Appointments with Disaster: The Unconstitutionality of Binational Arbitral Review Under the United States-Canada Free Trade Agreement

Abstract

The United States-Canada Free Trade Agreement (FTA) of 1989 guaranteed free trade between the United States and its largest trading partner. One aspect of the treaty provoked intense constitutional scrutiny in the United States. The FTA requires binding binational arbitral review of antidumping and countervailing duty orders issued by administrative agencies of each nation. This article argues that the FTA violates Article III and the Appointments Clause of the Constitution. The FTA offends the separation of powers. The FTA not only threatens the integrity of the federal judiciary but also undermines the strict procedures for appointing officers of the United States. The FTA violates Article III by deviating from the recognized methods for exerting federal adjudicatory power. The FTA's system for the appointment of arbitrators neither complies with the Appointments Clause nor satisfies an exception allowing the federal government to delegate its authority to persons who are not officers of the United States.

Keywords: United States-Canada Free Trade Agreement, FTA, Appointments Clause, trade, commerce

JEL Classification: K2, K33