Whether Uruguay Round Agreements Required

Ratification as a Treaty

The U ruguay Round Agreem ents concluded under the auspices of the General Agreem ent on Tariffs 

and Trade did not require ratification by the Senate as a treaty, but could constitutionally be executed by the President and approved and im plem ented by A ct of Congress

November 22, 1994

M e m o r a n d u m O p in io n f o r t h e

U n it e d St a t e s T r a d e R e p r e s e n t a t iv e

This memorandum supplements our earlier opinion on the question whether the 

Uruguay Round Agreements concluded under the auspices of the General Agreement on Tariffs and Trade (the “GATT”) must be ratified as a treaty.1 It replies to 

two later papers by Professor Laurence H. Tribe, and his testimony before the Senate Committee on Commerce, Science, and Transportation, that have disputed our 

conclusion on that subject.2 After considering Professor Tribe’s arguments, we 

again conclude that the Uruguay Round Agreements may constitutionally be 

adopted by the passage of implementing legislation by both Houses of Congress, 

together with signing by the President.

I. The Treaty Clause

Professor Tribe argues that there exists, for constitutional purposes, “a discrete 

subset of international agreements properly categorized as treaties.”3 Professor

1 See M em orandum for A m bassador M ichael Kantor, U S T rade Representative, from W alter Dellinger, 

A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, R e m W hether the G ATT U ruguay R ound M ust be R atifie d as a Treaty (July 29, 1994) (the “OLC G A T T M em orandum ” ). The G A TT originated in 1947 See 61 

Slat. A -3, T I.A S No. 1700 “Essentially the G A T T is now a group of som e 200 treaties consisting of very 

com plex am endm ents, side codes, special agreem ents and so on ” W hat's N eeded fo r the G ATT A fter the

U ruguay R o u n d 9, R em arks by John H Jackson, 1992 Proc Am. Soc'y Int’l L 69, 71. In 1979, Congress 

approved fourteen trade agreem ents on matters ranging from antidum ping and governm eni procurem ent to a 

bilateral trade agreem ent with Hungary See 19 U.S.C. § 2503. The Uruguay Round A greem ents include 

successor agreem ents to m any o f these prior trade agreem ents

2 See L etter for the President from Professor Laurence H. T n b e (Sept 12, 1994) (the “T n b e Letter”), 

M em orandum for W alter D ellinger, Abner J M ikva, George J. M itchell and Robert Dole, from Laurence H. 

T nbe, R e The C onstitutional Requirement oj Subm itting the U ruguay Round as a Treaty (O ct. 5, 1994) (the 

“T nbe G A T T M em orandum ”), S. 2467, G A T T Im plem enting Legislation. Hearings B efore the Senate

Comm on C om m erce, Science, and Transportation, 103d C ong (1994) (Prepared Statem ent of Laurence H 

T nbe, Professor, H arvard U niversity Law School) (the “T nbe Prepared Statem ent”) The bulk of the T n b e 

G A TT M em orandum , and parts of the Tnbe Prepared Statem ent, are devoted to criticizing the views of 

Professors B ruce A ckerm an and David Golove in their Letter to the President (Sept 21, 1994), and in a 

forthcom ing book. W e take no position in the dispute am ong Professors T nbe, Ackerm an and Golove

3 T ribe G A T T M em orandum at 2.

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W hether Uruguay Round Agreem ents Required Ratification as a Treaty

Tribe “readily admit[s],” however, “that the Constitution itself provides little guidance about the content of this category.”4 He also concedes that “[t]he Supreme 

Court has never addressed directly the constitutionality of using the congressionalexecutive agreement to deal with matters that fall within the Constitution’s ‘treaty’ 

category.”5 Nor does he attempt “to construct any sort of general test for determining whether any given agreement should be considered a treaty.”6 Despite that, 

Professor Tribe insists that “[the Uruguay Round] warrants the high level of deliberation and consensus that the formal requirements of the Treaty Clause guarantee.”7

Like Professor Tribe, we find that neither the text of the Constitution, nor the 

materials surrounding its drafting and ratification, nor subsequent Supreme Court 

case law interpreting it, provide clear-cut tests for deciding when an international 

agreement must be regarded as a “treaty” in the constitutional sense, and submitted 

to the Senate for its “Advice and Consent” under the Treaty Clause, U.S. Const, 

art. II, § 2, cl. 2.8 In such circumstances, a significant guide to the interpretation of 

the Constitution’s requirements is the practical construction placed on it by the 

executive and legislative branches acting together. See, e.g., The Pocket Veto

Case, 279 U.S. 655, 689-90 (1929) (“[l]ong settled and established practice is a 

consideration of great weight in a proper interpretation of constitutional provisions 

of this character. Compare . . . State v. South Norwalk, 11 Conn. 257, 264 

[(1904)], in which the court said that a practice of at least twenty years duration ‘on 

the part of the executive department, acquiesced in by the legislative department, 

while not absolutely binding on the judicial department, is entitled to great regard 

in determining the true construction of a constitutional provision the phraseology 

of which is in any respect of doubtful meaning.’”); Youngstown Sheet & Tube Co.

4 Id at 17

5 Id at 12

6 Id. at 17, see also T n b e Prepared Statem ent at 310 ("I do not offer a com prehensive set o f criteria for 

defining the boundary betw een treaties and other international agreem ents . . . ’").

7 T nbe G A TT M em orandum at 20, see also T nbe Prepared Statem ent at 310

8 Professor Tribe has invented his own five-part test for concluding that the Uruguay Round A greem ents 

must be considered a treaty in the constitutional sense See T n b e G A TT M em orandum at 19-20; see also

Tribe Prepared Statem ent at 310 (four-factor test) The suggested cn te n a might provide useful guidelines to 

executive branch policym akers in deciding whether to subm it an international agreem ent to the Senate for its 

concurrence rather than to Congress as a whole, but we see no reason to thm k that Professor T rib e ’s tests are 

constitutionally com pelled (Further, Professor T rib e's application of his own tests rests on erroneous assum ptions about the powers of the W orld Trade O rganization and the effects o f the U ruguay Round A greem ents. See Part III below )

Professor Tribe also notes that the State Departm ent has its own longstanding guidelines for advising 

policym akers when to consider an international agreem ent to be a treaty requiring Senate concurrence. See

Tribe GATT M em orandum at 18-19 (citing State D ep't C ircular 175 (Dec 13, 1955), as am ended, 1 1 Foreign Affairs M anual, ch. 700, § 721 3) By Professor T n b e ’s own showing, however, the application o f these 

guidelines to the U ruguay Round A greem ents is inconclusive, even accepting Professor T n b e ’s analysis, 

only four of the eight factors on the State D epartm ent’s list support the view that Senate concurrence should 

be obtained for the Uruguay Round Agreements Tribe GATT M em orandum at 18. M oreover, the State 

D epartm ent’s guidelines are not intended to be constitutional tests determ ining whether or not an international agreem ent must be ratified as a treaty, but rather to articulate the policy considerations that the executive branch should follow m deciding what procedures to follow with regard to such agreem ents

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v. Saw yer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring) (“The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature.”). 

Indeed, the Court has been particularly willing to rely on the practical statesmanship of the political branches when considering constitutional questions that involve foreign relations. See, e.g., United States v. V erdugo-U rquidez, 494 U.S. 

259, 273 (1990); D am es & Moore v. Regan, 453 U.S. 654, 686 (1981); see also

Harold H. Koh, The National Security Constitution 70-71 (1990) (historical 

precedent serves as “quasi-constitutional custom” in foreign affairs); Griffin B. 

Bell & H. Miles Foy, The President, the Congress, and the Panama Canal: An

Essay on the P ow ers o f the Executive and Legislative Branches in the Field o f

Foreign Affairs, 16 Ga. J. Int’l & Comp. L. 607, 640-41 (1986); Gerhard Casper, 

Constitutional Constraints on the Conduct o f Foreign and Defense Policy: A

N onjudicial M odel, 43 U. Chi. L. Rev. 463, 478 (1976).

Such practical construction has long established (and Professor Tribe acknowledges) that “there are many classes of agreements with foreign countries which are 

not required to be formulated as treaties” for constitutional purposes.9 Most pertinently here, practice under the Constitution has established that the United States 

can assume major international trade obligations such as those found in the Uruguay Round Agreements when they are negotiated by the President and approved 

and implemented by Act of Congress pursuant to procedures such as those set forth 

in 19 U.S.C. §§ 2902 & 2903.10 In following these procedures, Congress acts under its broad Foreign Commerce Clause pow ers," and the President acts pursuant 

to his constitutional responsibility for conducting the Nation’s foreign affairs.12 

The use of these procedures, in which both political branches deploy sweeping 

constitutional powers, fully satisfies the Constitution’s requirements; the Treaty 

Clause’s provision for concurrence by two-thirds of the Senators present is not 

constitutionally mandatory for international agreements of this kind.13

9 Validity o f C om m ercial A viation Agreem ents, 40 Op A tt’y Gen. 451, 452 (1946), see also U nited States

v. C u rtiss-W n g h t Export C orp., 299 U S 304, 318 (1936), T n b e G A TT M em orandum at 2-3

10 For a survey o f the vanous statutory regim es relating to international trade agreem ents in the penod 

from 1930 onw ards, see H arold H. Koh, C ongressional C ontrols on Presidential Trade Policym aking A fter

I N.S. v C hadha, 18 N.Y.U J In t’l L. & Pol. 1191, 1192-1208 (1986). O n Congressional-Executive agreem ents generally, see K enneth C. Randall, The T reaty Power, 51 O hio St L J. 1089, 1093-96 (1990).

11 See U S. C onst art. I, § 8, cl. 3; Barclays B ank PLC v. F ranchise Tax Bd. o f C alifornia, 512 U S 298, 

329 (1994), C alifornia Bankers A s s ’n v. Schultz, 416 U S . 21, 59 (1974). The Treaty Clause should not be 

interpreted to curtail C ongress's pow er under the Foreign C om m erce Clause See D ow nes v Bidwell, 182 

U.S. 244, 313 (1901) (W hite, J , joined by S hiras and M cK enna, JJ , concurnng), id. at 370 (Fuller, C.J., 

joined by H arlan, B rew er and Peckham , J J , dissenting).

12 See, e g , D epartm ent o f N avy v Egan, 4 8 4 U.S 518, 529 (1988) (Suprem e Court has “recognized ‘the 

generally accepted view that foreign policy w as the province and responsibility of the Executive ” * (quoting 

H aig v. Agee, 453 U.S. 280, 293-94 (1981)), A lfre d D unhill o f London, Inc. v. Republic o f Cuba, 425 U S 

682, 705-06 n 18 (1976) (“the conduct of [foreign policy] is com m itted pnm anly to the Executive B ranch”); 

U nited States v Louisiana, 363 U.S. 1, 35 (1960) (President is “the constitutional representative of the 

United States in its dealings with foreign nations.”).

n A lthough we insist on the vanety of legal instrum ents by which the United States may m ake agreem ents with foreign nations, we do not dispute Professor T n b e ’s view that some such agreem ents may have to

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W hether Uruguay Round Agreem ents Required Ratification as a Treaty

Professor Tribe recognizes the existence of these decades-old practices, which 

have resulted in the approval of such fundamental trade pacts as the North American Free Trade Agreement (the “NAFTA”).14 But he disparages the use of Congressional-Executive agreements as merely a matter of “political leaders’ casual 

approach to the Constitution.”15 This dismissive characterization gives virtually no 

weight to the considered constitutional judgments of the political branches.16 We 

believe that that approach is mistaken. Disagreements and uncertainties surrounding the scope o f the Treaty Clause — including its interaction with Congress’s 

power to regulate commerce — are two centuries old. See below. Congress’s Foreign Commerce Clause authority and the President’s responsibility for foreign affairs are unquestionably broad. In such circumstances, the political branches can 

fairly conclude — and have in fact concluded — that even major trade agreements 

such as the Uruguay Round Agreements may be approved and implemented by 

Acts of Congress, rather than ratified as treaties.17 Indeed, Professor Tribe himself 

wrote in 1988 that “it does appear settled that a hybrid form of international 

agreement — that in which the President is supported by a Joint Resolution of 

Congress — is coextensive with the treaty pow er. Such Congressional-Executive

be ratified as treaties. Thus, Professor T n b e is incorrect in asserting that we believe that the treaty ratification process and the ordinary legislative process are interchangeable See T nbe G A TT M em orandum at 3 

On the contrary, we explicitly stated that we were not considering that claim See OLC G A TT M em orandum 

at 4-5 n 8 (Indeed, as Professor T n b e points out, the State D epartm ent’s guidelines in C ircular 175 them ­

selves attest to the executive branch’s view that some international agreem ents should be considered to be 

treaties. See T nbe Prepared Statem ent at 298.) M oreover, absolutely nothing in the O LC G A TT M em orandum implies that “the Treaty C lause is to be read out of the C onstitution ” T nbe L etter at 3 W hatever may 

be true of other international agreem ents such as the United Nations C harter, see T n b e G A TT M em orandum 

at 8, our contention is only that trade agreem ents such as the Uruguay Round A greem ents do not require 

ratification as “treaties ”

14 See T nbe G A TT M em orandum at 7 The Tribe Prepared Statem ent specifically questions the constitutionality of two earlier free trade agreem ents — NAFTA and the 1988 Free Trade A greem ent with Canada. 

Id. at 14 In the earlier T nbe G A TT M em orandum , however, Professor T n b e wrote that N AFTA “is surely 

less sweeping in its scope [than the Uruguay Round A greem ents] and at m ost shows that the U ruguay Round 

might represent the second, even if not the first, agreem ent o f its kind that became law without Senate ratification ” Id. at 8 In view of his varying statem ents, we are uncertain of the status o f existing trade agreements — NAFTA, the Canadian Free Trade Agreement, the 1979 Tokyo Round, and the United States-Israel 

Free Trade Agreem ent — on Professor T n b e ’s theory

15 T n b e G A TT M em orandum at 11, see also id at 2 (“p n o r m anifestations of a casual attitude tow ard the 

C onstitution’s structural requirem ents are insufficient in this context to justify abandoning the precise guarantees of the Treaty C lause”).

16 Professor T n b e him self acknow ledges that “[t]he issue w hether m ajor international agreem ents should 

be subm itted for m ajonty approval by Congress or for superm ajonty approval by the Senate was the topic of 

fierce debate in the halls of Congress, the popular press, and the pages of law review s dunng the 1940s.” 

T nbe G A TT M em orandum at 6 In light o f that vigorous and protracted debate, it is strange that Professor 

Tnbe should dism iss the political branches’ practice as a mere m atter of “political convenience ” Id at 11

17 If the Senate believed that this practice trenched on pow ers that belong to it, then it had “both the incentive to protect its prerogatives and institutional m echanism s to help it do so.” U nited States v M unozFlores, 495 U.S 385, 393 (1990) The fact that it has not done so “is relevant to the substantive task of 

interpreting'’ the Treaty Clause Id at 404 n 2 (Stevens, J., concum ng in judgm ent) It is not at all unlikely 

lhat the Senate might guard against perceived encroachm ents on its constitutional prerogatives: as Professor 

Tnbe notes, the Senate has in other recent contexts insisted on its claim ed prerogatives under the Treaty 

Clause. See T n b e G A TT M em orandum at 3 (Vienna Convention); see also H arold H Koh, The National

Security Constitution at 43 (Anti-Ballistic M issile Treaty)

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agreements are the law of the land, superseding inconsistent state or federal laws.” 

Laurence H. Tribe, American Constitutional Law 228 n.18 (2d ed. 1988) 

(emphasis added).

Historically, the scope o f the Treaty Clause, and its interplay with other constitutional clauses, have provoked controversies of several different kinds. The persistence o f these controversies (which trace back to the eighteenth century), and the 

nearly complete absence of judicial decisions resolving them, underscore the necessity of relying on congressional precedent to interpret the relevant constitutional 

provisions. No one could deny that “congressional practice alone cannot justify 

abandonment of the Constitution’s structural provisions,” 18 but it begs the question 

to assume that the treaty ratification process is structurally required by the Constitution in cases such as this.19 Like other “great ordinances of the Constitution,” 

the Treaty Clause “do[es] not establish and divide fields of black and white.” 

Springer v. G overnm ent o f the Philippine Islands, 277 U.S. 189, 209 (1928) 

(Holmes, J., joined by Brandeis, J., dissenting).

One recurring kind of dispute over the Treaty Clause has been whether international agreements could be given effect by Executive action alone, or whether they 

required submission to the Senate for its concurrence. See, e.g., 2 M essages and

P apers o f the Presidents 33 (James D. Richardson ed., 1896) (President M onroe’s 

message to the Senate of April 6, 1818, expressing uncertainty whether the Executive alone could make an international agreement for the naval disarmament of the 

Great Lakes, or whether Senate advice and consent was required).20 A second type

18 Tribe Prepared Statem ent at 299

19 Professor T rib e's repeated invocation in this connection o f IN S v C hadha, 462 U S 919 (1983), which 

invalidated the one-H ouse “legislative veto,” is not to the point See, e g , T ribe Prepared Statem ent at 299- 

300, Tribe G A T T M em orandum at 10-11 First, the Chadha C ourt found Article l ’s provisions for bicam eral 

passage of legislation and its presentm ent to the President, w hich it held offended by the legislative veto, to 

be “[e]xplicit and unam biguous ” 462 U S at 945. That cannot be said of the Treaty Clause, whose m eaning 

and scope have long been found lo be highly indeterm inate. Second, the Executive, albeit not invariably, had 

long taken the position that the legislative veto violated separation o f pow ers principles. See id. at 969-74 

(W hite, J., dissenting); see also Reprogram m ing—Legislative C om m ittee O bjection, 1 O p O.L.C 133, 135 

(1977) (Indeed, the Senate Judiciary Committee, after careful historical study, reached a sim ilar conclusion 

See S Rep. N o 54-1335, at 8 (1897).) By contrast, the practice o f subm itting major trade pacts as C ongressional-Executive agreem ents has obviously required the approval o f the Senate — the constitutional actor 

whose prerogatives Professor T n b e asserts have been jeopardized Finally, Chadha certainly does not im ply 

that the longstanding practices o f the political branches are irrelevant to the interpretation of the C onstitution

W e also note that w hile it is generally true that legislative precedent is m ost persuasive when it can be 

traced back to the N ation’s founding, seeT nbe G A T T M em orandum at 10, T n b e Prepared Statem ent at 299, 

the C o u rt’s case law on the subject is in fact m ore com plex than Professor Tribe indicates Even early legislative decisions may have violated the C onstitution, see, e g., N ew York Tim es Co v Sullivan, 376 U S. 254, 

276 (1964) (S edition A ct o f 1798 violated First Am endm ent). O n the other hand, in U nited States v M id ­

west O il Co., 236 U.S. 459 (1915), the Court upheld an 80-year old Presidential practice of tem porarily 

w ithdraw ing public lands from entry despite the absence of any express grant of authority for the practice It 

stated that “in determ ining the m eaning of a statute or the existence of a pow er, weight shall be given to the 

usage itself — even w hen the validity of the practice is the subject o f investigation.” Id at 473

President M onroe’s uncertainty over the scope and m eaning o f the Treaty Clause is particularly striking, given that he him self had spoken to the T reaty Clause in the V irginia R atifying Convention See 9 The

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W hether Uruguay Round A greem ents Required Ratification as a Treaty

of recurring dispute, more pertinent here, centered on the respective powers of the 

Senate and the House of Representatives in such areas as the regulation of foreign 

trade, where different clauses of the Constitution assign responsibilities either to 

one House alone or to both Houses together. As Secretary of State Dulles explained in testimony before the Senate Judiciary Committee in 1953, there is an

undefined, and probably undefinable, borderline between international agreements which require two-thirds Senate Concurrence, but 

no House concurrence, as in the case of treaties, and agreements 

which should have the majority concurrence of both Chambers of 

Congress. . . . This is an area to be dealt with by friendly cooperation between the three departments of Government which are involved, rather than by attempts at constitutional definition, which 

are futile, or by the absorption, by one branch of Government, of responsibilities which are presently and properly shared.

Treaties and Executive Agreem ents: Hearings Before a Subcomm. o f the Senate

Comm, on the Judiciary, 83d Cong. 828 (1953).

Intra-branch disputes over the Treaty Clause can be traced as far back as 1796, 

when Representative Albert Gallatin argued that the “[t]reaty-making power . . . 

may be considered as clashing” with Congress’s “authority of regulating trade,” 

and that “[a] difference of opinion may exist as to the proper construction of the 

several articles of the Constitution, so as to reconcile those apparently contradictory provisions.” 5 Annals of Cong. 437 (1796); see also id. at 466-74 (arguing 

that Foreign Commerce Clause limits Treaty Clause); Note, United States P articipation in the G eneral Agreem ent on Tariffs and Trade, 61 Colum. L. Rev. 505, 

511 (1961); contrast Tribe Letter at 3 (Treaty Clause limits Foreign Commerce 

Clause).

Again, in 1844, the Senate Foreign Relations Committee, under Senator Rufus 

Choate, presented a report on the Prussian and Germanic Confederation Treaty, in 

which the Committee urged rejection of the treaty because “the legislature is the 

department of government by which commerce should be regulated and laws of 

revenue be passed. The Constitution, in terms, communicates the power to regulate commerce and to impose duties to that department. It communicates it, in 

terms, to no other. Without engaging at all in an examination of the extent, limits, 

and objects of the power to make treaties, the committee believe that the general 

rule of our system is indisputably that the control of trade and the function of taxing belong, without abridgement or participation, to Congress.” Com pilation o f

Reports o f the Senate Committee on Foreign Relations, 1789-1901, S. Doc. No. 

56-231, pt. 8, at 36 (2d Sess. 1901).

D ocum entor/ H istory o f the Ratification o f the Constitution 1115 (John P. Kaminski, Gaspare J Saladino, et 

al eds., 1990), 10 id. ai 1235 (1993).

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From time to time, the House o f Representatives has also insisted that a treaty 

be made dependent on the consent o f both Houses of Congress. This has occurred 

when, for example, the House’s pow er over appropriations has been at issue, as in 

the Gadsden purchase treaty of 1853 and the Alaskan purchase treaty of 1867.21 In 

1880, the House asserted that the negotiation of a commercial treaty that fixed duties on foreign imports would be an unconstitutional invasion of its prerogatives 

over the origination of revenues; in 1883, it demanded, in connection with a proposed commercial treaty with Mexico, to have a voice in treaties affecting revenue.22

In 1898, the United States annexed Hawaii by joint resolution, Joint Res. 55, 

55th Cong., 30 Stat. 750 (1898), even though the Senate had previously rejected an 

annexation treaty, and even though opponents of the measure argued strenuously 

both in Congress and in the press that such an annexation could be accomplished 

only by treaty, and not by a simple legislative act.23

M ore recently, the court in Edw ards v. Carter, 580 F.2d 1055 (D.C. Cir.) (per 

curiam), cert, den ied, 436 U.S. 907 (1978), rejected the claim by members of the 

House of Representatives that the treaty power could not be used to transfer the 

Panama Canal to Panama. The plaintiffs relied on the Constitution’s Property 

Clause, U.S. Const, art. IV, § 3, cl. 2, which commits to “[t]he Congress” the 

power “to dispose of and make all needful Rules and Regulations respecting the 

Territory or other Property belonging to the United States.” The court answered 

this claim by pointing out that

[t]he grant of authority to Congress under the property clause states 

that “The Congress shall have Power . . not that only the Congress shall have power, or that the Congress shall have exclusive 

power. In this respect the property clause is parallel to Article I,

§ 8, which also states that “The Congress shall have Power . . . .”

Many of the powers thereafter enumerated in § 8 involve matters 

that were at the time the Constitution was adopted, and that are at 

the present time, also commonly the subject of treaties. The most 

prominent example of this is the regulation of commerce with foreign nations, Art. [I], § 8, cl. 3, and appellants do not go so far'as to 

contend that the treaty process is not a constitutionally allowable 

means for regulating foreign commerce. It thus seems to us that, on 

its face, the property clause is intended not to restrict the scope of 

the treaty clause, but, rather, is intended to permit Congress to ac21 See Louis Fisher, C onstitutional Conjhcts betw een C ongress and the P resident 226 (3d ed 1991)

^ Id at 227

21 See M em orandum for Abraham D Sofaer, Legal Adviser, Departm ent o f Slate, from Douglas W

Kmiec, A cting A ssistant Attorney General, O ffice of Legal Counsel, Re. Legal Issues Raised bx Proposed

Presidential P roclam ation to E xtend the Territorial Sea, 12 O p O L C 2 38,251-52 (1988).

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W hether Uruguay Round Agreem ents Required Ratification as a Treaty

complish through legislation what may concurrently be accomplished through other means provided in the Constitution.

580 F.2d at 1057-58. As the court noted, the Constitution on its face permits foreign commerce to be regulated either through the Treaty Clause or through the 

Foreign Commerce Clause. Nothing in the language of the Constitution privileges 

the Treaty Clause as the “sole” or “exclusive” means of regulating such activity.24 

In actual practice, Congress and the President, understanding that nothing in the 

Constitution constrained them to choose one procedure rather than the other, have 

followed different procedures on different occasions.25

In general, these inter- and intra-branch disputes over the scope of the Treaty 

Clause have been resolved through the political process, occasionally with marked 

departures from prior practices. See G oldw ater v. C arter, 444 U.S. 996, 1004 n.l 

(1979) (Rehnquist, J., concurring in judgment); John O. McGinnis, Constitutional

Review by the Executive in Foreign Affairs and War Powers: A Consequence o f

Rational Choice in the Separation o f P ow ers, 56 Law & Contemp. Probs. 293, 

305-08 (1993). For example, after the House of Representatives objected to the 

concentration of power over Indian affairs in the hands of the Senate through the 

Treaty Clause, Congress in 1871 enacted a rider to an Indian appropriation bill

24 A ccordingly, it has been held that a trade agreem ent executed by the President pursuant to the R eciprocal Trade Agreem ents Act of 1934, Pub L. No 73-316, 48 Stat 943, was a valid exercise of C ongress's 

delegated Foreign Com m erce Clause powers together with the President’s inherent powers, and did not 

require separate ratification as a treaty, even if com m ercial treaties m ight also have covered the sam e subject 

m atter See Star-K ist Foods, Inc v United States, 275 F 2d 472, 483-84 (C C.P.A 1959)

25 T he difficulties in attem pting to privilege the Article 11 treaty ratification process over the pow ers conferred by Article I on Congress as a whole can be illustrated from Professor T n b e ’s ow n discussions o f the 

war powers. Professor Tribe has recently joined several other professors o f law in arguing that “the totality 

of C ongress’s Article I, § 8 powers reserves to C ongress alone the prerogative and duty to authorize initiation of h ostilities” Letter for W alter Dellinger, Assistant A ttorney G eneral, from Professor Laurence H. 

T nbe and others, at 3 (n d ; fax received O ctober 14, 1994) (em phasis added). O n that assum ption, the 

existence of a mutual defense treaty between the United States and an ally, duly ratified by the Senate, would 

be legally insufficient, in the absence of further bicam eral action by Congress, to justify engagem ent in hostilities. Yet Professor Tribe has written elsew here that “ [cjollective defense treaties have become the way of 

military life in this century These treaties, ratified by the President pursuant to the consent o f the Senate, 

generally com m it the United States to come to the aid o f any signatory lhat is m ilitarily attacked. W hether 

these treaties can serve as a predicate for executive deploym ent of military force has not been resolved. It 

seems unlikely that, in the absence o f a declaration of war by Congress, a prolonged m ilitary operation would 

be sanctioned by such a treaty Even if the treaty is, in a sense, an inchoate declaration of w ar, it is one 

form ulated by the treatym akers — that is, the President and the Senate — not by the Congress as the C onstitution dem ands M ore plausible, however, is the suggestion that a collective defense treaty justifies presidential use o f force in support of a harried ally until C ongress has had am ple time to determ ine w hether it 

favors Am erican military involvement m the conflict.” Laurence H. Tribe, Am erican C onstitutional Law at 

233-34 (footnotes om itted)

O ur point is not that there may be an inconsistency betw een the bald claim that A rticle I reserves to C ongress alone the pow er to authorize the initiation o f hostilities, and the more nuanced view that a mutual 

defense treaty can suffice to authorize interim military action on behalf o f an ally (In fact, the positions 

might be reconciled ) Rather, we cite these w ritings only to show that a constitutional scholar as serious and 

thoughtful as Professor Tribe may experience difficulty m saying precisely when the Article 1 pow ers of 

Congress overlap with, when they oust, and w hen they are ousted by, the Senate’s treaty power under Article

II

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Opinions o f the Office o f Legal Counsel

declaring that no fresh treaties were to be made with the Indian nations. Act of 

Mar. 3, 1871, ch. 120, 16 Stat. 544, 566. Although the United States had been 

making Indian treaties for almost a century before that enactment, see United

States v. K agam a, 118 U.S. 375, 382 (1886), after 1871 “the federal government 

continued to make agreements with Indian tribes, many similar to treaties, that 

were approved by both Senate and House,” but “the House’s action sounded the 

death knell for treaty making.” Felix S. Cohen, Handbook o f Federal Indian Law

107 & n.370 (1982 ed.). The policy of the 1871 enactment remains in effect. See

25 U.S.C. § 71. We are uncertain whether this longstanding legislation would be 

constitutional by Professor Tribe’s lights.26

The existence of such recurring disputes over the scope and meaning of the 

Treaty Clause undermines any dogmatic claim that a major trade agreement such as 

the Uruguay Round Agreements, which stands at the intersection of the foreign 

affairs, revenue raising and commerce powers, m ust be ratified as a treaty and cannot be implemented by the action o f both Houses of Congress. The distinctions 

between the Federal government’s treaty power and the other constitutional powers 

in play are simply too fluid and dynamic to dictate the conclusion that one method 

must be followed to the complete exclusion of the other. Here, if anywhere, is an 

area where the sound judgment of the political branches, acting in concert and accommodating the interests and prerogatives of one another, should be respected. It 

is simply mistaken to suggest that this established practice of mutual adjustment 

and cooperation on a constitutional question of inherent uncertainty27 reflects mere 

“political convenience rather than constitutional commitment.” Tribe Prepared 

Statement at 300. None of the three political branches involved in working out the 

procedure for Congressional-Executive agreements has abdicated its constitutional 

responsibility; none has endangered the basic, structural provisions of Articles I 

and II.

Finally, Professor Tribe’s newly-crafted account of the treaty power entails that 

the Federal Government may diminish State sovereignty by employing the Treaty 

Clause to ratify an international agreement, but not by using any other constitu26 Interestingly, in a footnote in his treatise, Professor T ribe w rites that “the power of C ongress to regulate 

com m erce w ith Indian tribes has been rendered partly superfluous by the Suprem e C ourt’s extension of the 

treaty pow er to encom pass federal treaties with Indian tribes " Laurence H Tribe, Am erican C onstitutional

Law at 305 n. 1 T his description indicates th a t Professor T ribe believes (correctly, in our view) that the 

Indian C om m erce C lause and the Treaty C lause overlap, and that either may be used as a source of legal 

authority for the Federal G overnm ent’s dealings with the Indian tribes If so, then the Treaty Clause and the 

Foreign C om m erce C lause ought equally to provide sources o f authority for the United S tates’s regulation of 

com m erce with foreign nations

27 It has long been recognized that Article II confers the treaty power “in general terms, w ithout any d e ­

scription o f the objects intended to be em braced by it.’’ H olm es v Jennison, 39 U S . (14 P e t) 540, 569 

(1840) (plurality op ) M ore generally, '‘[o]ne cannot read the Constitution w ithout being struck by its astonishing brevity regarding the allocation of foreign affairs authority among the branches . [T]he document grants clearly related pow ers to separate institutions, w ithout ever specifying the relationship between 

those pow ers, as for exam ple, with Congress’s pow er to declare war and the president’s pow er as com - 

m ander-in-chief." H arold H. Koh, The N ational Security C onstitution at 67

240
Whether Uruguay Round Agreem ents R equired R atification as a Treaty

tional procedure for giving such an agreement effect. Basic to Professor Tribe’s 

analysis is the assumption that some “set of intrusions on state sovereignty is sufficiently grave to trigger the requirements of the Treaty Clause.” Tribe Prepared 

Statement at 307. On this view, the Federal Government is not constitutionally 

prohibited from curtailing State sovereignty to a certain degree, but it may not accomplish such a curtailment by the ordinary Article I process of legislation. We 

find that conclusion odd and unconvincing. If the Federal Government may not 

trespass on State sovereignty beyond certain limits, then the attempt to do so by 

making a treaty would not remove the constitutional infirmity: it is by now wellestablished that treaties may not violate basic constitutional ordinances, including 

the principles of federalism. See, e.g., Reid v. Covert, 354 U.S. 1 (1957); see also

Laurence H. Tribe, American Constitutional Law at 228. On the other hand, if it 

does lie within the Federal Government’s power to curtail State sovereignty under 

an international agreement, we see no reason why the Government may not invoke 

Article I procedures for giving effect to that agreement.28 In short, if the Uruguay 

Round Agreements unduly invade State sovereignty, ratification as a treaty will not 

save them from u n c o n stitu tio n al; if they are not an undue invasion, they can be 

given effect by Act of Congress.

II. The Uruguay Round Agreements and Presidential Power

In considering Professor Tribe’s critique of the Uruguay Round Agreements — 

which focuses on the asserted impairment that the agreement causes to State sovereignty29— it should be borne in mind that judicial decisions have treated GATT as 

effectively a “Treat[y],” and hence “supreme Law,” within the meaning of the Supremacy Clause, U.S. Const, art. VI, § 2, and have held provisions of State law to 

be superseded by the GATT when in conflict with it.30 It is also important to re28 We do not think that M issouri v. H olland, 252 U S 416 (1920), establishes the contrary Language 

from Justice H olm es’s opinion in that case has been taken to imply that treaties might lim it Slate sovereignty 

in ways that A cts of Congress could not Id at 433. Bui the C ourt’s later jurisprudence has undercut any 

such supposition. As Professor Tribe has written, “M issoun v H olland views the treaty pow er as a 

delegation of authority to federal treaty-m akers independent o f the delegations em bodied in the enum eration 

of C ongress’ ow n powers. The decision thus sanctions a legal regime w herein certain subjects m ay be exclusively within the am bit of the states wiih respect to dom estic legislation, but not with respect to international 

agreem ents and laws enacted by Congress pursuant thereto The im portance of treaties as independent 

sources of congressional power has waned substantially in the years since M issoun v Holland, how ever, the 

Supreme C ourt m the intervening period has so broadened the scope of Congress* constitutionally enum erated powers as to provide am ple basis fo r m ost im aginable legislative enactm ents quite apart fro m the treaty

pow er.” Laurence H. Tnbe, Am erican C onstitutional Law at 227 (em phasis added)

?9 See, e g , T n b e Prepared Statem ent at 302.

30 See Inter-M aritim e F onvarding Co. v United States, 192 F Supp 6 3 1 ,6 3 7 (C ust Ct 1961), BaldwinLim a-Hanulton Corp. v Superior Court, 208 Cal A pp.2d 803, 819-20, 25 Cal Rptr. 798 (1962), Territory'

v. Ho, 41 Haw 565, 568 (1957), see also Bethlehem Steel Corp v Board o f C om m ’rs o f D ep’t o f Water &

Power, 276 C al App 2d 221, 80 Cal Rptr 800, 804 n 9 (1969) (finding it unnecessary ‘‘to delve into an 

extensive analysis of the effect o f G A TT” on State law because federal pow er to conduct foreign trade policy 

“is exclusive in this Field'*), K S B Tech. Sales Corp. v North Jersey D ist W ater Supply Comm ’n, 3 8 1 A.2d 

774, 778 (N J 1977) (”‘[t]he legal significance o f G A TT has been considered by all parties as equivalent to

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Opinions o f th e Office o f Legal Counsel

member that the existing GATT arrangements include dispute resolution procedures, which often involve referring disputes to panels of individuals, who act in an 

individual and not a governmental capacity.31 Professor Tribe does not contend 

that the existing version of GATT or the dispute resolution procedures that have 

developed under it are unconstitutional as applied to the Federal or State governments of this country; rather, he alleges that “[t]he Uruguay Round’s establishment 

of the W orld Trade Organization [the WTO] and its dispute resolution mechanisms 

represents a [constitutionally] significant departure from prior versions of 

GATT.”32 Specifically, Professor Tribe objects that if the W TO’s dispute settlement body (or an Appellate Body on appeal) were “to find a United States law 

‘GATT-illegal,’ the United States would be bound by that decision unless it could 

persuade the entire GATT membership by consensus to overturn the adverse decision. . . . Unlike other W TO decisions under the Uruguay Round, dispute panel 

decisions, or Appellate Body decisions in the instance of an appealed case, would 

be final, unless every W TO Member nation agrees to reject the panel or Appellate 

Body’s recommendation. .. . This ‘reverse consensus’ requirement is a 180-degree 

turnaround from prior GATT practice; it means that individual nations, including 

the United States, no longer maintain a de facto veto over GATT dispute panel 

decisions. This turnaround . . . is alone sufficient to distinguish the Uruguay 

Round’s potential effects on state sovereignty from the effects of all previous 

GATT agreements.”33

Under existing GATT practice, “the Contracting Parties, acting jointly as a 

whole, have jurisdiction over the final disposition of the dispute procedure.”34 

Although decisions on adoption of panel reports have always been made by consensus, the existing GATT permits a vote on these matters. Thus, while the United 

States, in practice, can exercise a “ veto” over any adverse panel decision, this 

could be changed under existing GATT rules. The Uruguay Round Agreements

that o f a treaty . . In the context o f this litigation we do likew ise”), appeal dism issed, 435 U.S. 982 (1978); 

Delta Chem. C orp v. O cean C ounty Utils A uth., 554 A.2d 1381, 1384 (N J 1988) (G A TT exception applied to sew erage facilities products purchased by county), a f f d in part an d rev ’d in part, 594 A 2d 1343 

(N.J 1991); A rm strong v. Taxation D iv D irector, 5 N J Tax 117, 133 (1983) (“[ajssum ing that the states 

are bound by the provisions o f G A TT, imposition o f the New Jersey sales and use tax on sales of gold coins 

and gold and silver bullion does not discrim inate against sales o f products o f a signatory nation”), a ffd , 6 

N.J. Tax 447 (1984), 40 Cal A tt’y G en 65 (1962), 36 Cal. A tt'y Gen 147, 149(1960); 34 Cal. A tt’y Gen. 

302, 304-05 (1959), hut see A m erican Inst fo r Im ported Steel, Inc. v. C ounty o f Erie, 58 M isc 2d 1059, 297 

N Y S 2d 602, 607 (1968) (certain GATT provisions did not appear “in and of them selves [to] supersede 

local legislation"), r e v ’d, 32 A .D .2d 231, 302 N .Y .S.2d 61 (N.Y A D . 1969). See generally John H Jackson, 

The G eneral A greem ent on Tariffs an d Trade in U nited States D om estic Law , 66 Mich L Rev 249, 280-89 

(1967) (G A TT has dom estic legal effect in the U nited States insofar as it is Presidentially proclaim ed), id at 

297-311 (G A T T is directly applicable to state and local governm ents in the United States and supersedes 

conflicting state or local law)

31 See John H. Jackson, G A T T as an Instrum ent fo r the Settlem ent o f Trade D isputes, 1967 Proc. Am. 

Soc’y In t’l L. 144, 147-48, 151.

32 T n b e Prepared Statem ent at 302

33 Id. at 303-04.

34 John H Jackson, G A T T as an Instrument f o r the Settlem ent o f Trade D isputes, 1967 Proc Am S o c’y 

IntT L. at 149

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W hether Uruguay Round Agreem ents R equired Ratification as a Treaty

would alter this procedure by making the panel’s or Appellate Body’s report final 

unless the W TO States “decide[] by consensus not to adopt the [panel or] Appellate Body report” within a set period.35 Professor Tribe appears to take this procedural alteration — the loss of the de facto “veto” — as constitutionally decisive. 

When one asks why that should be so, it appears that his answer is that under the 

new dispute resolution process, “states to a significant degree will be forced to 

place their fates under the Uruguay Round in the hands of the Executive Branch, 

which may have incentives counter to those of particular states in the context of 

particular disputes .... [T]he Executive Branch, not Congress, . . . would determine the fate of state laws found to be in violation of GATT. If a state chose not 

to alter a measure found by the WTO to be GATT-illegal, the United States Trade 

Representative could choose to bring an action against the state in a federal court, 

see S. 2467, 103d Cong., 2d Sess. § 102(b)(2) (1994) . . . — even if Congress had 

chosen to allow the state’s measure to remain in effect and to accept trade sanctions on behalf of the entire nation rather than preempt the offending state law.”36

We do not understand why Professor Tribe finds constitutional significance in 

the Uruguay Round’s “reverse consensus” requirement. Under the current version 

of GATT, the States could equally well be said to be “in the hands of the Executive,” for the simple reason that the President, as the sole constitutional actor who 

may represent the United States abroad, alone speaks for the United States in the 

GATT organization. Thus, the President, through his delegate, possesses the 

“veto” over the outcome of a dispute resolution under existing GATT practice, and

may refuse to exercise it.37 In other words, State laws may, even under the current 

version of GATT, be finally determined to be “GATT-illegal” unless the executive 

branch takes affirmative action to prevent that result.38

Moreover, it is misleading to suggest that the WTO procedures of the Uruguay 

Round Agreements place State law “at the mercy of the Executive Branch and the 

Trade Representative.”39 As Professor Tribe himself explains, even if the executive branch decides to bring an action against a State for the purpose of having a 

State law declared invalid for inconsistency with the Uruguay Round Agreements, 

the implementing legislation explicitly precludes the W TO panel’s (or Appellate 

Body’s) report from being considered “binding or otherwise accorded deference”

,5 A greem ent Establishing The W orld Trade O rganization, Annex 2, U nderstanding on Rules and Procedures Governing the Settlem ent of Disputes, Art 17 14, 33 I L M 9, 124 (1994) W e note that voting is 

precluded under the new procedures.

36 Tribe Prepared Statem ent at 303-04 Actually, the Attorney G eneral, not the Trade R epresentative, 

would bring any such suit

37 This is not to say that the Uruguay Round Agreem ents would not provide the President w ith different 

incentives from those that exist under the current GATT arrangem ents. But the point rem ains that even 

under existing arrangem ents, it would require Executive action to forestall a G A TT finding that a State law 

was inconsistent with this country’s com m itm ents under the pact

38 W e note also that the possibility that State laws may be held invalid because they conflict with the 

provisions of G A TT is nothing novel in itself, as discussed above, the courts (including State courts) have 

held that State law cannot be applied if it is inconsistent with the current version of G A TT.

39 T n b e Prepared Statement at 305

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Opinions o f th e Office o f Legal Counsel

by the court that hears the case. S ee S. 2467, § 102(b)(2)(B)(i). Thus, the State 

law cannot be declared invalid by the executive branch acting unilaterally, even if 

the executive is armed with a WTO report that has found the State law GATTillegal; rather, the independent action of another branch of the government — the 

courts — is required.40

Furthermore, given the breadth of the joint authority of Congress and the President in the field of foreign relations, it would be the truly extraordinary case indeed 

in which Presidential action in that area, when supported by an Act of Congress, 

could amount to an unconstitutional invasion of State sovereignty. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring) 

(Presidential power in such cases is “at its maximum”). The Supreme Court has 

held that even unilateral Executive action, relying on the President’s inherent constitutional powers alone, may constitute a “treaty” for purposes of the Supremacy 

Clause, and hence supersede contrary State law. Thus, in U nited States v. Belmont,

301 U.S. 324, 331-32 (1937), the C ourt upheld a unilateral Executive agreement in 

the face of contrary State law, declaring that

complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states. . . . In respect of all 

international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear. As to such purposes 

the State of New York does not exist. Within the field of its powers, whatever the United States rightfully undertakes, it necessarily 

has warrant to consummate.

In U nited States v. Pink, 315 U.S. 203, 233 (1942), the Court, again upholding a 

unilateral Executive agreement over State law, reaffirmed that “[p]ower over external affairs is not shared by the States; it is vested in the national government

40 Professor Tribe acknow ledges that the detailed scheme o f the im plem enting legislation, which is designed to m ake recourse to the courts unlikely, ’‘offers a notew orthy protection to states.” Tribe Prepared 

Statem ent at 305 The im plem enting legislation w ould set up a Federal-State consultation process to keep 

the States inform ed o f Uruguay R ound Agreem ents matters that would affect them. The States are to be 

notified by the United States Trade Representative o f actions by foreign W TO mem bers that might draw 

their law s into the W TO dispute resolution process, consulted regarding the matter, and involved in the 

developm ent o f this c o u n try 's position if the m atter is taken up in the dispute resolution process. Should the 

W TO find a State law to be G A TT-illegal, the T rad e Representative m ust consult with the State concerned in 

an effort to develop a m utually agreed response. See S 2467, § 102(b)(1) In short, the States are to be 

continuously and closely involved w ith the Executive in any m atter that may involve a challenge to State law 

under the Uruguay R ound A greem ents.

The im plem enting legislation provides other im portant protections to State law No plaintiffs other than 

the executive branch m ay challenge a State law for inconsistency with the U ruguay Round A greem ents, and 

in any action it brings, the Executive bears the burden o f proof. B efore bringing any such action, moreover, 

the executive branch m ust report to, and consult with, congressional com m ittees in both Houses See S 

2467, § 102(b)(2). Here again, as in the WTO phase of any challenge to Stale law, the political branches 

m ust take account o f the S tate’s views.

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W hether Uruguay Round Agreements R equired Ratification as a Treaty

exclusively. It need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees.” 

Again, in Zschernig v. M iller, 389 U.S. 429, 432, 434 (1968), the Court struck 

down a State probate statute requiring an inquiry into “the type of governments that 

obtain in particular foreign nations” as “an intrusion by the State into the field of 

foreign affairs which the Constitution entrusts to the President and the Congress.” 

And in Hines v. D avidow itz, 312 U.S. 52, 68 (1941), the Court stated that the field 

of international relations is “the one aspect of our government that from the first 

has been most generally conceded imperatively to demand broad national authority.” See also United States v. California, 332 U.S. 19, 35 (1947) (“peace and 

world commerce are the paramount responsibilities of the nation, rather than an 

individual state”); The Chinese Exclusion Case, 130 U.S. 581, 606 (1889) (“[f]or 

local interests the several States of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one 

power”); Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (the Federal Government 

“has the power to regulate commerce with foreign nations: the responsibility for 

the character of those regulations, and for the manner of their execution, belongs 

solely to the national government. If it be otherwise, a single State can, at her 

pleasure, embroil us in disastrous quarrels with other nations.”); Holmes v. Jennison, 39 U.S. (14 Pet.) at 570 (plurality op.) (“[a]ll the powers which relate to our 

foreign intercourse are confided to the general government”); cf. Banco N acional

de Cuba v. Sabbatino, 376 U.S. 398, 424 (1964) (problems posed by “act of state” 

doctrine implicate foreign relations and thus “are uniquely federal in nature”); 

G oldwater v. Carter, 444 U.S. at 1005, n.2 (Rehnquist, J., concurring in the judgment) (State courts may not “trench upon exclusively federal questions of foreign 

policy”).41

Accordingly, we cannot agree that the powers assigned to the President by the 

Uruguay Round Agreements and their implementing legislation would be unconstitutional (unless the agreement were ratified as a treaty) because they might be 

exercised in a manner that persuaded the courts to rule that State laws were superseded. Against the massive powers of Congress and the President, acting together, 

to control the Nation’s foreign policy and commerce, the claims of State sovereignty have little force.42

41 D ecisions such as these place wholly beyond doubt the “general constitutional principle that, whatever 

the division of foreign policy responsibility within the national governm ent, a ll such responsibility is reposed 

at the national level rather than dispersed am ong the states and localities. . It follows that all state action, 

whether or not consistent with current federal foreign policy, that distorts the allocation of responsibility to 

the national governm ent for the conduct o f American diplom acy is void as an unconstitutional infringem ent 

upon an exclusively federal sphere o f responsibility " Laurence H. T nbe, Am erican C onstitutional Law at 

230.^

42 In the context o f dom estic legislation that assertedly threatens to im pair Stale sovereignty, the C ourt has 

held lhat “Slates must find their protection . . through the national political process.'’ South C arolina v.

Baker, 485 U S 505, 512 (1988) If lhat is the case w hen Congress acts under the Interstate C om m erce 

Clause, the States procedural rights in the national legislature can hardly be more extensive w hen tne Foreign C om m erce C lause is the source of C ongress’s authonty See, e g., Bethlehem Steel Corp v Board o f

245
Opinions o f the Office o f Legal Counsel

III. The World Trade Organization

Professor Tribe has also argued that the Uruguay Round Agreements must be 

ratified as a treaty because its W TO dispute settlement procedures undermines 

State sovereignty directly, rather than by vesting the power to do so in the President. Unfortunately, Professor T ribe’s description of the W TO’s powers, scope 

and functions is mistaken.43 The proposed arrangements for the W TO do not represent an invasion of State sovereignty that can be cured only if the Uruguay 

Round Agreements are ratified as a treaty; rather, the Uruguay Round Agreements 

are similar in kind to earlier, Congressionally-approved trade pacts, including 

NAFTA and the Tokyo Round Codes, that were not, and that did not have to be, 

ratified as treaties.44

In Professor Tribe’s view, the “basic thrust” of the Uruguay Round Agreements 

is “that it would empower international tribunals effectively to override state 

laws.”45 Hence, he argues, approval by two-thirds of the Senators present is required, because “[t]he Senate . . . remains the principal body in which the States 

qua States are represented in our National Government.”46 However, as the court 

has recently found in Public Citizen v. Kantor, 864 F. Supp. 208, 214 (D.D.C. 

1994),

C om m 'rs oj D e p ’t o f W ater & P ow er, 80 Cal Rptr. at 803, 804 (“[t]he California Buy A m erican Act, in 

effectively placing an em bargo on foreign products, am ounts to a usurpation by this state of the power of the 

federal governm ent to conduct foreign trade policy . . . Only the federal governm ent can fix the rules of fair 

com petition w hen such com petition is on an international basis. Foreign trade is properly a subject of national concern, not state regulation. . A state law may not stand ‘as an obstacle to the accom plishm ent and 

execution of the full purposes and objectives o f C ongress.’“) (quoting H ines v D avidow itz, 312 U S at 67).

43 S ee generally Letter for Professor Laurence H T nbe from A m bassador M ichael Kantor, U S Trade 

R epresentative (Oct 14,1994)

44 See, e g , 19 U.S.C § 2503

45 T n b e Letter at 2; see also id. at 3 (an A ct o f Congress im plem enting the Uruguay Round Agreem ents 

would “d e le g a te ] to an international body such as a W TO tnbunal the pow er effectively to override a state 

tax or regulation ’).

46 Id. at 2 W e do not dispute that, at least at the time o f the Framing, the Senate’s role in the treatym aking process was seen as protecting the States, and especially the sm aller States vis-a-vis the larger ones. 

See O L C G A T T M em orandum at 6 n. 11 It is open to question, however, whether the Senate was vested 

with a share in the treaty-m aking pow er only, o r even p nm anly, because o f the ties betw een the Senate and 

the States. The Fram ers appear to have thought that the Senate would function as a kind o f council o f advisers to the President on foreign policy matters, and accordingly stressed charactenstics of the Senate such as 

the sm allness o f its num bers, the relatively long tenure of its mem bers, and the insulation o f Senators from 

the popular electorate, in justifying its role in the treaty-m aking process See The Federalist No. 75 

(A lexander H am ilton); No. 64 (John Jay), see a lso G nffin B. Bell & H M iles Foy, The President, the C ongress, a n d the Panam a C anal An Essay on th e Powers o f the Executive and Legislative Branches in the

Field o f F oreign A ffairs, 16 Ga. J. In t’l & C om p. L at 624-25 In any event, the Senate would not be excluded from the process by w hich the Uruguay R ound A greem ents are approved and im plem ented, on the 

contrary, it is obvious that Senate passage is necessary for the im plem enting legislation to becom e law.

Furtherm ore, “[i]t has never been doubted that representatives in C ongress . represented the entire 

people o f the State acting in their sovereign capacity ” M cP herson v Blacker, 146 U.S 1 ,2 6 (1892) Thus, 

the H ouse, as well as the Senate, provides the States with a forum in which their distinctive interests can be 

protected.

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W hether Uruguay Round A greem ents Required Ratification as a Treaty

the resolution mechanisms contained in the [Uruguay Round] trade 

agreement permit disputes to be settled without altering domestic 

law. If a domestic law is found to violate the agreement, the defending party may implement the decision, negotiate a solution, or 

pay compensation.

Neither the WTO, nor any dispute settlement panels, will have the authority to enter injunctions or impose monetary sanctions against member countries. Nor will 

they be able to order any member country that has a federal system to change its 

component governments’ laws. While a WTO dispute settlement may opine on 

whether a law is inconsistent with a member’s obligations under the Uruguay 

Round Agreements, it is up to the parties to decide how to resolve the situation. 

The complaining country may suspend reciprocal trade concessions if alternative 

forms of settlement — e.g., compensation in the form of additional trade concessions, or a change in the defending country’s domestic law — are not made. The 

suspension of trade concessions by a complaining country is likely to mean a temporary increase in the tariffs it imposes on the defending country’s goods. No suspension of trade concessions can exceed the amount of the trade injury. Because 

our foreign trading partners would be able to increase tariffs on American goods 

even more easily in the absence of a trade agreement, it is hard to see how the attempt in the Uruguay Round Agreements to resolve trade disputes between member countries and to prevent the unilateral imposition of retaliatory tariffs could 

amount to an unconstitutional invasion of State or local sovereignty.47

Professor Tribe objects that it is “no answer that the United States might choose 

to pay whatever fine is levied by the WTO rather than sacrifice the sovereignty of 

one of the fifty States, for that makes each State’s sovereignty a hostage to the Federal Government’s willingness to impose a tax burden on the Nation as a whole. It 

also puts each State in the dilemma of either accepting the tax burden on its citizens entailed by having the United States pay a WTO fine, or protecting its citizens 

from that burden by lobbying against the fine and urging instead that the offending 

State be brought to heel.”48 Setting apart the factual error of assuming that the 

WTO has the power to “lev[y]” a “fine,” Professor Tribe’s argument buries the 

critical point that it is only the United States, not the WTO, that would wield the 

power to limit or displace State law.49 Even if United States participation in the

47 W e have explained in some detail how the W TO procedure works in the OLC G A T T M em orandum , at 

7-8 Furtherm ore, NAFTA, like the Uruguay R ound Agreem ents, built in the possibility that State law s and 

regulations m ight be challenged before international panels in dispute resolution proceedings for inconsistency with the United Staies’s obligations under the trade pact, and that a com plaining country that prevailed 

before a panel was entitled to suspend trade concessions See id at 2 In light o f lhat history, we fail to 

understand how Professor T nbe would distinguish the Uruguay Round Agreem ents from N AFTA or the 

United States-C anada Free Trade Agreement.

48 T nbe Letter at 2.

49 Such displacem ent of State law, if accom plished by the legal action of the Federal G overnm ent, would 

require either an A ct of Congress, or in the alternative a judicial decision in a law suit brought by the execu247
Opinions o f th e Office o f Legal Counsel

W TO’s dispute resolution procedure might create incentives that would otherwise 

not exist to set aside some State laws, Congress can certainly structure the range of 

its future choices in a way that tends to have that effect.50 There is in such a decision no “meaningful shift of control over state sovereignty to foreign tribunals.”51

Conclusion

W e remain persuaded that, in deciding not to submit the Uruguay Round 

Agreements to the Senate for the concurrence of two-thirds of the Senators present, 

the President is acting in a wholly proper and constitutional manner. Like other 

recent trade agreements, including NAFTA, the United States-Canada Free Trade 

Agreement, the United States-Israel Free Trade Agreement and the Tokyo Round 

Agreement, the Uruguay Round Agreements may constitutionally be executed by 

the President and approved and implemented by Act of Congress.

W ALTER DELLINGER 

Assistant Attorney G eneral

Office o f Legal Counsel

tive branch. In either case, State law would norm ally be superseded only if two branches o f the national 

governm ent (the President and C ongress, or the President and the Federal courts) acted together.

50 T his is true even assum ing that “[u]nder the Uruguay R ound, a new dynam ic would characterize relations betw een slates and foreign nations and betw een states and the federal g o v ern m en t” Tribe Prepared 

Statem ent at 307.

51 T n b e L etter at 2.

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