NAFTA Watch: Big Lumber Challenges Constitutionality of Chp. 19 Panels

I hadn’t noticed until today this recent lawsuit by the Coalition for Fair Lumber Imports, a U.S. lumber industry lobbying group, challenging the constitutionality of one part of the North American Free Trade Agreement’s Chapter 19 dispute resolution system. The complaint challenges a system of binational panels, appointed by the NAFTA secretariat and comprised of U.S., Canadian, and Mexican citizens, that holds the power to reverse judgments of the U.S. International Trade Commission and Department of Commerce. According to the complaint, these panels violate Articles I, II, III and the Due Process Clause of the U.S. Constitution.

There is a lot more to say about this lawsuit, but I have to run to catch a plane so let me be brief. The problem of the NAFTA Chapter 19 panels has long been kicked around by scholars and government lawyers (see here for an interesting summary of previous critiques), but no one seems to have gotten very upset about it until now. Interestingly, the complaint makes an argument that was used to challenge the ICJ’s decisions in Medellin — that an international tribunal’s judgments cannot have direct self-executing effect in U.S. law because the decision to decide whether and how to implement such a judgment is held by the political branches.

Of course, in the case of the NAFTA tribunals, the duty to follow the international tribunals is contained in legislation passed by both the House and Senate where as in Medellin, the duty is contained in a treaty. This might matter, but then again it might not.