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

  •                                                                                   [PUBLISH]
                                FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                                                                            ELEVENTH CIRCUIT
                                                                                 FEB 27 2001
                                                                             THOMAS K. KAHN
                                         No. 99-13138
                              D. C. Docket No. 98-01794-CV-PT-M
                          Appeal from the United States District Court
                             for the Northern District of Alabama
                                     (February 27, 2001)
    Before TJOFLAT, WILSON and FLETCHER*, Circuit Judges.
    *Honorable Betty Binns Fletcher, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
    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
     (N.D. Ala. 1999). The court found that Article
    III standing requirements had been met for most of the original appellants1 and 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,
              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 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.
    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
            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).
    domestic laws to effectuate and enforce NAFTA's provisions.3
           Neither NAFTA nor the Implementation Act were subjected to the
    ratification procedures outlined 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
               See 19 U.S.C. §§ 3311 et seq.
             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
    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
           Based on the near-contemporaneous writings of Emmerich de Vattel,8 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).
             The Supreme Court discussed Vattel’s influence in United States Steel Corp. v.
    Multistate Tax Comm’n, 
    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. . . .
    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:
          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
     (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).
       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 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
              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
    . 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).
    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
               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 . . .
           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,
    ."); 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 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).
    138 L. Ed. 2d 849
     (1997) (quoting Simon v. Eastern Kentucky Welfare Rights
    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
     (1992), 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 decision.'
    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,
              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 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
    the Government principally argues that the 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
    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
    (1990). 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 (1997).
    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.15
    Furthermore, irrespective of the broader economic wisdom 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.16 We therefore find that by virtue of
               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
                See id.
    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. Clinton, 
    102 F.3d 573
     (D.C. Cir. 1996),17 Dellums v. U.S.
    Nuclear Regulatory Comm'n, 
    863 F.2d 968
     (D.C. Cir. 1988),18 and Greater Tampa
              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
    Chamber of Commerce v. Goldschmidt, 
    627 F.2d 258
     (D.C. Cir. 1980).19 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.20 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 19
               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 suffered by the organizations who brought suit in this case are likely to be
    redressed by the relief sought.
              See sources cited at n.15, 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
    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.21 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.22 Hence, absent judicial authority to
              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. 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 Comm. 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
    , 1006-08, 
    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 (D.C. Cir. 1996).
              See Curtiss-Wright, 299 U.S. at 319, 
    57 S. Ct. 216
     (“[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).
    compel the President to withdraw from 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.
    505 U.S. 788
    , 802-03, 
    112 S. Ct. 2767
    120 L. Ed. 2d 636
    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.23 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
           A majority of the Franklin Court first held that the President is not an
             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.
    “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. 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. 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. 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.24
              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
    . 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 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. 18
           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
    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.
    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.25 Nonetheless, the Government simply cannot deny the fact
    that there are numerous subordinate executive officials engaged in the continued
    operation and enforcement of NAFTA's provisions.26 Hence, we believe that even
               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, 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 803 (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
    (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.”).
              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.
    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 1253-54.27
    III.   Political Question
              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).
           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 addressed by the judiciary, given our belief that
    Supreme Court precedent and historical practice28 confirm the wisdom of
    maintaining the practice of judicial nonintervention into such matters. Drawing
               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
    “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
     (Frankfurter, J., concurring).
    heavily from (then Associate) Justice Rehnquist’s plurality opinion in Goldwater v.
    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
    . 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 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.29
           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.
    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."
              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.
    Curtiss-Wright, 299 U.S. at 318, 
    57 S. Ct. 216
          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
    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,
    __ U.S. __, 
    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
    , 196, 
    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 foreign relations lies beyond judicial cognizance."
    Baker, 369 U.S. at 211, 
    82 S. Ct. 691
    . 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. Covert, 
    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
              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").
    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.31 See Curtiss-Wright, 299 U.S. at 318, 
    57 S. Ct. 216
    ; 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
    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
              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
    , 30, 
    102 S. Ct. 1510
    71 L. Ed. 2d 715
    pursuant to the Art. II, § 2 procedures. Baker, 369 U.S. at 217, 
    82 S. Ct. 691
    . The
    Government contends that such a decision would require this court to consider
    areas beyond its judicial expertise. We agree.
           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
              Justices Powell and Brennan expressly disagreed with the conclusion that the case
    involved a nonjusticiable political question. Goldwater, 444 U.S. at 998. 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. 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.
    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
              See also Nixon v. United States, 
    506 U.S. 224
    113 S. Ct. 732
    122 L. Ed. 2d 1
    (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).
    “major and significant” agreements require Art. II, § 2 ratification, without
    defining how courts should go about making such 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
              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”).
    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-
    110 S. Ct. 1964
    109 L. Ed. 2d 384
     (1990), Morrison v. Olson, 
    487 U.S. 654
    108 S. Ct. 2597
    101 L. Ed. 2d 569
     (1988), Chadha, 462 U.S. at 942, 
    103 S. Ct. 2764
    , and Powell, 395 U.S. at 548-49, 
    89 S. Ct. 1944
    , 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 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
           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. See also Freytag v. Commissioner of
    Internal Revenue, 
    501 U.S. 868
    , 880-82, 
    111 S. Ct. 2631
    115 L. Ed. 2d 764
    (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
    . 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 York, 
    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.
    B.    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
     (Powell, J., concurring); Baker, 369 U.S. at 217, 
    82 S. Ct. 691
          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
    82 S. Ct. 691
    . The Court has further observed that "federal uniformity is
    essential" in the area of foreign commerce, Japan Line, Ltd. v. County of Los
    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. Commissioner, 
    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
    . 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
    , 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
          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
     (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
    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
               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.
    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 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
    ; United States v. Munsingwear, Inc., 
    340 U.S. 36
    71 S. Ct. 104
    95 L. Ed. 36