executive agreements
    have in fact been made on a wide variety of subjects, and no such agreement has ever been effectively
              We begin, as we must, with the Government's challenges to this court's jurisdiction. Assuming that
    Article III requirements have been met, we would have jurisdiction over this appeal pursuant to 28 U.S.C.
    § 1291. We review a grant of summary judgment de novo. Real Estate Fin. v. Resolution Trust Corp., 
    950 F.2d 1540
    , 1543 (11th Cir.1992) (per curiam).
    II        Standing
              Article III's standing requirements are rooted in one of the hallmarks of our nation's system of
    governance: the constitutional separation of powers. "No principle is more fundamental to the judiciary's
    proper role in our system of government than the constitutional limitation of federal-court jurisdiction to
    actual cases or controversies." Raines v. Byrd, 
    521 U.S. 811
    , 818, 
    117 S. Ct. 2312
    , 2317, 
    138 L. Ed. 2d 849
    (1997) (quoting Simon v. Eastern Kentucky Welfare Rights Organization, 
    426 U.S. 26
    , 37, 
    96 S. Ct. 1917
    48 L. Ed. 2d 450
     (1976)). As the Court stated in Allen v. Wright, 
    468 U.S. 737
    , 750, 
    104 S. Ct. 3315
    82 L. Ed. 2d 556
     (1984), "the case or controversy requirement defines with respect to the Judicial Branch the idea of
    separation of powers on which the Federal Government is founded."
              In Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560-61, 
    112 S. Ct. 2130
    119 L. Ed. 2d 351
    the Court defined standing analysis as involving the assessment of three separate but interrelated criteria:
              First, the appellant must have suffered an "injury in fact"—an invasion of a legally protected interest
              which is (a) concrete and particularized, and (b) "actual or imminent, not conjectural" or
              "hypothetical." Second, there must be a causal connection between the injury and the conduct
              complained of—the injury has to be "fairly trace[able] to the challenged action of the defendant, and
              not ... th[e] result [of] the independent action of some third party not before the court." Third, it must
              be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable
    The district court found—and the government does not really contest—that the appellants' pleadings meet
    the injury-in-fact and causation requirements.13 Instead, the Government principally argues that the
    challenged as improperly concluded.").
                      Not all commentators have agreed with the Government's position. See Tribe, supra, at
              1221 (concluding that the judiciary has the authority to decide that the political branches have
              violated constitutionally-mandated procedures with respect to certain international agreements,
              and arguing that "the American people ... are ... entitled to the safeguards provided by the Senate
              supermajority requirement of the Treaty Clause"); Edwin Borchard, Shall the Executive
              Agreement Replace the Treaty?, 53 Yale L.J. 664 (1944); Edwin Borchard, Treaties and
              Executive Agreements—A Reply, 54 Yale L.J. 616 (1945) (offering a direct response to the
              arguments presented by McDougal and Lans).
          Significantly, the Government's challenge to the appellants' standing was raised at the pleading
    stage, in the context of a motion to dismiss. As the Court stated in Warth v. Seldin, 
    422 U.S. 490
    , 501, 
    95 S. Ct. 2197
    45 L. Ed. 2d 343
     (1975), "For purposes of ruling on a motion to dismiss for want of standing,
    both the trial and reviewing courts must accept as true all material allegations of the complaint, and must
    appellants' claims fail to demonstrate that their alleged injuries are redressable by this court. Stated otherwise,
    the Government contends that the relief sought by the appellants is so attenuated from the injuries they have
    alleged as to constitute mere speculation. Specifically, the appellants requested declaratory, mandatory and
    injunctive relief in the form of two orders from the district court: first, a declaration that NAFTA had not
    been approved in a constitutional manner and therefore is "null, void and of no effect"; and second, an order
    directing the President to notify the governments of Mexico and Canada that the United States would be
    terminating its participation in NAFTA within thirty days. According to the Government, even if granted,
    such relief would not be likely to redress the appellants' alleged injuries, because it rests upon the speculative
    assumption that Mexico or Canada would subsequently change their trade policies or that U.S. companies
    would be induced to return to (or remain in) the United States.
             However, the appellants have amassed considerable evidence, much of it from government sources,
    from which we may infer that U.S. reimposition of tariff and non-tariff barriers to trade is by itself likely to
    result in somewhat reduced competition from foreign imports, thereby generating more demand for domestic
    production—and therefore more jobs, higher wages, and increased bargaining power—in the industries
    represented by the appellant labor organizations.14 Furthermore, irrespective of the broader economic wisdom
    construe the complaint in favor of the complaining party." Given the appellants' plausible allegations that
    their injuries have been caused at least in part by changed trade and investment patterns generated by
    NAFTA, we therefore may not disturb the district court's holding "unless it appears beyond doubt that the
    appellant[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief."
    Conley v. Gibson, 
    355 U.S. 41
    , 45-46, 
    78 S. Ct. 99
    2 L. Ed. 2d 80
     (1957); see also Smith v. Meese, 
    821 F.2d 1484
    , 1495-96 (11th Cir.1987) (applying the Conley standard). To be sure, "an asserted right to
    have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on
    a federal court." Whitmore v. Arkansas, 
    495 U.S. 149
    , 160, 
    110 S. Ct. 1717
    109 L. Ed. 2d 135
    Nonetheless, for purposes of this appeal, we must presume that the appellants' general allegations of past
    and ongoing injury due to NAFTA's enactment—in the form, inter alia, of lost jobs, reduced wages and
    bargaining power, as well as diminished capacity to buy American-made products—satisfy the "relatively
    modest requirements that apply at this stage of the litigation." Bennett v. Spear, 
    520 U.S. 154
    , 171, 
    117 S. Ct. 1154
    137 L. Ed. 2d 281
          See, e.g., President Clinton, Study on the Operation and Effect of the North American Free Trade
    Agreement 19, 21-22 (1997) (providing a sectoral analysis of NAFTA's effects and acknowledging that
    while studies on the net employment effects of NAFTA are inconclusive, "[c]learly, some imports may
    have a job-displacement effect," and thousands of workers have applied for the NAFTA Transitional
    Adjustment Assistance program); Statement of Administrative Action, H.R. Doc. No. 103-159, Vol. I at
    969-70, 978 (1993) (recognizing that "as a result of the NAFTA, some workers may lose their jobs
    permanently"); United States Int'l Trade Comm'n, The Year in Trade: Operation of the Trade
    Agreements Program During 1998 at 33-34 (May 1999) (discussing the growth in the U.S. trade deficit as
    a result of NAFTA); United States Int'l Trade Comm'n, Investigation No. 332-381: The Impact of the
    North American Free Trade Agreement on the U.S. Economy and Industries: A Three-Year Review 7-8
    (July 1997) (stating that "7 industries showed employment effects that are adversely sensitive to lower
    prices for imports from Mexico," and noting specifically that NAFTA has probably led to reduced
    domestic production and manufacturing job losses in the apparel, textiles, and women's footwear
    of such measures, a return to the pre-NAFTA regime would likely result in the greater availability of
    U.S.-made products for purchase by U.S. consumers, at least in the markets benefiting from renewed trade
    protection.15 We therefore find that by virtue of NAFTA's effect on domestic law alone, relief in this case
    does not largely "depend on the unfettered choices made by independent actors not before the courts."
    ASARCO Inc. v. Kadish, 
    490 U.S. 605
    , 615, 
    109 S. Ct. 2037
    , 2044, 
    104 L. Ed. 2d 696
             The Government contends that three cases from the D.C. Circuit support its position: Talenti v.
    102 F.3d 573
     (D.C.Cir.1996),16 Dellums v. U.S. Nuclear Regulatory Comm'n, 
    863 F.2d 968
    (D.C.Cir.1988),17 and Greater Tampa Chamber of Commerce v. Goldschmidt, 
    627 F.2d 258
          See id.
           In Talenti, a naturalized American citizen of Italian descent whose property had allegedly been
    expropriated by the Italian government sought to compel the President, the Secretary of State, and the
    Acting Director of the International Cooperation Agency to withhold federal aid to Italy under the
    Hickenlooper Amendment to the Foreign Assistance Act. The D.C. Circuit denied the claim on the
    grounds that Talenti relied on a series of highly dubious contingencies, including the unlikely prospect
    that the President would decline to exercise his statutory authority to waive the withholding of aid to a
    NATO ally "in the national interest." Talenti, 102 F.3d at 577. It is clear that Talenti involved a
    sequence of events so remote as to defy common sense, not to mention legal requirements. By contrast,
    in this case, it is evident that even apart from any reactions on the part of the Mexican and Canadian
    governments, changes in domestic laws resulting from NAFTA's invalidation are substantially likely to
    ameliorate some, if not all, of the appellants' injuries.
           In Dellums, the D.C. Circuit rejected the claim of an unemployed uranium miner in New Mexico,
    who challenged the Nuclear Regulatory Commission's decision to grant a license to import uranium from
    South Africa. Recognizing that the miner's inability to find employment constituted injury in fact, the
    court nonetheless found that even if the Commission were to ban the importation of South African
    uranium into the United States and the appellant could show that such a ban would benefit the domestic
    uranium mining industry as a whole, such a showing would still fall short of demonstrating that he
    personally would benefit from this result. Dellums, 863 F.2d at 974. Accordingly, the court held that the
    appellant lacked standing. Here, by contrast, not only are individual members likely to benefit, but the
    institutional appellants are likely to benefit as organizations from the restoration of the pre-NAFTA trade
    and investment regime.
          In Goldschmidt, the appellants challenged the validity of an executive agreement regulating air
    travel between the United States and the United Kingdom, claiming that the agreement was invalid
    because it was a treaty that should have been submitted for Senate approval. The D.C. Circuit found that
    even if it did declare the agreement invalid, the appellants had failed to establish that (1) the Senate would
    not ratify the agreement anyway, or (2) the United Kingdom would react by changing its position to one
    more favorable to the appellants' interests, and that therefore the remedy was not substantially likely to
    redress the appellants' injuries. Significantly, the Goldschmidt appellants themselves acknowledged that
    the United Kingdom would probably not agree to any modification of the flight limits that had been
    agreed to in the executive agreement in question. Goldschmidt, 627 F.2d at 263. By contrast, relief for
    the appellants in this case does not depend on the actions of a single governmental actor. In some
    respects, then, the fact that myriad actors (both public and private) are likely to be affected by the
    withdrawal of the United States from NAFTA and to respond to the resulting changes in economic
    incentives militates strongly in favor of the conclusion that on balance, at least some of the injuries
    We find these cases, however, to be readily distinguishable. Unlike these cases, here there exists a clearly
    established record of pre- and post-NAFTA trade and investment activity on the part of the United States,
    Mexico and Canada, which also bears on their probable behavior in the event of a U.S. withdrawal from
    NAFTA.19 We therefore reject the Government's version of the likely Canadian and Mexican reaction to a
    U.S. withdrawal as being far more unfounded and speculative than the appellants' predictions. As the
    Supreme Court stated in Duke Power Co. v. Carolina Environmental Study Group, 
    438 U.S. 59
    , 78, 
    98 S. Ct. 2620
    57 L. Ed. 2d 595
     (1978), "Nothing in our prior cases requires a party seeking to invoke federal
    jurisdiction to negate ... speculative and hypothetical possibilities ... in order to demonstrate the likely
    effectiveness of judicial relief."
             Perhaps most importantly, implicit in the Government's argument is the core contention that this
    court lacks the requisite authority to order the President to notify Mexico and Canada of this nation's
    withdrawal from NAFTA.20 According to this view, the President, in signing NAFTA, caused the agreement
    to become binding on the United States under international law, and only he has the authority to abrogate
    such an international obligation.21 Hence, absent judicial authority to compel the President to withdraw from
    suffered by the organizations who brought suit in this case are likely to be redressed by the relief sought.
         See sources cited at n.14, supra. Indeed, it is precisely those parties involved in NAFTA's approval
    and implementation who have claimed that the significant changes in our nation's economic relations with
    Mexico and Canada would not have come about but for its passage.
           Although the Government does not raise this issue, we note that sovereign immunity does not act as
    a bar to our exercising jurisdiction over this case. To be sure, the statute most often cited as the source of
    the federal government's waiver of sovereign immunity in cases not involving money damages—the
    Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq.—cannot serve that purpose here, given
    that only the President may terminate our country's participation in NAFTA. As a majority of the Court
    found in Franklin v. Massachusetts, 
    505 U.S. 788
    112 S. Ct. 2767
    120 L. Ed. 2d 636
     (1992), the President
    is not an "agency" within the meaning of the APA, and his actions are therefore not subject to review
    under the statute. Id. at 800-01, 
    112 S. Ct. 2767
    . However, "the President's actions may still be reviewed
    for constitutionality," id. at 801 (citations omitted); furthermore, we note that the so-called Larson-
    Dugan exception permits suits to go forward alleging that a government's official's actions were
    unconstitutional or beyond statutory authority, on the grounds that such actions "are considered individual
    and not sovereign actions." Larson v. Domestic & Foreign Commerce Corp., 
    337 U.S. 682
    , 689, 
    69 S. Ct. 1457
    , 1461, 
    93 L. Ed. 1628
     (1949); see also Dugan v. Rank, 
    372 U.S. 609
    , 621-23, 
    83 S. Ct. 999
    , 1006-
    10 L. Ed. 2d 15
     (1963). Thus, like the district court, we are satisfied that the appellants are not barred
    by sovereign immunity from pursuing their claims. See also Swan v. Clinton, 
    100 F.3d 973
    , 981
          See Curtiss-Wright, 299 U.S. at 319, 
    57 S. Ct. 216
    81 L. Ed. 255
     ("[T]he President alone has the
    power to speak or listen as a representative of the Nation. He makes treaties with the advice and consent
    of the Senate; but he alone negotiates."); Restatement (Third) § 339(c) (stating that only the President
    has the authority and discretion to bind the United States under international law).
    NAFTA, it is unlikely that the appellants' injuries would be redressed by a favorable ruling from this court.
    We reject this argument for standing purposes, however, relying chiefly on the reasoning employed in the
    plurality portion of the Court's opinion in Franklin v. Massachusetts, 
    505 U.S. 788
    , 802-03, 
    112 S. Ct. 2767
    120 L. Ed. 2d 636
     (1992), and applied most recently by the D.C. Circuit in Swan v. Clinton, 
    100 F.3d 973
    , 976-
    77 (D.C.Cir.1996).
             Franklin involved a challenge to the methodology by which overseas federal employees were
    allocated to different states in the 1990 census, which in turn affected how seats in the House of
    Representatives would be reapportioned.22 The appellants in Franklin sued both the Secretary of Commerce
    and the President under the APA, seeking injunctive and declaratory relief for what they claimed was an
    "arbitrary and capricious" decision to allocate overseas military personnel to individual states based on the
    "home of record" designated in their personnel files. This policy change resulted in the loss of one House
    seat from the state of Massachusetts.
             A majority of the Franklin Court first held that the President is not an "agency" within the meaning
    of the APA, and that his actions are therefore not subject to judicial review under the APA's provisions. Id.
    at 800-01, 
    112 S. Ct. 2767
    . More importantly for our purposes, in a part of the Court's opinion joined only
    by four Justices, the Franklin Court addressed the "thorn[y] standing question [of] whether the injury is
    redressable by the relief sought." Id. at 802, 
    112 S. Ct. 2767
    . After noting the difficult separation-of-powers
    issues raised by any judicial order purporting to direct injunctive relief against the President himself, the
    Franklin plurality concluded that "[f]or purposes of establishing standing, however, we need not decide
    whether injunctive relief against the President was appropriate, because we conclude that the injury alleged
    is likely to be redressed by declaratory relief against the Secretary alone." Id. at 803, 
    112 S. Ct. 2767
    Moreover, "we may assume it is substantially likely that the President and other executive and congressional
    officials would abide by an authoritative interpretation of the census statute and constitutional provision by
    the District Court, even though they would not be directly bound by such a determination." Id.23
          Under the relevant statute, the Secretary of Commerce is required to perform the census and report
    the data to the president, who in turn is required within nine months to transmit a statement to Congress
    indicating the number of Representatives to which each state is entitled based on the census data.
          Citing Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501, 
    18 L. Ed. 437
     (1866), the Franklin
    plurality expressly noted that "[w]e have left open the question whether the President might be subject to
    a judicial injunction requiring the performance of a purely 'ministerial' duty." Franklin, 505 U.S. at 802,
    112 S. Ct. 2767
    120 L. Ed. 2d 636
    . However, in signing NAFTA, the President arguably created a binding
    international obligation, such that even if this court were to declare NAFTA unconstitutional for purposes
             Although a majority of the Court failed to sign on to this portion of the Franklin opinion, we note
    that the D.C. Circuit drew heavily from this approach in Swan. There, a former member of the Board of the
    National Credit Union Administration ("NCUA") sued President Clinton and other Executive Branch
    officials, seeking to have his removal from the NCUA Board declared unlawful. While noting that "[i]n most
    cases, any conflict between the desire to avoid confronting the elected head of a coequal branch of
    government and to ensure the rule of law can be successfully bypassed, because the injury at issue can be
    rectified by injunctive relief against subordinate officials," the Swan court remarked that this may "represent[
    ] one of those rare instances where ... only injunctive relief against the President himself will redress Swan's
    injury, because only the President has the power to remove or reinstate NCUA Board members." Id. at 976-
    78. The court nonetheless concluded that it could order NCUA staff members to treat Swan as a "de facto"
    Board member and that this partial remedy would be sufficient for redressability, in spite of the fact that "the
    President has the power, if he so chose, to undercut [this] relief." Id. at 980-81. In so holding, the court
    "recogniz[ed] that such partial relief is sufficient for standing purposes when determining whether we can
    order more complete relief would require us to delve into complicated and exceptionally difficult questions
    regarding the constitutional relationship between the judiciary and the executive branch." Id.
             We find this reasoning to be persuasive. To be sure, the line of cases cited in Swan, including
    Franklin and Mississippi v. Johnson, casts serious doubt as to whether courts have the power to direct or
    enjoin the President in the performance of his official duties.24 Nonetheless, the Government simply cannot
    deny the fact that there are numerous subordinate executive officials engaged in the continued operation and
    of domestic law, these international obligations would remain. See Restatement (Third) §§ 302-303;
    Vienna Convention on the Law of Treaties, arts. 26 and 46; Pigeon River Improvement, Slide and Boom
    Co. v. Charles W. Cox, Ltd., 
    291 U.S. 138
    , 160, 
    54 S. Ct. 361
    78 L. Ed. 695
     (1934) (acknowledging that
    although a subsequent act of Congress that conflicted with a provision in a treaty "would control in our
    courts as the later expression of our [domestic] law ... the international obligation [would] remain [ ]
    unaffected"). We therefore agree with the Government that a decision involving the nation's withdrawal
    from an international obligation clearly entails a large measure of discretion and therefore cannot be
    considered purely ministerial.
          We are well aware of the Franklin Court's declaration that a judicial "grant of injunctive relief
    against the President himself is extraordinary," 505 U.S. at 802, 
    112 S. Ct. 2767
    , and that "in general this
    court has no jurisdiction of a bill to enjoin the President in the performance of his official duties." Id. at
    112 S. Ct. 2767
     (quoting Mississippi v. Johnson, 71 U.S. at 501). Although only a plurality of four
    Justices joined this part of the Court's opinion, it is clear from Justice Scalia's concurrence that he would
    agree with this particular proposition. See Franklin, 505 U.S. at 829, 
    112 S. Ct. 2767
     (Scalia, J.,
    concurring) ("Unless the other branches are to be entirely subordinated to the Judiciary, we cannot direct
    the President to take a specified executive act or the Congress to perform particular legislative duties.").
    enforcement of NAFTA's provisions.25 Hence, we believe that even short of directly ordering the President
    to terminate our nation's participation in NAFTA, a judicial order instructing subordinate executive officials
    to cease their compliance with its provisions would suffice for standing purposes.
                In sum, we conclude that the appellants have sufficiently alleged injuries that are fairly traceable to
    NAFTA, and that there is a substantial likelihood that their injuries would be redressed by a favorable
    decision from this court. Despite being unable to predict with certainty what all of the ramifications of an
    order declaring NAFTA unconstitutional might be, we agree with the district court that while "[s]ome
    previously accrued injuries may not be redressable ... that is not to say that future injuries may not be
    avoided," and that this is enough to establish that "it is substantially likely that at least some of the
    institutional plaintiffs' alleged injuries will be redressed." 56 F.Supp.2d at 1253-54.26
    III.        Political Question
                We now turn to the Government's second jurisdictional argument. According to the Government,
    because the text of the Constitution fails to define what is meant by a "treaty" or to dictate the proper
    procedure for approving international commercial agreements, and because the Constitution has clearly
    granted the political branches an enormous amount of authority in the areas of foreign affairs and commerce,
    the choice of what procedure to use for a given agreement is committed to the discretion and expertise of the
    Legislative and Executive Branches by virtue of the political question doctrine. We substantially agree with
    the Government's contentions that this case does not present the type of question that can be properly
          As the district court noted, the appellants' complaint failed to identify subordinate officials who
    could be enjoined, as well as specific provisions of the Implementation Act or regulations that such
    officials should cease to implement in order to redress their injuries. However, the lack of specificity in
    the appellants' request for relief does not preclude a finding of redressability. The Supreme Court has
    held that a court has power under the All Writs Act, 28 U.S.C. § 1651(a), to issue commands that apply to
    "persons who, though not parties to the original action or engaged in wrongdoing, are in a position to
    frustrate the implementation of a court order or the proper administration of justice." United States v.
    New York Tel. Co., 
    434 U.S. 159
    , 172-74, 
    98 S. Ct. 364
    54 L. Ed. 2d 376
     (1977); see also Swan, 100 F.3d
    at 979-80.
          The Government also contends that the appellants' claims are not redressable because even if they
    did obtain a judgment declaring NAFTA itself to be unconstitutional, such a ruling would have no effect
    on the validity of the Implementation Act, which was passed by Congress as ordinary legislation. We
    reject this artful distinction as a red herring. As the district court noted, "It is obvious that the Agreement
    and the Implementation Act were designed to be and intended to be applied in tandem." 56 F.Supp.2d at
    1253. Were this court to declare NAFTA unconstitutional, its self-executing provisions would be
    invalidated. Furthermore, a number of the Implementation Act's provisions would, by their own terms, be
    rendered inoperative—including its threshold provision, which would cause the remainder of the
    implementing legislation to become void under basic principles of severability. See 19 U.S.C. §§ 3311,
    3331; Scheinberg v. Smith, 
    659 F.2d 476
    , 480-81 (5th Cir.1981).
    addressed by the judiciary, given our belief that Supreme Court precedent and historical practice27 confirm
    the wisdom of maintaining the practice of judicial nonintervention into such matters. Drawing heavily from
    (then Associate) Justice Rehnquist's plurality opinion in Goldwater v. Carter, 
    444 U.S. 996
    100 S. Ct. 533
    62 L. Ed. 2d 428
     (1979)—as noted earlier, the only extended exposition of the Supreme Court's Treaty Clause
    jurisprudence—we conclude that this case presents a nonjusticiable political question.
             The political question doctrine emerges out of Article III's case or controversy requirement and has
    its roots in separation of powers concerns. Baker v. Carr, 
    369 U.S. 186
    , 210, 
    82 S. Ct. 691
    7 L. Ed. 2d 663
    (1962). In Baker, the Supreme Court enumerated six criteria that courts should consider in determining
    whether a case is nonjusticiable:
             Prominent on the surface of any case held to involve a political question is found (1) a textually
             demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a
             lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of
             deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4)
             the impossibility of a court's undertaking independent resolution without expressing lack of the
             respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence
             to a political decision already made; or (6) the potentiality of embarrassment from multifarious
             pronouncements by various departments on one question.
    369 U.S. at 217, 
    82 S. Ct. 691
    7 L. Ed. 2d 663
    . Significantly, any one of the above-listed characteristics may
    be sufficient to preclude judicial review. Id.
             In Goldwater, Justice Powell's concurrence suggested that the Baker analysis could be condensed into
    a three-question inquiry:
             (i) Does the issue involve resolution of questions committed by the text of the Constitution to a
             coordinate branch of government?
             (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise?
             (iii) Do prudential considerations counsel against judicial intervention?
    444 U.S. at 998, 100 S.Ct. at 533. Inasmuch as it incorporates the Baker criteria without abridging them, we
          Although the appellants argue that historical practice is irrelevant to political question analysis, we
    believe that history may inform the inquiry inasmuch as it fleshes out the manner in which the executive
    and legislative branches have sought to exercise and accommodate their textually committed foreign
    affairs powers over time. Furthermore, historical practice may illuminate any prudential considerations
    governing the advisability or inadvisability of judicial intervention in a given controversy. See Ackerman
    and Golove, supra, at 925 ("From Bretton Woods to the WTO, many of America's key commitments have
    taken the form of congressional-executive agreements.") Hence, we are mindful of Justice Frankfurter's
    wise concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 
    343 U.S. 579
    72 S. Ct. 863
    96 L. Ed. 1153
    (1952): "Deeply imbedded traditional ways of conducting government cannot supplant the Constitution
    or legislation, but they give meaning to the words of text or supply them. It is an inadmissibly narrow
    conception of American constitutional law to confine it to words of the Constitution and to disregard the
    gloss which life has written upon them." Youngstown, 343 U.S. at 610-11, 
    72 S. Ct. 863
    96 L. Ed. 1153
    (Frankfurter, J., concurring).
    find Justice Powell's analytical framework to be useful and proceed to apply each of these inquiries to the
    present case.
    A.      Constitutional Textual Commitment to Coordinate Branches
            The term "treaties" appears four times in the text of the Constitution. The Treaty Clause, U.S. Const.
    Art. II, § 2, cl. 2, states that the President "shall have Power, by and with the Advice and Consent of the
    Senate, to make Treaties, provided two-thirds of the Senators present concur." The Compacts Clause, U.S.
    Const. Art. I, § 10, cl. 3, delineates the power of the states to deal with foreign powers, completely
    prohibiting the states from making "treaties" with foreign nations, but permitting states to enter into
    "agreements or compacts" with foreign powers with the consent of Congress. The Cases-and-Controversies
    Clause, U.S. Const. Art. III, § 2, states, in pertinent part, that "the judicial power shall extend to all cases,
    in law and equity, arising under this Constitution, the laws of the United States, and treaties made ...." And
    finally, the Supremacy Clause, U.S. Const. Art. Art. VI, cl. 2, states that "[t]his Constitution, and the laws
    of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made,
    under the authority of the United States, shall be the supreme law of the land." However, as noted earlier,
    the text of the Constitution does not (1) define the term "treaties"; (2) delineate the difference between
    treaties and other types of international agreements; (3) mandate that treaties are the exclusive means by
    which the federal government may make agreements with foreign powers; or (4) state that the Treaty Clause
    procedure is the only manner in which a treaty may be enacted. See also Holmes v. Jennison, 39 U.S. (14
    Pet.) 540, 569, 
    10 L. Ed. 579
     (1840) (acknowledging that the Treaty Clause is worded in "general terms,
    without any description of the objects intended to be embraced by it").
            The Constitution confers a vast amount of power upon the political branches of the federal
    government in the area of foreign policy—particularly foreign commerce. The breadth of the President's
    inherent powers in foreign affairs arises from his role as Chief Executive, U.S. Const. Art. II, § 1, cl. 1, and
    as Commander in Chief, U.S. Const. Art. III, § 2, cl. 1. In addition to his power to "make Treaties" with the
    advice and consent of two-thirds of the Senators present, the President's authority in foreign affairs is further
    bolstered by his power to "appoint Ambassadors ... and Consuls," U.S. Const. Art. II, § 2, cl. 2, and "to
    receive Ambassadors and other public Ministers," U.S. Const. Art. II, § 3. Meanwhile, Congress's
    enumerated powers in the realm of external affairs include its power "to declare war," U.S. Const., Art. I, §
    8, cl. 11; "to raise and support armies," U.S. Const., Art. I, § 8, cl. 12; "to provide and maintain a navy," U.S.
    Const., Art. I, § 8, cl. 13; and the Senate's advice-and-consent role in the treaty-making process. Most
    significantly, the Constitution also confers on the entire Congress (and not just the Senate) authority "to
    regulate commerce with foreign nations," U.S. Const. Art. I, § 8, cl. 3—an express textual commitment that
    is directly relevant to international commercial agreements such as NAFTA.28
             The Supreme Court has repeatedly recognized that the President is the nation's "guiding organ in the
    conduct of our foreign affairs," in whom the Constitution vests "vast powers in relation to the outside world."
    Ludecke v. Watkins, 
    335 U.S. 160
    , 173, 
    68 S. Ct. 1429
    92 L. Ed. 1881
     (1948); see also Department of Navy
    v. Egan, 
    484 U.S. 518
    , 529, 
    108 S. Ct. 818
    98 L. Ed. 2d 918
     (1988) ("recogniz[ing] 'the generally accepted
    view that foreign policy [i]s the province and responsibility of the Executive' " (citation omitted)). With
    respect to NAFTA, it is especially important to note that the Supreme Court has long since recognized the
    power of the political branches to conclude international "agreements that do not constitute treaties in the
    constitutional sense." Curtiss-Wright, 299 U.S. at 318, 
    57 S. Ct. 216
    81 L. Ed. 255
             These cases interpreting the broad textual grants of authority to the President and Congress in the
    areas of foreign affairs leave only a narrowly circumscribed role for the Judiciary. As the Supreme Court
    stated in Oetjen v. Central Leather Co., 
    246 U.S. 297
    , 302, 
    38 S. Ct. 309
    62 L. Ed. 726
     (1918), "The conduct
    of the foreign relations of our government is committed by the Constitution to the executive and
    legislative—'the political'—departments of the government, and the propriety of what may be done in the
    exercise of this political power is not subject to judicial inquiry or decision." See also Crosby v. Nat'l Foreign
    Trade Council, 
    530 U.S. 363
    120 S. Ct. 2288
    , 2301, 
    147 L. Ed. 2d 352
     (2000) (acknowledging that "the
    'nuances' of 'the foreign policy of the United States ... are much more the province of the Executive Branch
    and Congress than of this Court' ") (quoting Container Corp. of America v. Franchise Tax Bd., 
    463 U.S. 159
    103 S. Ct. 2933
    77 L. Ed. 2d 545
     (1983)). Within this circuit, we have declared that "[m]atters relating
    'to the conduct of foreign relations ... are so exclusively entrusted to the political branches of government as
    to be largely immune from judicial inquiry or interference.' " Aktepe v. United States, 
    105 F.3d 1400
    , 1403
    (11th Cir.1997) (quoting Haig v. Agee, 
    453 U.S. 280
    , 292, 
    101 S. Ct. 2766
    69 L. Ed. 2d 640
             To be sure, the Baker Court deemed it "error to suppose that every case or controversy which touches
         Other relevant enumerations of power include Congress's authority to levy and collect taxes, duties,
    imposts and excises, U.S. Const. Art. I, § 8, cl. 1.
         See also Antolok v. United States, 
    873 F.2d 369
     (D.C.Cir.1989) ("nowhere does the Constitution
    contemplate the participation by the third, non-political branch, that is the Judiciary, in any fashion in the
    making of international agreements").
    foreign relations lies beyond judicial cognizance." Baker, 369 U.S. at 211, 
    82 S. Ct. 691
    7 L. Ed. 2d 663
    Furthermore, the Court has recognized that "foreign commitments" cannot relieve the government of the
    obligation to "operate within the bounds laid down by the Constitution," and that "the prohibitions of the
    Constitution ... cannot be nullified by the Executive or by the Executive and Senate combined." Reid v.
    354 U.S. 1
    , 14, 17, 
    77 S. Ct. 1222
    1 L. Ed. 2d 1148
     (1957). We therefore have little doubt that courts
    have the authority—indeed, the duty—to invalidate international agreements which violate the express terms
    of the Constitution. Nonetheless, with respect to commercial agreements, we find that the Constitution's clear
    assignment of authority to the political branches of the Government over our nation's foreign affairs and
    commerce counsels against an intrusive role for this court in overseeing the actions of the President and
    Congress in this matter.
              The appellants concede, as they must, that the Constitution affords the political branches substantial
    authority over foreign affairs and commerce. The appellants also concede that the Supreme Court has
    recognized the constitutional validity of the longstanding practice of enacting international agreements which
    do not amount to full-fledged treaties.30 See Curtiss-Wright, 299 U.S. at 318, 
    57 S. Ct. 216
    81 L. Ed. 255
    see also Ackerman and Golove, supra, at 858; Tribe, supra, at 1269 ("The authority to make international
    agreements that do not rise to the level of treaties has long been recognized as [an] inherent executive power
    [of the President]."). Nonetheless, the appellants argue that what is at issue here is not the authority of a
    branch of government over a certain subject matter, but whether that branch "has chosen a constitutionally
    permissible means of implementing that power." I.N.S. v. Chadha, 
    462 U.S. 919
    , 940-41, 
    103 S. Ct. 2764
    77 L. Ed. 2d 317
     (1983). This contention leads us to the second Goldwater/Baker inquiry: whether the
    resolution of this issue would require this court to move beyond recognized areas of judicial expertise.
    B.        Judicial Expertise
              Under Baker, the second criterion by which we evaluate the justiciability of this case is whether or
    not there exist judicially manageable standards for determining when a given international commercial
    agreement must be approved pursuant to the Art. II, § 2 procedures. Baker, 369 U.S. at 217, 
    82 S. Ct. 691
    7 L. Ed. 2d 663
    . The Government contends that such a decision would require this court to consider areas
    beyond its judicial expertise. We agree.
          Significantly, the Court has also noted that "Congress has not been consistent in distinguishing
    between Art. II treaties and other forms of international agreements." Weinberger v. Rossi, 
    456 U.S. 25
    102 S. Ct. 1510
    71 L. Ed. 2d 715
             As noted earlier, in Goldwater v. Carter, members of Congress challenged the President's unilateral
    termination of a mutual defense treaty with Taiwan (formerly known as the Republic of China). As in the
    present case, the crux of the challenge centered on the allegedly unconstitutional procedures used to abrogate
    the treaty, and not on the treaty's substantive provisions. A plurality of the Court determined that the case
    was nonjusticiable because the text of the Constitution failed to provide any guidance on the issue; joined
    by three other members of the Court, Justice Rehnquist noted that "while the Constitution is express as to the
    manner in which the Senate shall participate in the ratification of a treaty, it is silent as to the body's
    participation in the abrogation of a treaty." Id. at 1003, 
    100 S. Ct. 533
    .31 Justice Rehnquist thus concluded
    that "in light of the absence of any constitutional provision governing the termination of a treaty, and the fact
    that different termination procedures may be appropriate for different treaties ... the instant case ... must surely
    be controlled by political standards" rather than by judicial standards. Id. (internal quotations omitted).
             While the nature of the issue presented in Goldwater differs somewhat from the present case, we
    nonetheless find the disposition in Goldwater instructive, if not controlling, for our purposes, in that the
    Supreme Court declined to act because the constitutional provision at issue does not provide an identifiable
    textual limit on the authority granted by the Constitution.32 Indeed, just as the Treaty Clause fails to outline
    the Senate's role in the abrogation of treaties, we find that the Treaty Clause also fails to outline the
    circumstances, if any, under which its procedures must be adhered to when approving international
    commercial agreements.
             Significantly, the appellants themselves fail to offer, either in their briefs or at argument, a workable
    definition of what constitutes a "treaty." Indeed, the appellants decline to supply any analytical framework
    whatsoever by which courts can distinguish international agreements which require Senate ratification from
    those that do not. Rather, the appellants offer up the nebulous argument that "major and significant"
    agreements require Art. II, § 2 ratification, without defining how courts should go about making such
          Justices Powell and Brennan expressly disagreed with the conclusion that the case involved a
    nonjusticiable political question. Goldwater, 444 U.S. at 998, 
    100 S. Ct. 533
    . Justices Blackmun and
    White would have set the case for oral argument and plenary consideration, deeming it "indefensible,
    without further study, to pass on the issue of justiciability or on the issues of standing or ripeness."
    Goldwater, 444 U.S. at 1006, 
    100 S. Ct. 533
    . The ninth justice, Justice Marshall, simply concurred in the
    result of the case, leaving no indication as to his position on the political question issue.
         See also Nixon v. United States, 
    506 U.S. 224
    113 S. Ct. 732
    122 L. Ed. 2d 1
     (1993) (holding that
    because the Constitution does not place any limits on the Legislative Branch's discretion in dictating the
    procedures surrounding impeachment proceedings, a former federal judge's claim that the rules and
    procedures used by the Senate in trying impeachments were improper was not justiciable).
    distinctions.33 According to the appellants, it is neither possible nor necessary to define the meaning of a
    "treaty" to decide this case, so long as we find that if any commercial agreement qualifies as a treaty requiring
    Senate ratification, NAFTA surely does. We disagree, given that under Baker and Goldwater, the
    ascertainment of judicially manageable standards is essential before we may rule that this court even has
    jurisdiction to reach the merits of the case.
             The appellants contend that this case does not push the court into areas beyond the limits of judicial
    expertise, inasmuch as it does not involve a ruling on the policy merits of NAFTA, but only a determination
    as to the constitutionality of the procedures employed in its enactment. Accordingly, the appellants cite the
    Supreme Court's decisions in United States v. Munoz-Flores, 
    495 U.S. 385
    , 395-96, 
    110 S. Ct. 1964
    109 L. Ed. 2d 384
     (1990), Morrison v. Olson, 
    487 U.S. 654
    , 671, 
    108 S. Ct. 2597
    101 L. Ed. 2d 569
     (1988), Chadha,
    462 U.S. at 942, 
    103 S. Ct. 2764
    77 L. Ed. 2d 317
    , and Powell, 395 U.S. at 548-49, 
    89 S. Ct. 1944
    23 L. Ed. 2d 491
    , in support of the contention that there exists no lack of judicially manageable standards where the
    underlying determination to be made is legal in nature (i.e., concerning the interpretation of a legal text such
    as the Constitution, even in the absence of clearly defined textual terms). Thus, in the appellants' view, the
    lack of a constitutionally-provided definition for the term "treaty" does not deprive this court of judicially
    manageable standards by which to rule on the merits of this case.
             It is true that the Supreme Court has rejected arguments of nonjusticiability with respect to other
    ambiguous constitutional provisions. In Munoz-Flores, the Court was confronted with the question of
    whether a criminal statute requiring courts to impose a monetary "special assessment" on persons convicted
    of federal misdemeanors was a "bill for raising revenue" according to the Origination Clause of the
    Constitution, Art. I, § 7, cl. 1, in spite of the lack of guidance on exactly what types of legislation amount to
           Alternatively, the appellants argued in the district court that treaties should be distinguished from
    congressional-executive agreements based on the concept of "sovereignty." Put another way, accords
    which "significantly" impinge upon national, state and local sovereignty, as NAFTA purportedly does
    through the establishment, inter alia, of supranational adjudicatory bodies, must be considered to be
    treaties requiring Senate ratification. See Tribe, supra, at 1267 ("Whatever the details, the impact of an
    agreement on state or national sovereignty must ultimately determine whether the agreement constitutes a
    treaty ...."). However, we again find such a distinction unhelpful, inasmuch as it requires courts to delve
    into areas not normally reserved for judicial expertise. Indeed, in an increasingly interdependent global
    economy, simple bilateral tariff arrangements, which have historically been approved either as ordinary
    legislation or delegated to the President's discretion, see, e.g., Field v. Clark, 
    143 U.S. 649
    12 S. Ct. 495
    36 L. Ed. 294
     (1892), and are clearly committed by the Constitution to Congress as one of its enumerated
    powers, U.S. Const. Art. I, § 8, may be said to significantly impinge on national sovereignty. Cf. Tribe,
    supra, at 1266 (conceding that "line-drawing in this area is especially complex," but arguing that "the
    difficulty in drawing such a line does not mean that the distinction can be discarded").
    bills "for raising revenue." The Court, in electing to decide the issue on the merits, rejected the contention
    that in the absence of clear guidance in the text of the Constitution, such a determination should be considered
    a political question.
             To be sure, the courts must develop standards for making [such] determinations, but the Government
             suggests no reason that developing such standards will be more difficult in this context than in any
             other. Surely a judicial system capable of determining when punishment is "cruel and unusual,"
             when bail is "[e]xcessive," when searches are "unreasonable," and when congressional action is
             "necessary and proper" for executing an enumerated power is capable of making the more prosaic
             judgments demanded by adjudication of Origination Clause challenges.
    495 U.S. at 395-96, 
    110 S. Ct. 1964
    109 L. Ed. 2d 384
             Similarly, in Morrison v. Olson, despite the fact that "[t]he line between 'inferior' and 'principal'
    officers [as used in Art. II, § 2, cl. 2 of the Constitution] is one that is far from clear, and the Framers provided
    little guidance as to where it should be drawn," the Supreme Court found itself capable of defining the
    boundaries of such terms and, consequently, of interpreting the effect of the provision. Morrison, 487 U.S.
    at 671, 
    108 S. Ct. 2597
    . See also Freytag v. Commissioner of Internal Revenue, 
    501 U.S. 868
    , 880-82, 
    111 S. Ct. 2631
    115 L. Ed. 2d 764
     (1991) (holding that a special trial judge in the United States Tax Court is an
    "inferior officer" whose appointment must conform to the Appointments Clause); Buckley v. Valeo, 
    424 U.S. 1
    , 126, 
    96 S. Ct. 612
    46 L. Ed. 2d 659
     (1976) ("Any appointee exercising significant authority pursuant to the
    laws of the United States is an 'Officer of the United States,' and must, therefore, be appointed in the manner
    prescribed by § 2, cl. 2, of [Article II].").
             Finally, in Chadha, the Court found justiciable a claim calling for it to interpret the language of the
    Presentment Clause, which failed to specify exactly which actions required the concurrence of both houses
    of Congress. Chadha, 462 U.S. at 981, 
    103 S. Ct. 2764
    77 L. Ed. 2d 317
    . The Court held that the section of
    the Immigration and Nationality Act authorizing a one-House veto power over executive department
    decisions made pursuant to the Act was unconstitutional. According to the Court, such an action was
    essentially legislative in nature and should, therefore, be subject to the constitutional requirements of
    bicameral passage by majority vote and presentment to the President. Thus, although the Court recognized
    Congress's plenary power to legislate in the area of immigration, it held that such power was still subject to
    limitations included in the text of the Constitution and to judicial review. See also Clinton v. City of New
    524 U.S. 417
    118 S. Ct. 2091
    141 L. Ed. 2d 393
     (1998) (striking the Line Item Veto Act as
    unconstitutional for violating the Presentment Clause).
             We note that none of these cases, however, took place directly in the context of our nation's foreign
    policy, and in none of them was the constitutional authority of the President and Congress to manage our
    external political and economic relations implicated. In addition to the Constitution's textual commitment
    of such matters to the political branches, we believe, as discussed further below, that in the area of foreign
    relations, prudential considerations militate even more strongly in favor of judicial noninterference.
    Furthermore, we believe that in requesting, as the appellants do, that this court adjudicate the "significance"
    of an international commercial agreement as the critical determinant of whether or not it constitutes a treaty
    requiring Senate ratification, we would be unavoidably thrust into making policy judgments of the sort
    unsuited for the judicial branch.
    C.      Prudential Considerations
            Finally, under the Goldwater/Baker criteria, we find that a number of prudential factors are relevant
    to the resolution of this case, including: (1) the necessity of federal uniformity; (2) the potential effect of an
    adverse judicial decision on the nation's economy and foreign relations; and (3) the respect courts should pay
    to coordinate branches of the federal government. See Goldwater, 444 U.S. at 998, 
    100 S. Ct. 533
    62 L. Ed. 2d 428
     (Powell, J., concurring); Baker, 369 U.S. at 217, 
    82 S. Ct. 691
    7 L. Ed. 2d 663
            As the Supreme Court stated in Coleman v. Miller, 
    307 U.S. 433
    , 454-55, 
    59 S. Ct. 972
    83 L. Ed. 1385
     (1930), "In determining whether a question falls within [the political question] category, the
    appropriateness under our system of government of attributing finality to the action of the political
    departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations."
    In Baker, the Court recognized the special importance of our nation speaking with one voice in the field of
    foreign affairs. Baker, 369 U.S. at 211, 
    82 S. Ct. 691
    7 L. Ed. 2d 663
    . The Court has further observed that
    "federal uniformity is essential" in the area of foreign commerce, Japan Line, Ltd. v. County of Los Angeles,
    441 U.S. 434
    , 448, 
    99 S. Ct. 1813
    60 L. Ed. 2d 336
     (1979), and that "the Federal Government must speak with
    one voice when regulating commercial relations with foreign governments." Michelin Tire Corp. v.
    423 U.S. 276
    , 285, 
    96 S. Ct. 535
    46 L. Ed. 2d 495
            A judicial declaration invalidating NAFTA at this stage would clearly risk "the potentiality of
    embarrassment from multifarious pronouncements by various departments on one question." Baker, 369 U.S.
    at 217, 
    82 S. Ct. 691
    7 L. Ed. 2d 663
    . Although the appellants argue that these considerations are irrelevant
    to an assessment of the constitutionality of the treaty-making procedures, we believe in this case that a
    challenge to the procedures used to enact NAFTA is inextricably bound to its substantive provisions,
    inasmuch as a judicial declaration invalidating NAFTA would be aimed at forcing the withdrawal of U.S.
    participation in the agreement, with serious repurcussions for our nation's external relations with Mexico and
              A judicial order contradicting the actions of the President and Congress could also have a profoundly
    negative effect on this nation's economy and its ability to deal with other foreign powers. Significantly,
    granting the appellants' requested relief in this case would not only affect the validity of NAFTA, but would
    potentially undermine every other major international commercial agreement made over the past half-century.
    See Ackerman and Golove, supra, at 925 n. 519 (questioning, in light of the ongoing dispute between the
    Senate and the President over the meaning of Article 46 of the as-yet-unratified Vienna Convention of the
    Law of Treaties, that "[i]f the [Supreme] Court were to strike down the modern constitutional practice, what
    would be the status of all the unconstitutional agreements that have been negotiated over the last
    half-century?"). In reporting to Congress on the effects of NAFTA in 1997, the President stated that
    "[c]ooperation between the Administration and the Congress on a bipartisan basis has been critical in our
    efforts to reduce the deficit, to conclude trade agreements that level the global playing field for America, to
    secure peace and prosperity along America's borders, and to help prepare all Americans to benefit from
    expanded economic opportunities." President Clinton, Study on the Operation and Effect of the North
    American Free Trade Agreement, (1997). Furthermore, myriad individual decisions and governmental
    measures which have been carried out in reliance on NAFTA; since it took effect on January 1, 1994, the
    governments, private businesses and citizens of the United States, Mexico and Canada have conducted their
    affairs in reliance on the lowered tariffs and reduced trade and investment restrictions enshrined in the new
    regime. While perhaps not individually arising to the level of "an unusual need for unquestioning adherence
    to a political decision already made," Baker, 369 U.S. at 217, 
    82 S. Ct. 691
    7 L. Ed. 2d 663
    , such
    considerations further militate in favor of judicial restraint, given that a decision declaring NAFTA
    unconstitutional would be likely to have a destabilizing effect on governmental relations and economic
    activity across the North American continent.
              Finally, a review by this court of the process by which the President and Congress enter into
    international agreements would run the risk of intruding upon the respect due coordinate branches of
    government. As Justice Powell concluded in his concurrence in Goldwater, "Prudential considerations
    persuade me that a dispute between Congress and the President is not ready for judicial review unless and
    until each branch has taken action asserting its constitutional authority." Goldwater, 444 U.S. at 996, 
    100 S. Ct. 533
    62 L. Ed. 2d 428
     (Powell, J., concurring). Similarly, Justice Rehnquist's concurrence admonished
    that "[t]he Judicial Branch should not decide issues affecting the allocation of power between the President
    and Congress until the political branches reach an impasse." Id. at 1005 n. 1, 
    100 S. Ct. 533
    62 L. Ed. 2d 428
    Since no such impasse has been reached with respect to NAFTA, we believe this requires greater deference
    on the part of the Judiciary to the decisions of coordinate branches of government.34 In this regard, we note
    that no member of the Senate itself has asserted that body's sole prerogative to ratify NAFTA (or, for that
    matter, other international commercial agreements) by a two-thirds supermajority. In light of the Senate's
    apparent acquiescence in the procedures used to approve NAFTA, we believe this further counsels against
    judicial intervention in the present case.
    IV        Conclusion
              We therefore conclude that this case presents a nonjusticiable political question, thereby depriving
    the court of Article III jurisdiction in this matter. Our conclusion is supported by the Tenth Circuit's holding
    in Dole v. Carter, 
    569 F.2d 1109
     (10th Cir.1977), in which the court invoked the political question doctrine
    in refusing to decide whether an agreement by the President to return the Hungarian crown jewels to that
    country constituted a treaty requiring Senate ratification. Dole, 569 F.2d at 1110. In so holding, the court
    found that there was "no way for [the court to] ascertain[ ] the interest of the United States ... in the
    controversy." Id. The Dole court thus "decline[d] to enter into any controversy relating to distinctions which
    may be drawn between executive agreements and treaties." Given the Tenth Circuit's express recognition of
    the inherent difficulty surrounding the distinction between executive agreements and treaties and its refusal
    to rule on the issue, the Dole decision is directly analogous to the outcome in this case.
              In dismissing this case as a political question, we do not mean to suggest that the terms of the Treaty
    Clause effectively allow the political branches to exercise unfettered discretion in determining whether to
    subject a particular international agreement to the rigors of that Clause's procedural requirements; to state
    as much would be tantamount to rendering the terms of Art. II, § 2, cl. 2 a dead letter. Indeed, as the Court
    stated in Missouri v. Holland, 
    252 U.S. 416
    , 433, 
    40 S. Ct. 382
    64 L. Ed. 641
     (1920), "[i]t is obvious that there
    may be matters of the sharpest exigency for the national well being that an act of Congress could not deal
         Given that three other Justices joined Justice Rehnquist's concurring opinion, it is arguable that
    when added to Justice Powell's ripeness rationale, a majority of the Goldwater Court agreed with the
    proposition that the case was nonjusticiable absent an impasse between the political branches.
    with but that a treaty followed by such an act could." See also Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43,
    21 L. Ed. 523
     (1872) ("Express power is given to the President, by and with the advice and consent of the
    Senate, to make treaties, provided two-thirds of the senators present concur, and inasmuch as the power is
    given, in general terms, without any description of the objects intended to be embraced within its scope, it
    must be assumed that the framers of the Constitution intended that it should extend to all those objects which
    in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not
    inconsistent with the nature of our government and the relation between the States and the United States.");
    Weinberger v. Rossi, 
    456 U.S. 25
    , 30 n. 7, 
    102 S. Ct. 1510
    71 L. Ed. 2d 715
     (1982) ("Submission of Art. II
    treaties to the Senate for ratification is ... required by the Constitution."). We only conclude that in the
    context of international commercial agreements such as NAFTA—given the added factor of Congress's
    constitutionally-enumerated power to regulate commerce with foreign nations, as well as the lack of judicially
    manageable standards to determine when an agreement is significant enough to qualify as a "treaty"—the
    issue of what kinds of agreements require Senate ratification pursuant to the Art. II, § 2 procedures presents
    a nonjusticiable political question.
            Accordingly, we DISMISS the appeal and REMAND with instructions to dismiss the action and
    vacate the decision of the district court. See Goldwater, 444 U.S. at 1005, 
    100 S. Ct. 533
    62 L. Ed. 2d 428
    United States v. Munsingwear, Inc., 
    340 U.S. 36
    71 S. Ct. 104
    95 L. Ed. 36