NAFTA Remains Constitutional – At Least For Now

by Julian Ku

The D.C. Circuit Court of Appeals has dismissed the lawsuit challenging the constitutionality of NAFTA Chapter 19 Panels on jurisdictional grounds. As we discussed earlier on this blog, the Coalition for Fair Lumber, a U.S. lumber trade group, had challenged NAFTA’s system using “binational panels” to replace U.S. federal courts in the review of U.S. government anti-dumping and countervailing duty determinations as a violation of Article III of the U.S. Constitution.

The D.C. Circuit’s decision dismissed the case for lack of jurisdiction on the very sensible grounds that there are no longer any antidumping or countervailing duties in place that can either by challenged in the binational panels or imposed by the U.S. government. The duties are gone as a result of an agreement between the U.S. and Canadian governments to finally settle the longstanding nightmarish softwood lumber dispute. This seems fairly unassailable, but the constitutional issue is still out there for future litigants. Just not these litigants.

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