Can Buckley Clear Customs

The United States-Canada Free Trade Agreement (FTA)(1) and the North American Free Trade Agreement (NAFTA)(2) provide for panels of international arbitrators to review countervailing duty and antidumping determinations made by American administrators. Because the panels displace judicial review by American federal courts, their use presents two kinds of separation of powers issues. First, must judicial review by Article III judges be retained?(3) Second, must review be performed by "Officers of the United States" who are appointed in conformity with Article II of the Constitution?(4) Alan Morrison's article,(5) focusing only on the second question, concludes that the answer is "yes," because under Buckley v. Valeo,(6) the FTA arbitrators exercise "significant authority pursuant to the laws of the United States," and must therefore be officers of the United States, which they are not. I believe that the two questions cannot be separated in this instance, and that a negative answer to the first also compels a negative answer to the second. Therefore, I conclude that the dispute resolution provisions of the FTA, or the NAFTA, are constitutional.A. THE PURPOSES OF BUCKLEYThe holding of Buckley is that Congress may not grant itself the appointments power for officers engaged in regulation of domestic political campaigns.(7) As the Court pointed out, the Constitution allows the President the Heads of Departments, and the Courts of Law to appoint officers, but leaves out Congress.(8) That the omission was not accidental is confirmed by the Incompatibility and Ineligibility Clauses of Article I, Section 6, which forbid members of Congress to serve simultaneously as executive officers, or to create new or embellished offices and then serve in them.(9) If Congress and the Executive were to be kept in the hands of separate personnel, as the Framers surely intended, it would be almost as important to forbid Congress to appoint executive officers as to forbid it to execute the laws directly.(10)Hence Buckley is that rarity in separation of powers jurisprudence, an easy case. Here, if anywhere, the Court's recent focus on the presence or absence of "aggrandizement(11)--or "encroachment" or "disruption" or whatever pejorative we wish to apply to action that impairs the balance of power among the branches--justifies the conclusion that Congress was trying to usurp one of the President's chief means of controlling the executive branch.(12) The force of the Court's reasoning surely justifies a general principle that Congress may never seize the appointments power itself for domestic administration of the laws.Yet difficulties in assessing Buckley's reach speedily appear. Both executive officers and federal judges are "Officers of the United States" for Appointments Clause purposes. Is there any difference between them for these purposes? If not, administration of the laws could be allocated to either federal judges or executive officers, but not to anyone else, such as international arbitrators. The President, however, has a fundamentally different relationship to the two kinds of "Officers." He enjoys varying degrees of supervisory authority over executives, and none over judges. Buckley was decided in the context of "independent" executive officers, who occupy a twilight zone between maximum presidential authority over the Cabinet, and minimum authority over the judiciary.(13) The members of the Federal Election Commission, like many administrators, performed not only adjudicative functions that presumably could have been assigned to federal judges, but rulemaking and enforcement functions that could not have been assigned to the judiciary. The Court, avoiding the swamp of discussing the extent of permissible presidential supervision over independent agencies, did not say whether its preservation of the President's appointment opportunity was meant to protect his supervisory role over execution as well. For administration in the hands of ordinary executive agencies, the power to appoint officers does carry an implied power to supervise execution. …