Skip to comments.U.S. LUMBER INDUSTRY CHALLENGING THE CONSTITUTIONALITY OF NAFTA DISPUTE SETTLEMENT SYSTEM
Posted on 12/22/2005 8:09:53 AM PST by hedgetrimmer
WASHINGTON, DCSteve Swanson, Chairman of the Coalition for Fair Lumber Imports, announced today that the U.S. lumber industry is challenging the constitutionality of a dispute settlement system under the North American Free Trade Agreement, commonly referred to as Chapter 19. The Chapter 19 system allows bi-national panels of individuals to make binding decisions about application of U.S. law to U.S. unfair trade findings contrary to due process and other constitutional requirements.
The Constitution does not permit these panels to be the final arbiter of whether U.S. law provides for relief from unfair subsidies and dumping for U.S. producers and workers, said Swanson. The challenge is against the Chapter 19 dispute mechanism, not the NAFTA as a whole.
United States courts ordinarily decide appeals of findings that imports are subsidized or dumped. NAFTA Chapter 19 made findings regarding Canadian and Mexican imports appealable only to panels of individuals, some of whom are not U.S. citizens and none of whom is accountable within the U.S. government. Nothing like Chapter 19 has been included in other trade agreements, including DR-CAFTA.
When the Congress first considered Chapter 19 in 1988, the U.S. Justice Department warned that the Chapter 19 system would be unconstitutional. The U.S. government has repeatedly found that Canadian lumber imports are subsidized and dumped and threaten injury to the U.S. lumber industry. The World Trade Organization has approved these findings, and countervailing (anti-subsidy) and antidumping duties have been imposed on Canadian lumber imports since 2002. But a NAFTA dispute panel has exceeded its authority by directing the U.S. International Trade Commission to reverse a finding that unfair imports threaten the U.S. lumber industry. The U.S. government requested that one panelist be removed because of a conflict of interest, but he stayed on the panel.
As NAFTA panels threaten to subvert application of the trade laws to unfair lumber imports, we must enforce our constitutional right to due process and accountable decision-making, explained Swanson. If Canadian lumber subsidies and dumping are not fully addressed, the unfair imports will result in scores of sawmill closures, cause thousands of job losses, and undermine millions of family timberland owners. Swanson concluded, All that the U.S. industry has ever requested is an end to Canadian lumber subsidies and dumping through open and competitive timber and log markets. The U.S. industry vigorously supports the U.S. governments pursuit of free trade principles and a negotiated settlement based on reasonable Canadian commitments to timber policy reform. Until then, we will defend our rights to relief under U.S. law.
The Coalitions filing of this case comports with statutory requirements that it be initiated within 30 days of the end of a Chapter 19 proceeding.
We knew what "free trade" agreements like NAFTA/CAFTA would do to our soverignty --- here is just the beginning of what it is doing to it exactly....
...And you can thank El Jefe President Jorge for pushing hard for soveringty-busting "agreements" like this. Un-freakin' believable. Foreign governments controlling U.S. law...
What a tangled web multiple international trade treaties pose. In order to impose duties it must pass the muster of both WTO and NAFTA courts.
Isn't this contrary to what free-traders tell us? Any time we get dumped on it's okay but heaven forbid we should look out for America and Americans first.
EXPERTS CONSISTENTLY FIND NAFTA CHAPTER 19 UNCONSTITUTIONAL
Department of Justice
"If such decisions were binding, they clearly would involve the exercise of 'significant authority pursuant to the laws of the United States,' and, thus, would transform the members of the panels and committees into 'officers of the United States' who must be appointed in the manner prescribed by the appointments clause of the Constitution.... [P]anels and committees (and, of course, the determinations they issued) would, thus, be rendered unconstitutional."
Testimony of Assistant Attorney General John O. McGinnis, Hearings before the Senate Committee on Judiciary, 100th Cong., 2nd Sess, 79 (1988).
We firmly believe that language absolutely requiring the President to implement panel and committee decisions would be unconstitutional. . . . our testimony stresses that the Justice Department would oppose a provision that contained constitutionally deficient mandatory language,with the authorizing language we favor inserted as a fall-back in the event the mandatory formulation were held unconstitutional.
Letter from Thomas M. Boyd, Acting Assistant Attorney General, to Peter W. Rodino, Jr., Chairman, Committee of the Judiciary, House of Representatives, May 24, 1988.
A look at the constitutionality NAFTA:
[M]y proposition is that the United States-Canada dispute resolution provisions permit persons who are not officers of the United States, and who are not appointed under the Appointments Clause, to overrule federal officials who are officers of the United States on the grounds that the officials did not follow United States law . Not only does that scheme violate principles of representative government and democracy, but it also violates the Appointments Clause.
Alan Morrison, Public Citizen, Appointments Clause Problems in the Dispute Resolution Provisions of the United States-Canada FTA, 49 Wash. & Lee L. Rev. 1299-1300 (1992).
It's no wonder the nations to our north and south feel so comfortable telling our government to "tell your people to STFU and do as they're told".
Such a deal! A deal we should take a pass on.
You may be interested in this.
Ah yes, the infamous Dirty Byrd Amendment
If it is true that this circumvents our legal system, then I have no problems with it being declared unconstitutional.
However, if another country wants to give us tons of money under any guise and without obligation for our own use, I have no problems with it.
If Japan wanted to give every American a car for free, our government should have no capacity to stop it to protect union (or other) jobs.
But aren't home-buyers American? And aren't there more American home-buyers than Americans in the lumber industry? How does keeping out low-cost lumber constitute looking out for Americans first?
How do you believe we can get OUR country back, short of armed rebellion? And why are we acting like this began to occur in our lifetime? The internet?
This isn't about NAFTA, WTO, CAFTA, our borders, the murdering of unborn children, Johnny Has Two Daddys, Janey Has Two Mommy's, Socialism, Communism, government welfare, traitors like John Kerry, Ted Kennedy, John Murtha, Nancy Pelosi, etal., the United Nations, Muslims, the NEA, government largess, a corrupt and deviant, self serving Congress.
This is about every last one of the above and much more.
That dripping sound has become deafening.
The World Trade Organization has approved these findings, and countervailing (anti-subsidy) and antidumping duties have been imposed on Canadian lumber imports since 2002
America is no longer a soverign nation, thanks to George Bush. His policy of open borders, bring millions of Mexicans in this country for us to take care of plus these horrible treaties he and Bill Clinton and Rush Limbaugh supported are going to be the death of this country. But that is the way they want it. The death of the middle class and the birth of a slave nation for the Republicans.
These saps wanted it, now they got it...
Hey, I'm with you...I think we Americans should all ban together and refuse to buy anything made in America...American goods are far too expensive...
Now we will see whether there is any Constitutional honesty left in the Courts...
Apparently you missed the point. Lumber is such a small fraction of the cost of building a home that it is almost negligible.
Thanks for the ping. I was wondering how long this would take, seems we may find out how many Surpreme Court members
are CFR goons.
Dumping is one thing when it is the price of the good that is dumped. What about when it's the wage... nobody wants to talk about that forthrightly.
OMG LOL. You actually believe that? If I build a house, will you donate the lumber?
We have a Constitutional right to expensive lumber! To the barricades!
Nice to see you've re-discovered the folks at Public Citizen.
And yet the U.S. has ignored these binding decisions. I guess they don't have the force of U.S. law, do they?
Our representative government is protecting you from low cost Canadian lumber. You read about the tariffs, didn't you?
I just hope the U.N. doesn't tell us to drop these lumber tariffs.
The current softwood lumber dispute (Lumber IV) commenced in April of 2001. From May 22, 2002 to Dec 20, 2004 most Canadian softwood lumber exported to the US was subject to a combined countervailing and anti-dumping duty of 27%, collected by US Customs. From December 20, 2004 to December 12, 2005 the duties collected were 20%. On December 12, 2005, the duties collected at the border were reduced to 10.81%.
Government of British Columbia
Something smells unconstitutional. Not.
Reduce those tariffs you silly hosers.
Why, you afraid they might have authority that your representatives gave them? lol.
Isn't NAFTA an "agreement," rather than a treaty, which would have had to be ratified by the senate? I was under the impression that was the case.
If that is the case, then such an "agreement" isn't valid under the Constitution anyway, since there's no such thing mentioned in the Constitution. And it certainly can't superceed any US laws.
NAFTA was passed by a majority in the House and Senate.
And it certainly can't superceed any US laws.
You are correct, NAFTA does not have greater authority than the US Constitution. Neither does any treaty.
Do you happen to know how it passed in the senate? It doesn't matter if the house approved it or not. And for a treaty to be ratified, it has to pass a 2/3 vote in the senate.
The key is that once a treaty is ratified by a 2/3s vote in the senate, and the president signs it, it becomes "law," and the US government is obligated to obey it. While any law or treaty passed cannot superceed the Constitution, a treaty can superceed federal, state, and local laws.
Congressional-Executive Agreements (US law)
Agreements with a foreign power that have been approved by the US Congress. Unlike a treaty (in the US constitutional sense), it does not supersede existing law and does not require a two-thirds vote by the Senate. Instead, it is enacted as an ordinary law which requires majority votes by both the House and Senate followed by approval from the President. (In contrast, a sole executive agreement is ratified by the President alone.)
Not even treaties supercede existing law.
The Panama Canal Treaty included a number of protections for US citizens that Carter included to dupe America into ratifying it. Right after ratification the US government proceeded to renege on on its promises saying that treaties are just contracts between nations, and it's laws that govern people regardless of what treaties say. Panama Canal Employees took it all the way to the Supreme Court and lost.
And we even have "treaty enforcers". That is one of the duties of the US Coast Guard, as part of the department of Homeland Security.
In other words, the U.S. Constitution is not about what hedgetrimmer feels on any particular day.
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