Appointments With Disaster: TheUnconstitutionality Of Binational ArbitralReview Under The United States-Canada FreeTrade Agreement

TABLE OF CONTENTSI. INTRODUCTION--1456II. ARBITRAL REVIEW UNDER THE FTA--1458A. Invoking the Arbitral Review Process--1459B. Selecting Panelists for Arbitral Review--1461C. The Effect of Arbitral Review--1461D. The FTA's Vulnerability to Constitutional Attack--1462III. VIOLATIONS OF ARTICLE III--1463A. A Survey of Article III Case Law--1463B. Redefining Article III Through a Frontal Attack on the FTA-1467C. Removal and Replacement of Judicial Review--1469D. Public Rights and the Removal of Judicial Review--14701. Domestic Trade Protection as a Public Right--14702. Congressional Purposes--14723. Panel Review as the Complete Removal Of Judicial Review--1473E. Panel Review as a Substitute for Judicial Review--14751. The FTA's Surrogate Protections--14762. The Litigants' Consent to a Non-Article III Forum--14763. Protecting the Judiciary from Encroachment--1478F. How the FTA Falls Through a "Gap" in Article III--1479IV. VIOLATIONS OF THE APPOINTMENTS CLAUSE--1479A. Panelists as Officers: Does the Appointments Clause Apply?--1481B. The Process for Appointing Panelists--14831. Canadian Panelists--14832. American Panelists--1483a. The Trade Representative's Role--1484b. The Panelists as Inferior Officers--14873. The Fifth Panelist--1488C. Delegation of Federal Authority to Nonofficers--14891. The Case for Delegation to Private Bodies--14892. Objections to Delegation of Adjudicative Authority--1491a. The Congressional Role: Passive Encroachment--1491b. The Panelists' Role: Unaccountable Private Review--1493D. The Implementation Act's Fallback Provision--1495V. CONCLUSION: THE PITFALLS OF ARBITRAL REVIEW--1496I. INTRODUCTIONThe United States-Canada Free Trade Agreement (FTA)(1) guarantees free trade between the United States and its largest trading partner.(2) In effect since January 1, 1989, the FTA has drawn substantial critical attention.(3) One aspect of the treaty has provoked intense constitutional scrutiny in the United States. The FTA requires binding binational arbitral review of antidumping and countervailing duty orders issued by administrative agencies of each nation. Commentators have almost uniformly concluded that the binational arbitration provisions comply with the United States Constitution.(4)Contrary to the virtual consensus among observers of the FTA, this Article argues that the FTA violates both Article III(5) and the Appointments Clause(6) of the Constitution. This Article does not dispute the benefits of free trade or of international arbitration. Nor does this Article address the merits of the antidumping and countervailing duty laws.(7) Rather, in a belief that economic and political benefits flowing from the FTA should not color constitutional analysis, this Article concludes that the FTA offends the separation of powers. The FTA not only threatens the integrity of the federal judiciary but also undermines the strict procedures for the appointment of officers of the United States. After briefly sketching the FTA's arbitral review provisions, I argue that the FTA violates Article III by deviating from the recognized methods for exerting federal adjudicatory power. I then argue that the FTA's system for the appointment of arbitrators neither complies with the Appointments Clause nor justifies an exception allowing the federal government to delegate its authority to persons who are not officers of the United States.(8)Though a seemingly unlikely subject for a epic constitutional struggle, the FTA provides the ideal subject for what promises to be the battle of Gettysburg in the struggle to define separation of powers.(9) proponents Of a flexible approach to separation of powers have extracted from Morrison v. Olson(10) and Mistretta v. United States(11) the seeds of a separation powers counterrevolution. …