Supreme Court of the United States
Case №s 17–07, 17–08, 101 M.S. Ct 103
The Chief Justice delivered the opinion of the Court, in which AdmiralJones42, RestrepoMU, MoralLesson, JJ, joined. WaywardWit joins except as to part III.
BSDDC, J, concurs in the judgment only, in which Notevenalongname and WaywardWit, JJ., join.[*]
On July 19, 2017 the President of the United States issued an order proclaiming that the United States would be terminating its participation in the North American Free Trade Agreement (“NAFTA”) at the end of six months. President Bigg-boss, Memorandum: Decision to Leave the North American Trade Agreement (NAFTA) (July 19, 2017).
The question presented by the parties is whether the President had the authority to do so. The Government maintains that 19 U.S.C. § 2135(b) gives the President unilateral authority to withdraw from NAFTA. Petitioners disagree.
The Court does not reach that question, however, because it is not necessary to resolve this dispute. Instead, we resolve the question on narrow grounds, as federal courts must. The President cites subsection (b) as his authority to withdraw from NAFTA, but if this is true, the administration did not comply with the requirements of subsection (b), specifically that a hearing must be held before any action is taken. See 19 U.S.C. § 2135(f). Because no hearing was held, the President failed to satisfy the requirements of his cited authority. Therefore, his action is held void entirely.
Respondent maintains that the Petitioners lack standing, and further, that this dispute is a political question. Both arguments must fail. First, standing requires the Petitioners to have a concrete harm. Importantly, the R.P.P.S. have relaxed such standing requirements when it comes to constitutional challenges. R.P.P.S. 1(b). Moreover, Petitioner Horizon Lines has shown it may suffer a direct pecuniary injury regardless. The alleged harm is more than sufficient under our standing doctrine. See Allen v. Wright, 468 U.S. 737 (1984).
Second, Respondent argues that this case is not ripe for resolution. We disagree. Ripeness is a prudential doctrine of this Court, that counsels the federal courts to wait until a dispute exists. Here, the controversy has been crystallized sufficiently to permit review.
Third, Respondent argues that this case is a non-justiciable political question. That argument is incorrect. In Goldwater v. Carter, 444 U.S. 996 (1979), a plurality of this Court declined to opine on the termination of a treaty. That question is not before us. To understand why this case is not a political question and does not implicate Goldwater, we must understand what this case is about. The President cited 19 U.S.C. § 2135(b) for the power to withdraw from NAFTA, and as such he had the burden of meeting the requirements of subsection (b). The question before the Court is therefore: did the President meet the requirements for termination under subsection (b)? If he did so, we can then inquire into whether such action was correct, but as we will explain, there is no need to proceed to the second step.
The question before the Court is simply whether the President complied with the legal requirements for his cited authority. That is a question of law, and it is the job of this Court to say what the law is. Marbury v. Madison, 5 U.S. 137, 177 (1803). Therefore, no political question exists precluding our review.
Our holding today does not reach the grand and unnecessary questions raised by the Petitioners or Respondent. Instead, we must determine whether the President complied with the statutory authority he cited to justify withdrawing from NAFTA.
19 U.S.C. § 2135(f) requires the President to hold a hearing on the effects of termination or withdrawal before action can be taken under 19 U.S.C. § 2135(b). After searching the records of this case, we can find that no such hearing took place. It is on the Government to demonstrate that the President’s action was in compliance with his purported authority. The Government failed to do so.
The hearing requirement is not some technical requirement, it forces the Government to consider all sides of a decision before action is taken. That is not to suggest, of course, that technical requirements need not be followed. Instead, we emphasize the importance of consultation and hearing under the trade authorization granted to the President.
If the Executive takes action and cites a specific statute for his authority to do so, he must take steps to ensure compliance with the statutory scheme at hand. There is no need to address whether the statute was the correct statute to cite, or to address any constitutional arguments.
The concurrence ignores the fact that the President failed to comply with his own cited authority, and proceeds to answer questions that are unnecessary for the resolution of this dispute. Before the federal courts’ duty to declare the law is their duty to resolve the cases before them. That is why our earliest practices have emphasized that this Court will not issue advisory opinions. 3 Correspondence and Public Papers of John Jay 486–89 (Johnston ed. 1891).
Moreover, federal courts should pursue narrow lines of decision to avoid disrupting the law unnecessarily. See In Re: Pub.L. B.074 (The Police Reform Act of 2015), 100 M.S.Ct. 112 (2016). Regardless, the concurrence charges ahead with reckless abandon and charges us with pursuing too narrow of a decision. It is the role of the federal judiciary to pursue narrow decisions, so we are safe in the conviction that we are staying faithful to our constitutional practice.
Just for illustration, the concurrence declares the following: (1) NAFTA is a trade agreement; (2) 19 U.S.C. § 2135 (a) applies, not subsection (b); (3) the President exceeded his power under the statute; (4) the President lacked authority under the Constitution; and (5) that the rule of law prevents such power from being vested in the Executive. All of those decisions are entirely unnecessary to the resolution of this case and are therefore beyond the scope of this decision.
The resolution of this case is simple: if the President purported to withdraw from NAFTA under a specific statutory authority, he must faithfully execute that statute. Because he failed to do so, there is no reason to consider any further questions raised by this case. The President declared he withdrew from NAFTA under 19 U.S.C. § 2135(b), which requires a hearing to be held before action is taken. No hearing was held. We therefore hold the President’s action void.
It is so ordered.
BSDDC, J., concurring in the judgment, joined by Notevenalongname, WaywardWit, JJ.
Make no mistake about the true result of today’s decision: the President did not have the authority to exit the North American Free Trade Agreement. On that point we all agree, and there should be no confusion that what the President did was held void by every Justice of this Court.
Our opinions diverge only because we reach this conclusion for different reasons. While I see no error in the Court’s construction of 19 U.S.C. § 2135 (f), I am not convinced that it resolves the controversy because that subsection does not apply to NAFTA. At all.
The Court pursues a narrow decision, and in my view misapplies subsection (f). Further, the parties never even mentioned that argument, yet it is the crux of the Court’s decision today. That decision misses the real question presented by these cases, and I cannot sign onto it.
Instead, I am of the opinion that the President lacked the authority to terminate NAFTA under the law of the United States, and I would hold his action void for that reason.
I. Standing, Ripeness, and Justiciability
Respondent has argued several times that the Petitioners have not sustained any injuries in fact, because the United States has not yet left NAFTA. Therefore, the Government continues, they have not meet the requirements to demonstrate standing. This argument is completely incorrect, mistakes ripeness for standing, and ignores the Court’s precedent entirely. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing for the proposition that injury in fact relates to whether the injury is hypothetical, not whether the injury has yet to be sustained).
Standing is not about timing, but instead whether a dispute is concrete. Standing makes sure the plaintiff has a stake in the litigation. In contrast, ripeness doctrine relates to whether the litigation is timely. That is the governing doctrine for Respondent’s claim. Not once did Respondent cite a case for the proposition that this case is not ripe, but several of our precedents lead me to the opposite conclusion. Abbott Laboratories v. Gardner, 387, U.S. 136 (1967); Pennsylvania v. West Virginia 262 U.S. 553 (1923). If we were to delay our review until NAFTA is officially terminated, the potential costs to the Petitioners would be dramatic. Thus, under Abbott Labs, this case is ripe for review.
Further, Respondent maintains that this action is barred because it is a political question, citing Goldwater for support. That case commanded no majority reasoning, and it cannot bind us today. See Goldwater v. Carter, 444 U.S. 996 (1979). Respondent argues that Goldwater
established that the President has unique authority in international matters such as these . . ., we assert that [leaving NAFTA]falls within the President’s executive authority acting as the chief figure for initiating and withdrawing from such agreements.
Resp’t Reply Br. This argument misrepresents Goldwater entirely. Goldwater, in fact, established nothing. It is true that a plurality found the question there was essentially political (keeping in mind that the plurality merely concurred in the judgment as I do today). Regardless, Goldwater established no rule for the purposes of stare decisis in relation to this Court. See Thurmon, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419, 422 n.17 (1992). While the courts below should try their best to apply our plurality decisions, see Marks v. United States, 430 U.S. 188 (1977), the hierarchical structure of the judiciary necessitates that rule. No such structure binds us, nor does stare decisis mean that we can never review our prior decisions.
Amicus also cites President Bush’s termination of the Anti-ballistic Missile Treaty for further precedent. Unfortunately, they provided no case for that proposition. After searching, I could find no precedent from this court either. It appears that no controversy reached this Court, and so the practice cannot guide any decision of ours. Regardless, this Court is always thankful for the input of amici.
Overall, the political question doctrine does not preclude our review of this case after applying the Baker v. Carr factors. Baker v. Carr, 369 U.S. 186 (1962). The Congressional power over interstate commerce is absolute, subject only to the requirements of bicameralism and presentment, or through the required passage of a treaty. U.S. Const. Art. I, § 8, cl. 3. In contrast, the dispute at issue in Goldwater was the termination of a mutual defense treaty, where the President, as commander in chief, has a degree of influence. See Const. Art. I, § 8, Art. II. As such, the interplay between the two branches was based on politics, not law, according to the Court. Regardless, that decision had no majority.
Here, there is no exclusive textual assignment of the power at issue in the Constitution. Judicially manageable standards exist, based on statutory construction and the principles of bicameralism and presentment. We do not need to make a policy decision, nor would our decision disrespect a coordinate branch by aggrandizing the judiciary. No embarrassment would result from applying the law, and there is no unusual need to follow a political decision already made. Keeping in mind that it is the role of the judiciary to saw what the law is, that is all I need to do to resolve this case.
A paradigmatic political question would be the standards required for ejecting a member of Congress. Nixon v. United States, 506 US 224 (1993). Those standards are decided solely by the applicable chamber. In contrast, the power to terminate NAFTA is not dedicated to another branch. Finally, I am of the opinion that the Goldwater Plurality was incorrect. I cannot understand how that Court could claim it lacked the power to review whether a treaty termination was constitutional and yet in the same year review other constitutional cases. Deciding whether the constitutional process of government has been followed is our job, we should not shy away from those hard questions. I am in agreement with Justice Brennan, who wrote in dissent,
“The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts.”
Goldwater, supra (Brennan J., dissenting).
From this analysis, I am of the opinion that the preliminary issues raised by Respondent do not preclude our review of the underlying dispute.
II. Construction of the President’s Order
Before I can answer whether the President’s action was permissible, I must first understand what the action was in fact. Looking at the Memorandum, the order states:
I therefore invoke my authority as President of the United States to declare to the nations of Canada and Mexico that the United States formally withdraws from NAFTA, effective within six months of the submission of this memorandum. As per Article 2205, the Agreement will remain in effect for the two remaining parties.
President Bigg_Boss, Memorandum: Decision to Leave the North American Trade Agreement (NAFTA) (July 19, 2017). The subject matter at issue is NAFTA, which is a trade agreement adopted pursuant to, among other statutes, the 1974 Trade Act (codified at 19 U.S.C. ch. 12). From the plain meaning of the text of the order, it is clear what the President had wanted to accomplish: the withdrawal “from NAFTA” with a “six month” effective date.
The order’s operative language clearly indicates that the President’s action was to leave NAFTA. He was not “signaling” or demonstrating his intent. Affording this language any other meaning is absurd, and this Court should always do its best to avoid absurd results when interpreting language. See In re. Public Law 98 (High Frequency Trading Regulation Act), 100 M.S. Ct. 119 (2016).
Therefore, the proper construction of the order is that the President has left NAFTA, effective within six months. But what is NAFTA?
Respondent maintains that NAFTA is a “tri-lateral trade agreement,” and further continues that the NAFTA adoption was merely the statutory method of enacting NAFTA in the United States. To start, it is clear that NAFTA, as adopted in the United States, is not a treaty, as it was approved through the fast track procedure as the Respondent acknowledges. Therefore, the agreement is properly characterized as a trade agreement under 19 U.S.C. § 2111(a)(1).
It does not matter how many parties are members to the agreement. What matters is how the agreement was adopted in the United States. Here, that adoption was not through the treaty making process, but instead as a so called “Congressional-executive Agreement.” Thus, the statutory scheme that gave birth to the agreement is what guides our decision today.
Respondent challenges the adoption process, saying the treaty making process was not followed. It should be noted, however, that NAFTA has been in place for over two decades; the time to challenge its formation is long passed.
I focus on what the President did in fact, as opposed to what he cited to justify his action as the Court does. The nature of the action here is leaving a trade agreement. Such action is exempt from the hearing requirement of 19 U.S.C. § 2135(f). And yet, that provision is the linchpin of the Court’s decision.
In fact, the parties never briefed or even cited to subsection (f). Perhaps a hearing was held, yet never introduced into evidence because, and I cannot stress this enough, the hearing requirement was not mentioned once during this litigation. Litigation is driven by the parties, and today the Court decides the case on a theory never raised, briefed, or addressed by the litigants.
In addition to deciding this case sua sponte it also decides it incorrectly in my estimation. I understand entirely that the President cited 19 U.S.C. § 2135(b), for the proposition that he may terminate NAFTA. Clearly, however, that section applies only to proclamations (along with other procedures not relevant in this litigation). But NAFTA is a trade agreement, not a proclamation. Therefore, subsection (a), not (b) applies to the termination of the treaty.
If subsection (b) does not apply, then the hearing requirement under subsection (f) is inapplicable. Yet the Court applies it nonetheless.
This leads me to the inescapable conclusion that the Court’s decision is incorrect. It applies subsection (f), even though it could never have applied to the situation before this Court. While the Court’s decision is fairly described as “narrow” I fear that in the pursuit of a narrow decision the Court constrains itself too far (and in an untenable position no less!). The decision today tells us that the President must follow the formalities of the statute he cites as a basis for executive action.
Respectfully, that is not the question before the Court.
I feel no need to bend over backwards in an effort to avoid the real question presented, which is whether the President had the authority to withdraw from NAFTA. The short answer is no.
III. Legal Standards and Requirements under the Trade Act
Because NAFTA was adopted pursuant to a statutory scheme, I need not address any constitutional issues raised by this case; the statutes are dispositive. The statutory scheme at issue is extensive, but the relevant provisions warrant discussion.
The Trade Act of 1974 described “trade agreements” as the actual agreement between the U.S. and other nations. 19 U.S.C. § 2111(a)(1). Those agreements are effective subject to Congressional approval. 19 U.S.C. § 2112. Only once the implementation bill is adopted by Congress is any trade agreement given legal or operative effect. 19 U.S.C. § 2191; see INS v. Chadha, 462 U.S. 919 (1983)(holding that for an action that is “essentially legislative in purpose and effect,” such as the relevant trade agreements, to be valid, it must be subject to bicameralism and presentment).
“Proclamations,” on the other hand, are used by the President to implement trade agreements, and are temporary in nature. 19 U.S.C. §§ 2111(a)(2), 2132. Proclamations can also make adjustments to the tariff schedule to address trade imbalances, but are, again, temporary. 19 U.S.C. § 2132.
The purpose of the Trade Acts has consistently been in favor of free trade, and free trade agreements such as NAFTA. The President was directed to harmonize, reduce, or eliminate barriers to trade. 19 U.S.C. § 2111.
Finally, 19 U.S.C. § 2135(a) relates to the termination and withdrawal of the United States from trade agreements. It provides:
Every trade agreement entered into under this chapter shall be subject to termination, in whole or in part, or withdrawal, upon due notice, at the end of a period specified in the agreement. Such period shall be not more than 3 years from the date on which the agreement becomes effective. If the agreement is not terminated or withdrawn from at the end of the period so specified, it shall be subject to termination or withdrawal thereafter upon not more than 6 months’ notice.
19 U.S.C. § 2135(a). This provision does not plainly state how such a trade agreement would be terminated. Because the plain meaning does not reasonably provide a answer, I must construe the meaning of the statute using additional canons of construction.
First, I must look at the different phrasing used within the statutory scheme. Subsection (b), as discussed above grants the President the unilateral power to terminate a proclamation. 19 U.S.C. § 2135(b). No such language is employed in subsection (a). 19 U.S.C. § 2135(a). The lack of the unilateral language in subsection (a) indicates a clear intention that withdrawal from a trade agreement cannot be done on a unilateral basis. This makes sense. After all, trade agreements are enacted through bicameralism and presentment, and allowing the President to terminate a statute unilaterally after its adoption subverts the entire constitutional structure of the United States.
Second, courts must construe statutes to avoid creating surplusage. If I were to decide that termination can occur under subsection (a) on a unilateral basis, then it would render the specific unilateral language in subsection (b) surplus. Doing so would undermine the statute as passed by Congress, and I decline to do so.
Third, Congress knows how to employ certain language to accomplish its intent. For example, Congress knew how to grant the President unilateral authority under the trade act, as evidenced by subsection (b). The fact that it did not use such language in subsection (a) indicates that no unilateral power exists.
These canons show that the intent of Congress in its structuring of subsection (a) did not intend to grant the President the unilateral authority to terminate a trade agreement under 19 U.S.C. § 2135(a).
The President has purported that the United States is withdrawing from NAFTA effective within six months. Did he have the power to do so under the law?
The answer must be: “no.”
The President is not granted any authority in regards to the regulation of international commerce under the Constitution. He must instead faithfully execute the regulation of commerce as Congress sees fit. U.S. Const. Art. I, § 8, cl. 3. Because the Constitution does not grant the President the authority, his action can only be sustained with Congressional authorization, either implicit or explicit. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). No such authorization exists here.
In fact, the construction of the termination provision demonstrates that Congress has not envisioned the unilateral withdrawal from NAFTA. Moreover, given the legal impact of such an action, bicameralism and presentment are necessary for any withdrawal from such trade agreements. See Chadha, supra.
It is unthinkable that the framers would have envisioned an arrangement where the President could have unilaterally extinguished a statute. The structure of our republic denies any individual the awesome power to change the law. Our government joins and binds our collective will. And even when a majority of our government seeks to take action, it is sometimes held ineffective regardless. I therefore have no hesitation in concluding that the President lacked the unilateral authority to terminate NAFTA.
This case warrants, however, a brief comment on the role of the judiciary. We do not consider the impact of NAFTA on the economy of the United States. We do not give weight to the foreign relations of the United States. Instead, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137 (1803). Our role is to apply the law, even if it results in an unpopular decision. If the people wish to repeal a statute, such as NAFTA, they must do so through the Congress that is vested with the sovereign authority of the United States.
The rule of law does not allow the President to unilaterally change the legal regime of the United States, after all, we threw of the yoke of a monarchy years ago.
From the foregoing analysis, I would hold that the President’s action is void, as it is without statutory support. I need not address any constitutional issues implicated regarding the termination of treaties. Further, I see no reason for the Court to cabin its analysis to a subsection that could never have applied to this dispute. Nor do I believe that this decision can be sustained on a line of argument never even mentioned by the parties.
But my disagreement with the Court is best described as a “tough call.” Deciding when a decision can be made upon grounds not briefed by the parties is an incredibly difficulty line to draw. Reasonable minds can disagree on these issues greatly.
For these reasons, I concur only in the judgment of the Court.
[*] Justice Wildorca took no part in the decision.