The Appointments Clause And InternationalDispute Settlement Mechanisms: A FalseConflict

The Appointments Clause(1) requires that the President and the Senate each have a role in the selection of senior federal officials. As such, it is an example of the checks and balances that characterizes the U.S. political system in which there is a separation of powers between the various branches of government. The Appointments Clause need not and should not be interpreted to impinge on the power of the United States as a nation to conduct a modern foreign trade policy.In this comment on Mr. Morrison's article,(2) I wish to make essentially three points: First, the dispute settlement provisions of Chapter 19 of the United States-Canada Free Trade Agreement(3) (FTA) do not violate even a strict reading of the Appointments Clause. Second, if a court deemed the constitutionality of the Chapter 19 procedures to be a close question under the Appointments Clause, there is ample precedent for finding them to be constitutional because of their connection with foreign affairs, where the Supreme Court has traditionally been less concerned with separation of powers issues. Finally, upholding these provisions is consistent with and reinforces representative democracy.I. THE APPOINTMENTS CLAUSE AND CHAPTER 19 OF THE FREE TRADE AGREEMENTChapter 19 of the FTA permits a Canadian or U.S. person involved in an antidumping (AD) or countervailing duty (CVD) investigation to challenge a final decision therein by the Commerce Department or the International Trade Commission (or by the comparable Canadian authorities) before a binational panel.(4) Binational panels are composed of five individuals: two from the United States, two from Canada, with the fifth from one or the other.(5) The first two U.S. members are normally selected by the United States Trade Representative (USTR) from a previously established roster of potential candidates, subject to a Canadian right to object to four proposed panel members. The first two Canadian members are analogously chosen. The fifth person is selected by agreement of the USTR and her Canadian counterpart.(6)The panel so selected hears the parties' arguments in the case and decides, based upon the administrative record, whether the challenged determination by the relevant administrative agency was "in accordance with the antidumping or countervailing duty law of the importing country!."(7) The panel's review is intended to replace judicial review of such determinations by U.S. or Canadian courts.(8) Its decision is final and nonappealable.(9)In his article, Mr. Morrison argues two points: 1) the panel members exercis e! significant authority pursuant to the laws of the "United States" and therefore under Supreme Court precedent must be appointed in accordance with the Appointments Clause;(10) and 2) the panelists are not "inferior" officers under the Morrison v. Olson(11) criteria established by the Court and accordingly they must all be appointed by the President and confirmed by the Senate. Even accepting these standards arguendo, Chapter 19's procedures do not violate them.A. PANELS EXERCISE AUTHORITY PURSUANT TO THE PTA, NOT U.S. LAWChapter 19 panels do not "exercis e! significant authority pursuant to the law of the United States." The panel's authority derives exclusively from the Free Trade Agreement itself. It is the FTA, and not U.S. law, that provides when and how panels are to be established, what their functions are, what standard of review they are to apply, the time limits within which they are to complete their tasks and so on.(12) This conclusion is buttressed by a Ninth Circuit case, in which the court ruled that, for purposes of the Appointments Clause, members of a council created by an interstate compact were acting pursuant to the compact, not the federal statute approving the compact, and accordingly were not officers of the United States.(13) The court reached this conclusion even though the federal statute "constrains Council policy-making,. …