b'Whether Uruguay Round Agreements Required\nRatification as a Treaty\n\nThe U ruguay R o u n d A greem ents concluded under the auspices of the General A greem ent on Tariffs\nand T rad e did not require ratification by the Senate as a treaty, but could constitutionally be ex e\xc2\xad\ncuted by the P resid en t and approved and im plem ented by A ct of C ongress\n\nN ovem ber 22, 1994\n\nM e m o r a n d u m O p in io n f o r t h e\nU 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\n\nThis m em orandum supplements our earlier opinion on the question whether the\nUruguay Round A greem ents concluded under the auspices of the General Agree\xc2\xad\nment on Tariffs and Trade (the \xe2\x80\x9cG A T T \xe2\x80\x9d) must be ratified as a treaty.1 It replies to\ntwo later papers by Professor Laurence H. Tribe, and his testimony before the Sen\xc2\xad\nate Com m ittee on Com m erce, Science, and Transportation, that have disputed our\nconclusion on that subject.2 After considering Professor Tribe\xe2\x80\x99s arguments, we\nagain conclude that the Uruguay Round Agreements may constitutionally be\nadopted by the passage o f implementing legislation by both Houses of Congress,\ntogether with signing by the President.\n\nI. The Treaty Clause\nProfessor Tribe argues that there exists, for constitutional purposes, \xe2\x80\x9ca discrete\nsubset o f international agreements properly categorized as treaties.\xe2\x80\x9d3 Professor\n\n1 S e e M em o ran d u m fo r A m b assad o r M ichael K antor, U S T rad e R epresentative, from W alter D ellinger,\nA ssistan t A tto rn ey G en eral, O ffice o f Legal C o u n sel, R e m W hether the G A T T U ruguay R o u n d M ust be R a ti\xc2\xad\nfie d a s a T rea ty (July 29, 1994) (the \xe2\x80\x9cOLC G A T T M em o ran d u m \xe2\x80\x9d ). The G A T T originated in 1947 See 61\nSlat. A -3 , T I.A S N o. 1700 \xe2\x80\x9c Essentially the G A T T is now a g ro u p o f som e 200 treaties consisting o f very\ncom plex am en d m en ts, side co d es, special ag reem en ts and so on \xe2\x80\x9d W hat\'s N ee d e d f o r the G A T T A fte r the\nU rugua y R o u n d 9, R em arks by Jo h n H Jackson, 1992 Proc A m . S o c \'y In t\xe2\x80\x99l L 69, 71. In 1979, C ongress\napproved fo u rteen trade ag reem en ts on matters ran g in g from antidum ping and governm eni procurem ent to a\nbilateral trade ag re em en t w ith H ungary See 19 U .S .C . \xc2\xa7 2503. T he U ruguay Round A greem ents include\nsu ccesso r a g re em en ts to m any o f these prior tra d e agreem ents\n2 S e e L e tte r for the P resident from Professor Laurence H. T n b e (Sept 12, 1994) (the \xe2\x80\x9cT n b e L etter\xe2\x80\x9d ),\nM em oran d u m fo r W alter D ellinger, Abner J M ik v a, G eorge J. M itchell and R obert Dole, from L aurence H.\nT n b e , R e The C o n stitu tio n a l R equirem ent oj S u b m ittin g the U ru g uay R ound as a Treaty (O ct. 5, 1994) (the\n\xe2\x80\x9cT n b e G A T T M em o ran d u m \xe2\x80\x9d ), S. 2467, G A T T Im p lem en tin g Legislation. H earings B efore the Senate\nC om m on C o m m erce, S cien ce, a n d T ransportation, 103d C ong (1 994) (P repared Statem ent o f Laurence H\nT n b e , P ro fesso r, H arv ard U n iv ersity Law S ch o o l) (the \xe2\x80\x9cT n b e Prepared Statem ent\xe2\x80\x9d ) The b u lk o f the T n b e\nG A T T M em o ran d u m , an d parts o f the Tnbe P rep ared Statem ent, are devoted to criticizing the view s o f\nProfessors B ruce A ck erm an and D avid G olove in their L etter to the President (Sept 21, 1994), and in a\nforthcom in g book. W e take no position in the d isp u te am ong Professors T n b e , A ckerm an and G olove\n3 T rib e G A T T M em o ran d u m at 2.\n\n232\n\n\x0cW hether U ruguay R ound A greem ents R equired R atification as a Treaty\n\nTribe \xe2\x80\x9creadily adm it[s],\xe2\x80\x9d however, \xe2\x80\x9cthat the Constitution itself provides little guid\xc2\xad\nance about the content of this category.\xe2\x80\x9d4 He also concedes that \xe2\x80\x9c [t]he Supreme\nCourt has never addressed directly the constitutionality of using the congressionalexecutive agreement to deal with matters that fall within the C onstitution\xe2\x80\x99s \xe2\x80\x98treaty\xe2\x80\x99\ncategory.\xe2\x80\x9d5 Nor does he attempt \xe2\x80\x9cto construct any sort of general test for deter\xc2\xad\nmining whether any given agreement should be considered a treaty.\xe2\x80\x9d6 Despite that,\nProfessor Tribe insists that \xe2\x80\x9c[the Uruguay Round] warrants the high level o f delib\xc2\xad\neration and consensus that the formal requirements of the Treaty Clause guaran\xc2\xad\ntee.\xe2\x80\x9d7\nLike Professor Tribe, we find that neither the text of the Constitution, nor the\nmaterials surrounding its drafting and ratification, nor subsequent Supreme Court\ncase law interpreting it, provide clear-cut tests for deciding when an international\nagreement must be regarded as a \xe2\x80\x9ctreaty\xe2\x80\x9d in the constitutional sense, and submitted\nto the Senate for its \xe2\x80\x9cAdvice and Consent\xe2\x80\x9d under the Treaty Clause, U.S. Const,\nart. II, \xc2\xa7 2, cl. 2.8 In such circumstances, a significant guide to the interpretation of\nthe Constitution\xe2\x80\x99s requirements is the practical construction placed on it by the\nexecutive and legislative branches acting together. See, e.g., The P ocket Veto\nCase, 279 U.S. 655, 689-90 (1929) (\xe2\x80\x9c[l]ong settled and established practice is a\nconsideration of great weight in a proper interpretation of constitutional provisions\no f this character. Com pare . . . State v. South N orwalk, 11 Conn. 257, 264\n[(1904)], in which the court said that a practice o f at least twenty years duration \xe2\x80\x98on\nthe part of the executive department, acquiesced in by the legislative department,\nwhile not absolutely binding on the judicial department, is entitled to great regard\nin determining the true construction of a constitutional provision the phraseology\nof which is in any respect of doubtful m eaning.\xe2\x80\x99\xe2\x80\x9d); Youngstown Sheet & Tube Co.\n4 Id at 17\n5 Id at 12\n6 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\ndefining the boundary betw een treaties and other international agreem ents . . . \xe2\x80\x99").\n7 T n b e G A T T M em orandum at 20, see also T n b e Prepared Statem ent at 310\n8 Professor T ribe has invented his ow n five-part test for concluding that the U ruguay Round A greem ents\nm ust be considered a treaty in the constitutional sense See T n b e G A T T M em orandum at 19-20; see also\nT ribe Prepared Statem ent at 310 (fo u r-facto r test) T he suggested c n te n a m ight provide useful guidelines to\nexecutive branch policym akers in deciding w hether to subm it an international agreem ent to the Senate for its\nconcurrence rather than to C ongress as a w hole, but we see no reason to thm k that Professor T rib e \xe2\x80\x99s tests are\nconstitu tio n a lly com pelled (Further, Professor T rib e \'s application o f his ow n tests rests on erroneous a s\xc2\xad\nsum ptions about the pow ers o f the W orld Trade O rganization and the effects o f the U ruguay R ound A gree\xc2\xad\nm ents. See Part III below )\nProfessor T ribe also notes that the State D epartm ent has its ow n longstanding guidelines fo r advising\npolicym akers w hen to co n sid er an international agreem ent to be a treaty requiring S enate concurrence. See\nT ribe G A TT M em orandum at 18-19 (citing State D e p \'t C ircu lar 175 (D ec 13, 1955), as am ended, 1 1 F o r\xc2\xad\neign A ffairs M anual, ch. 700, \xc2\xa7 721 3) By Professor T n b e \xe2\x80\x99s ow n show ing, how ever, the application o f these\nguidelines to the U ruguay R ound A greem ents is inconclusive, even accepting Professor T n b e \xe2\x80\x99s analysis,\nonly four o f the eight factors on the State D ep artm en t\xe2\x80\x99s list support the view that Senate concurrence should\nbe obtained for the U ruguay Round A greem ents T ribe G A TT M em orandum at 18. M oreover, the State\nD epartm ent\xe2\x80\x99s guidelines are not intended to be constitutional tests determ ining w hether or not an in te rn a \xc2\xad\ntional agreem ent m ust be ratified as a treaty, but rather to articulate the p o lic y considerations that the e x e c u \xc2\xad\ntive branch should follow m deciding w hat procedures to follow w ith regard to such agreem ents\n\n233\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nv. S a w yer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring) (\xe2\x80\x9cThe Constitu\xc2\xad\ntion is a fram ew ork for government. Therefore the way the framework has consis\xc2\xad\ntently operated fairly establishes that it has operated according to its true nature.\xe2\x80\x9d).\nIndeed, the Court has been particularly willing to rely on the practical statesman\xc2\xad\nship o f the political branches when considering constitutional questions that in\xc2\xad\nvolve foreign relations. See, e.g., U nited S tates v. Verdugo-U rquidez, 494 U.S.\n259, 273 (1990); D am es & M oore v. Regan, 453 U.S. 654, 686 (1981); see also\nHarold H. Koh, The N ational S ecu rity C onstitution 70-71 (1990) (historical\nprecedent serves as \xe2\x80\x9cquasi-constitutional custom \xe2\x80\x9d in foreign affairs); Griffin B.\nBell & H. M iles Foy, The President, the Congress, an d the Panam a Canal: An\nE ssay on the P o w ers o f the Executive an d L egislative Branches in the F ield o f\nF oreign Affairs, 16 Ga. J. Int\xe2\x80\x99l & Comp. L. 607, 640-41 (1986); Gerhard Casper,\nC on stitutional C on straints on the C onduct o f Foreign a n d D efense P olicy:\nA\nN on ju dicial M odel, 43 U. Chi. L. Rev. 463, 478 (1976).\n\nSuch practical construction has long established (and Professor Tribe acknowl\xc2\xad\nedges) that \xe2\x80\x9cthere are m any classes o f agreements with foreign countries which are\nnot required to be form ulated as treaties\xe2\x80\x9d for constitutional purposes.9 M ost perti\xc2\xad\nnently here, practice under the Constitution has established that the United States\ncan assum e m ajor international trade obligations such as those found in the Uru\xc2\xad\nguay Round A greem ents when they are negotiated by the President and approved\nand implem ented by A ct o f Congress pursuant to procedures such as those set forth\nin 19 U.S.C. \xc2\xa7\xc2\xa7 2902 & 2903.10 In following these procedures, Congress acts un\xc2\xad\nder its broad Foreign Commerce C lause pow ers," and the President acts pursuant\nto his constitutional responsibility for conducting the N ation\xe2\x80\x99s foreign affairs.12\nThe use o f these procedures, in which both political branches deploy sweeping\nconstitutional powers, fully satisfies the C onstitution\xe2\x80\x99s requirements; the Treaty\nC lause\xe2\x80\x99s provision for concurrence by two-thirds o f the Senators present is not\nconstitutionally mandatory for international agreements of this kind.13\n9 V alidity o f C o m m ercia l A v ia tio n A greem ents, 40 O p A tt\xe2\x80\x99y G en. 451, 452 (1946), see also U nited States\nv. C u rtiss -W n g h t E xport C orp., 2 9 9 U S 304, 3 1 8 (1936), T n b e G A T T M em orandum at 2-3\n10 F o r a su rv ey o f the v a n o u s statutory re g im e s relating to international trade agreem ents in the penod\nfrom 1930 o n w ard s, see H arold H. Koh, C o n g ressio n a l C o n tro ls on P residential Trade P olicym aking A fter\nI N .S. v C hadha, 18 N .Y .U J In t\xe2\x80\x99l L. & Pol. 1191, 1192-1208 (1986). O n C ongressional-E xecutive agree\xc2\xad\nm ents gen erally , see K enneth C. R andall, The T re a ty P ow er, 51 O h io St L J. 1089, 1093-96 (1990).\n11 S e e U S. C o n st art. I, \xc2\xa7 8, cl. 3; Barclays B a n k P L C v. F ra n ch ise Tax Bd. o f C alifornia, 512 U S 298,\n329 (1 9 9 4 ), C a lifo rn ia B a n k e rs A s s \xe2\x80\x99n v. S c h u ltz, 416 U S . 21, 59 (1974). T he T reaty C lause should not be\ninterpreted to cu rtail C o n g re ss\'s pow er under th e Foreign C o m m erce C lause See D ow nes v B idw ell, 182\nU .S. 244, 313 (1 9 0 1 ) (W hite, J , jo in ed by S h ira s and M cK en n a, JJ , co n cu rn n g ), id. at 370 (Fuller, C.J.,\njo in e d by H arlan, B rew er and Peckham , J J , d issenting).\n12 See, e g , D ep a rtm en t o f N a v y v Egan, 4 8 4 U.S 518, 529 (1 9 8 8) (S uprem e C ourt has \xe2\x80\x9crecognized \xe2\x80\x98the\ngen erally accep ted view th at foreign policy w a s the province and responsibility o f the E xecutive \xe2\x80\x9d * (quoting\nH aig v. A g ee, 4 5 3 U .S. 280, 29 3 -9 4 (1981)), A lfr e d D u n h ill o f London, Inc. v. R epublic o f C uba, 4 25 U S\n682, 70 5 -0 6 n 18 (1 9 7 6 ) (\xe2\x80\x9c the co n d u ct of [fo reig n policy] is co m m itted p n m a n ly to the Executive B ranch\xe2\x80\x9d);\nU nited S ta te s v Lo u isia n a , 363 U .S. 1, 35 (1 9 6 0 ) (P resid en t is \xe2\x80\x9cthe constitutional representative o f the\nU nited States in its d ealin g s w ith foreign n atio n s.\xe2\x80\x9d ).\nn A lth o u g h w e insist on the v an ety o f leg al instrum ents by w hich the U nited States may m ake agree\xc2\xad\nm ents w ith fo reig n nations, w e do not dispute P ro fesso r T n b e \xe2\x80\x99s view that som e such agreem ents m ay have to\n\n234\n\n\x0cW hether U ruguay Round A greem ents R equired Ratification as a Treaty\n\nProfessor Tribe recognizes the existence of these decades-old practices, which\nhave resulted in the approval o f such fundamental trade pacts as the North Am eri\xc2\xad\ncan Free Trade Agreem ent (the \xe2\x80\x9cNAFTA\xe2\x80\x9d).14 But he disparages the use o f Con\xc2\xad\ngressional-Executive agreements as merely a matter of \xe2\x80\x9cpolitical leaders\xe2\x80\x99 casual\napproach to the Constitution.\xe2\x80\x9d 15 This dismissive characterization gives virtually no\nweight to the considered constitutional judgm ents of the political branches.16 We\nbelieve that that approach is mistaken. Disagreements and uncertainties surround\xc2\xad\ning the scope o f the Treaty Clause \xe2\x80\x94 including its interaction with Congress\xe2\x80\x99s\npower to regulate commerce \xe2\x80\x94 are two centuries old. See below . Congress\xe2\x80\x99s For\xc2\xad\neign Commerce Clause authority and the President\xe2\x80\x99s responsibility for foreign af\xc2\xad\nfairs are unquestionably broad. In such circumstances, the political branches can\nfairly conclude \xe2\x80\x94 and have in fact concluded \xe2\x80\x94 that even major trade agreements\nsuch as the Uruguay Round Agreements may be approved and implemented by\nActs o f Congress, rather than ratified as treaties.17 Indeed, Professor Tribe him self\nwrote in 1988 that \xe2\x80\x9cit does appear settled that a hybrid form of international\nagreement \xe2\x80\x94 that in which the President is supported by a Joint Resolution of\nCongress \xe2\x80\x94 is coextensive with the treaty p o w er. Such Congressional-Executive\n\nbe ratified as treaties. T hus, Professor T n b e is incorrect in asserting that we believe th at the treaty ratifica\xc2\xad\ntion process and the ordinary legislative p ro cess are interchangeable See T n b e G A T T M em orandum at 3\nOn the contrary, we explicitly stated that w e w ere not considering that claim See O LC G A T T M em orandum\nat 4-5 n 8 (Indeed, as P rofessor T n b e p oints out, the State D ep artm ent\xe2\x80\x99s guidelines in C ircular 175 them \xc2\xad\nselves attest to the ex ecu tiv e b ra n c h \xe2\x80\x99s view that som e international agreem ents should be co n sid ered to be\ntreaties. See T n b e Prepared Statem ent at 2 98.) M oreover, absolutely nothing in the O L C G A T T M em oran\xc2\xad\ndum im plies that \xe2\x80\x9cthe T reaty C lause is to be read out o f the C onstitution \xe2\x80\x9d T n b e L etter at 3 W hatev er may\nbe true o f other international agreem ents such as the U nited N ations C harter, see T n b e G A T T M em orandum\nat 8, o ur contention is only that trade agreem ents such as the U ruguay Round A greem ents do n o t require\nratification as \xe2\x80\x9ctreaties \xe2\x80\x9d\n14 See T n b e G A T T M em orandum at 7 T he T ribe Prepared Statem ent specifically questions the constitu\xc2\xad\ntionality of tw o earlier free trade agreem ents \xe2\x80\x94 N A FTA and the 1988 Free Trade A greem ent w ith Canada.\nId. at 14 In the earlier T n b e G A T T M em orandum , how ever, Professor T n b e w rote that N A FT A \xe2\x80\x9c is surely\nless sw eeping in its sco p e [than the U ruguay R ound A greem ents] and at m ost show s that the U ruguay Round\nmight represent the second, even if not the first, agreem ent o f its kind that becam e law w ithout S enate ratifi\xc2\xad\ncation \xe2\x80\x9d Id. at 8 In view o f his varying statem ents, we are uncertain o f the status o f existing trade agree\xc2\xad\nm ents \xe2\x80\x94 N A FTA , the C anadian Free Trade A greem ent, the 1979 T okyo Round, and the U nited States-Israel\nFree T rade A greem ent \xe2\x80\x94 on Professor T n b e \xe2\x80\x99s theory\n15 T n b e G A T T M em orandum at 11, see also id at 2 (\xe2\x80\x9cp n o r m anifestations o f a casual attitude tow ard the\nC onstitu tio n \xe2\x80\x99s structural requirem ents are in su fficien t in this context to ju stify abandoning the p recise gu ar\xc2\xad\nantees o f the T reaty C lau se\xe2\x80\x9d ).\n16 Professor T n b e h im self acknow ledges that \xe2\x80\x9c[t]he issue w h eth er m ajor international agreem ents should\nbe subm itted for m a jo n ty approval by C ongress or for su p erm ajo n ty approval by the Senate was the topic of\nfierce debate in the h alls o f C ongress, the p o p u lar press, and the pages o f law review s d u n n g the 1940s.\xe2\x80\x9d\nT nbe G A T T M em orandum at 6 In light o f that vigorous and protracted debate, it is strange that Professor\nT n b e should d ism iss the political b ran ch es\xe2\x80\x99 p ractice as a m ere m atter o f \xe2\x80\x9cpolitical convenience \xe2\x80\x9d Id at 11\n17 If the S enate b eliev ed that this practice trenched on pow ers that belong to it, then it had \xe2\x80\x9c b oth the in\xc2\xad\ncentive to protect its p rero g ativ es and institutional m echanism s to help it do so.\xe2\x80\x9d U nited S tates v M unozFlores, 495 U .S 385, 393 (1 9 9 0 ) The fact that it has not done so \xe2\x80\x9c is relevant to the substantive task of\ninterpretin g \'\xe2\x80\x99 the T reaty C lause Id at 404 n 2 (Stevens, J., c o n cu m n g in ju d g m en t) It is not at all unlikely\nlhat the Senate m ight guard ag ain st perceived encroachm ents on its constitutional prerogatives: as Professor\nT n b e notes, the Senate has in other recent contexts insisted on its claim ed prerogatives under the Treaty\nClause. See T n b e G A T T M em orandum at 3 (V ienna C onvention); see also H arold H Koh, T he N ational\nS ecurity C onstitution at 43 (A nti-B allistic M issile Treaty)\n\n235\n\n\x0cOpinions o f th e Office o f L e g a l C ounsel\n\nagreem ents are the law o f the land, superseding inconsistent state or federal laws.\xe2\x80\x9d\nLaurence H. Tribe, Am erican C on stitutional Law 228 n.18 (2d ed. 1988)\n(em phasis added).\nHistorically, the scope o f the Treaty Clause, and its interplay with other consti\xc2\xad\ntutional clauses, have provoked controversies o f several different kinds. The per\xc2\xad\nsistence o f these controversies (which trace back to the eighteenth century), and the\nnearly com plete absence o f judicial decisions resolving them, underscore the ne\xc2\xad\ncessity of relying on congressional precedent to in terpret the relevant constitutional\nprovisions. N o one could deny that \xe2\x80\x9ccongressional practice alone cannot justify\nabandonm ent o f the Constitution\xe2\x80\x99s structural provisions,\xe2\x80\x9d 18 but it begs the question\nto assum e that the treaty ratification process is structurally required by the Consti\xc2\xad\ntution in cases such as th is.19 Like other \xe2\x80\x9cgreat ordinances of the Constitution,\xe2\x80\x9d\nthe Treaty Clause \xe2\x80\x9cdo[es] not establish and divide fields of black and w hite.\xe2\x80\x9d\nS p rin ger v. G overnm en t o f the P h ilippin e Isla n d s , 277 U.S. 189, 209 (1928)\n(Holm es, J., joined by Brandeis, J., dissenting).\nOne recurring kind o f dispute over the Treaty Clause has been whether interna\xc2\xad\ntional agreem ents could be given effect by Executive action alone, or whether they\nrequired subm ission to the Senate fo r its concurrence. See, e.g., 2 M essages an d\nP a p ers o f the P residen ts 33 (James D. Richardson ed., 1896) (President M onroe\xe2\x80\x99s\nmessage to the Senate o f April 6, 1818, expressing uncertainty whether the Execu\xc2\xad\ntive alone could make an international agreem ent for the naval disarmament of the\nGreat Lakes, or w hether Senate advice and consent was required).20 A second type\n\n18 T rib e P rep ared S tatem en t at 299\n19 P ro fe sso r T rib e \'s rep eated invocation in th is connection o f IN S v C h a d h a , 462 U S 919 (1983), w hich\nin v alid ated th e o n e-H o u se \xe2\x80\x9cleg islativ e veto,\xe2\x80\x9d is n o t to the point See, e g , T rib e Prepared Statem ent at 299300, T rib e G A T T M em o ran d u m at 10-11 First, the Chadha C o u rt found A rticle l \xe2\x80\x99s provisions for bicam eral\npassage o f leg islatio n and its presentm ent to th e President, w hich it held offended by the legislative veto, to\nbe \xe2\x80\x9c [e ]x p licit an d u n a m b ig u o u s \xe2\x80\x9d 4 6 2 U S at 9 4 5 . T h at can n o t b e said of the Treaty C lause, w hose m eaning\nand sco p e h ave long b een found lo be highly in d eterm in ate. S eco n d , the E xecutive, albeit not invariably, had\nlong taken the p osition that the legislative veto v iolated sep aratio n o f pow ers principles. See id. a t 969-74\n(W hite, J., d isse n tin g ); see also R eprogram m ing\xe2\x80\x94 Legislative C om m ittee O bjection , 1 O p O .L .C 133, 135\n(1977) (In d eed , the Senate Ju d iciary C om m ittee, after careful historical study, reached a sim ilar conclusion\nSee S R ep. N o 5 4 -1 3 3 5 , at 8 (1 8 9 7 ).) By c o n tra st, the practice o f subm itting m ajor trade pacts as C o n g re s\xc2\xad\nsio n al-E x ecu tiv e ag reem en ts has obviously re q u ire d the ap p ro v al o f the S enate \xe2\x80\x94 the constitutional actor\nw hose p re ro g a tiv e s P ro fesso r T n b e asserts have been jeo p ard ized Finally, C hadha certainly does not im ply\nthat the lo n g stan d in g p ractices o f the political b ran ch es are irre le v a n t to the interpretation o f the C on stitu \xc2\xad\ntion\nW e a lso n o te th a t w h ile it is generally true th a t leg islativ e p recedent is m ost persuasive when it can be\ntraced b a ck to the N a tio n \xe2\x80\x99s fo u n d in g , se e T n b e G A T T M em o ran d u m at 10, T n b e Prepared Statem ent at 299,\nthe C o u rt\xe2\x80\x99s c ase law on the su b ject is in fact m o re com plex than Professor T rib e indicates Even early legis\xc2\xad\nlative d e cisio n s m ay h av e v io lated the C onstitution, see, e g., N e w York T im es Co v Sullivan, 376 U S. 254,\n276 (1 9 6 4 ) (S ed itio n A ct o f 1798 violated F irst A m endm ent). O n the o th e r hand, in U nited States v M id \xc2\xad\nw est O il C o., 236 U .S. 4 5 9 (1915), the C ourt u p held an 8 0 -y e a r old Presidential practice o f tem porarily\nw ithdraw in g public lands from e n try despite the absence o f any ex p ress grant o f authority for the practice It\nstated that \xe2\x80\x9c in d e term in in g the m eaning of a sta tu te o r the e x isten c e o f a pow er, w eight shall be given to the\nusage its e lf \xe2\x80\x94 even w hen the v alid ity o f the p ra c tic e is the su b ject o f investigation.\xe2\x80\x9d Id at 473\nP resid e n t M o n ro e \xe2\x80\x99s un certain ty over the sco p e and m eaning o f the T reaty C lause is particularly strik \xc2\xad\ning, g iv en th at he h im se lf had sp o k en to the T re a ty C lause in the V irginia R atifying C onvention See 9 The\n\n236\n\n\x0cW hether Uruguay R ound A greem ents R equired R atification as a Treaty\n\nof recurring dispute, more pertinent here, centered on the respective powers o f the\nSenate and the House of Representatives in such areas as the regulation of foreign\ntrade, where different clauses of the Constitution assign responsibilities either to\none House alone or to both Houses together. As Secretary of State Dulles ex\xc2\xad\nplained in testimony before the Senate Judiciary Committee in 1953, there is an\nundefined, and probably undefinable, borderline between interna\xc2\xad\ntional agreements which require two-thirds Senate Concurrence, but\nno House concurrence, as in the case of treaties, and agreements\nwhich should have the majority concurrence of both Chambers of\nCongress. . . . This is an area to be dealt with by friendly coopera\xc2\xad\ntion between the three departments of Government which are in\xc2\xad\nvolved, rather than by attempts at constitutional definition, which\nare futile, or by the absorption, by one branch of Government, of re\xc2\xad\nsponsibilities which are presently and properly shared.\nTreaties an d Executive A greem ents: H earings Before a Subcomm. o f the Senate\nComm, on the Judiciary, 83d Cong. 828 (1953).\n\nIntra-branch disputes over the Treaty Clause can be traced as far back as 1796,\nwhen Representative Albert Gallatin argued that the \xe2\x80\x9c[t]reaty-making pow er . . .\nmay be considered as clashing\xe2\x80\x9d with Congress\xe2\x80\x99s \xe2\x80\x9cauthority of regulating trade,\xe2\x80\x9d\nand that \xe2\x80\x9c[a] difference of opinion may exist as to the proper construction o f the\nseveral articles o f the Constitution, so as to reconcile those apparently contradic\xc2\xad\ntory provisions.\xe2\x80\x9d 5 Annals of Cong. 437 (1796); see a lso id. at 466-74 (arguing\nthat Foreign Commerce Clause limits Treaty Clause); Note, U nited States P a rtic i\xc2\xad\npation in the G eneral A greem ent on Tariffs a n d Trade, 61 Colum. L. Rev. 505,\n511 (1961); contrast Tribe Letter at 3 (Treaty Clause limits Foreign Com m erce\nClause).\nAgain, in 1844, the Senate Foreign Relations Committee, under Senator Rufus\nChoate, presented a report on the Prussian and Germanic Confederation Treaty, in\nwhich the Committee urged rejection o f the treaty because \xe2\x80\x9cthe legislature is the\ndepartment o f government by which commerce should be regulated and laws of\nrevenue be passed. The Constitution, in terms, communicates the power to regu\xc2\xad\nlate commerce and to impose duties to that department. It communicates it, in\nterms, to no other. W ithout engaging at all in an examination of the extent, limits,\nand objects o f the power to make treaties, the committee believe that the general\nrule of our system is indisputably that the control of trade and the function o f tax\xc2\xad\ning belong, without abridgement or participation, to Congress.\xe2\x80\x9d C om pilation o f\nReports o f the Senate C om m ittee on Foreign Relations, 1 7 8 9 -1 9 0 1 , S. Doc. No.\n56-231, pt. 8, at 36 (2d Sess. 1901).\nD o c u m e n to r/ H isto ry o f the R a tifica tio n o f the C onstitution 1115 (John P. K am inski, G aspare J S aladino, et\nal eds., 1990), 10 id. ai 1235 (1993).\n\n237\n\n\x0cOpinions o f th e Office o f L eg a l C ounsel\n\nFrom tim e to time, the House o f Representatives has also insisted that a treaty\nbe m ade dependent on the consent o f both Houses of Congress. This has occurred\nwhen, for exam ple, the H ouse\xe2\x80\x99s pow er over appropriations has been at issue, as in\nthe G adsden purchase treaty of 1853 and the Alaskan purchase treaty of 1867.21 In\n1880, the H ouse asserted that the negotiation of a commercial treaty that fixed du\xc2\xad\nties on foreign im ports would be an unconstitutional invasion of its prerogatives\nover the origination o f revenues; in 1883, it demanded, in connection with a pro\xc2\xad\nposed com m ercial treaty with M exico, to have a voice in treaties affecting reve\xc2\xad\nnue.22\nIn 1898, the U nited States annexed Hawaii by joint resolution, Joint Res. 55,\n55th Cong., 30 Stat. 750 (1898), even though the Senate had previously rejected an\nannexation treaty, and even though opponents o f the measure argued strenuously\nboth in Congress and in the press that such an annexation could be accomplished\nonly by treaty, and not by a simple legislative act.23\nM ore recently, the court in E dw ards v. C arter, 580 F.2d 1055 (D.C. Cir.) (per\ncuriam ), cert, d en ie d , 436 U.S. 907 (1978), rejected the claim by members of the\nHouse of Representatives that the treaty power could not be used to transfer the\nPanam a Canal to Panama. The plaintiffs relied on the Constitution\xe2\x80\x99s Property\nClause, U.S. Const, art. IV, \xc2\xa7 3, cl. 2, which commits to \xe2\x80\x9c[t]he Congress\xe2\x80\x9d the\npower \xe2\x80\x9cto dispose o f and make all needful Rules and Regulations respecting the\nTerritory or other Property belonging to the United States.\xe2\x80\x9d The court answered\nthis claim by pointing out that\n[t]he grant o f authority to C ongress under the property clause states\nthat \xe2\x80\x9cThe Congress shall have Power . .\nnot that only the Con\xc2\xad\ngress shall have power, or that the Congress shall have exclusive\npower. In this respect the property clause is parallel to Article I,\n\xc2\xa7 8, which also states that \xe2\x80\x9cT he Congress shall have Power . . . .\xe2\x80\x9d\nM any o f the pow ers thereafter enum erated in \xc2\xa7 8 involve matters\nthat were at the time the Constitution was adopted, and that are at\nthe present time, also commonly the subject of treaties. The most\nprom inent exam ple of this is the regulation of commerce with for\xc2\xad\neign nations, Art. [I], \xc2\xa7 8, cl. 3, and appellants do not go so far\'as to\ncontend that the treaty process is not a constitutionally allowable\nmeans for regulating foreign commerce. It thus seems to us that, on\nits face, the property clause is intended not to restrict the scope of\nthe treaty clause, but, rather, is intended to permit Congress to ac\xc2\xad\n\n21 See L ouis Fisher, C o n stitu tio n a l C onjhcts b etw een C o n g ress a n d the P resident 2 26 (3d ed 1991)\n^ Id a t 227\n21 S e e M em o ran d u m for A braham D S o faer, Legal A dviser, D epartm ent o f Slate, from D ouglas W\nK m iec, A ctin g A ssistan t A ttorney General, O ffic e o f Legal C ounsel, Re. L egal Issues R aised bx P roposed\nP re sid e n tia l P ro cla m a tio n to E x te n d the T e rrito ria l Sea, 12 O p O L C 2 3 8 ,2 5 1 -5 2 (1988).\n\n238\n\n\x0cW hether Uruguay R ound A greem ents R equired R atification as a Treaty\n\ncomplish through legislation what may concurrently be accom\xc2\xad\nplished through other means provided in the Constitution.\n580 F.2d at 1057-58. As the court noted, the Constitution on its face permits for\xc2\xad\neign commerce to be regulated either through the Treaty Clause or through the\nForeign Commerce Clause. Nothing in the language of the Constitution privileges\nthe Treaty Clause as the \xe2\x80\x9csole\xe2\x80\x9d or \xe2\x80\x9cexclusive\xe2\x80\x9d means of regulating such activity.24\nIn actual practice, Congress and the President, understanding that nothing in the\nConstitution constrained them to choose one procedure rather than the other, have\nfollowed different procedures on different occasions.25\nIn general, these inter- and intra-branch disputes over the scope of the Treaty\nClause have been resolved through the political process, occasionally with marked\ndepartures from prior practices. See G oldw ater v. C a rter , 444 U.S. 996, 1004 n.l\n(1979) (Rehnquist, J., concurring in judgm ent); John O. M cGinnis, C onstitutional\nR eview by the Executive in Foreign Affairs an d War P ow ers: A C onsequence o f\nRational Choice in the Separation o f P o w e rs , 56 Law & Contemp. Probs. 293,\n\n305-08 (1993). For example, after the House o f Representatives objected to the\nconcentration of power over Indian affairs in the hands of the Senate through the\nTreaty Clause, Congress in 1871 enacted a rider to an Indian appropriation bill\n\n24 A ccordingly, it has been held that a trade agreem ent ex ecu ted by the President pursuant to the R ecipro\xc2\xad\ncal T rade A greem ents Act o f 1934, Pub L. N o 73-316, 4 8 Stat 943, w as a valid exercise o f C o n g re ss\'s\ndelegated Foreign C om m erce C lause pow ers together w ith the P resid en t\xe2\x80\x99s inherent pow ers, and did not\nrequire separate ratification as a treaty, even if com m ercial treaties m ight also have covered the sam e subject\nm atter See S ta r-K ist Foods, Inc v U nited S tates, 275 F 2d 47 2 , 4 83-84 (C C .P.A 1959)\n25 T h e difficulties in attem pting to privilege the A rticle 11 treaty ratification process ov er the pow ers c o n \xc2\xad\nferred by A rticle I on C ongress as a whole can be illustrated from Professor T n b e \xe2\x80\x99s ow n discussions o f the\nw ar pow ers. Professor Tribe has recently jo in ed several o th er professors o f law in arguing that \xe2\x80\x9c the totality\no f C o n g ress\xe2\x80\x99s A rticle I, \xc2\xa7 8 pow ers reserves to C ongress a lo n e the prerogative and duty to authorize in itia\xc2\xad\ntion o f h o s tilitie s \xe2\x80\x9d L etter for W alter D ellinger, A ssistant A ttorney G eneral, from Professor L aurence H.\nT n b e and others, at 3 (n d ; fax received O cto b er 14, 1994) (em phasis added). O n that assum ption, the\nexistence o f a mutual defense treaty betw een the U nited States and an ally, duly ratified by the Senate, would\nbe legally insufficient, in the absence o f further bicam eral action by C ongress, to ju stify engagem ent in hos\xc2\xad\ntilities. Yet Professor Tribe has w ritten elsew here that \xe2\x80\x9c [cjollective defense treaties have becom e the w ay of\nm ilitary life in this century T hese treaties, ratified by the President pursuant to the consent o f the Senate,\ngenerally com m it the U nited States to com e to the aid o f any signatory lhat is m ilitarily attacked. W hether\nthese treaties can serve as a predicate for executive deploym ent o f m ilitary force has not been resolved. It\nseem s unlikely that, in the absence o f a declaration o f w ar by C ongress, a prolonged m ilitary operation would\nbe san ctio n ed by such a treaty Even if the treaty is, in a sense, an inchoate declaration of w ar, it is one\nform ulated by the treatym akers \xe2\x80\x94 that is, the President and the Senate \xe2\x80\x94 not by the C ongress as the C o n \xc2\xad\nstitution dem ands M ore plausible, how ever, is the suggestion that a collective defense treaty ju stifie s p re si\xc2\xad\ndential use o f force in support o f a harried ally until C ongress has had am ple time to determ ine w hether it\nfavors A m erican m ilitary involvem ent m the co n flict.\xe2\x80\x9d Laurence H. T ribe, Am erican C o n stitutional L aw at\n233-34 (footnotes om itted)\nO ur point is not that there may be an inconsistency b etw een the bald claim that A rticle I reserves to C o n \xc2\xad\ngress alone the pow er to authorize the initiation o f hostilities, and the m ore nuanced view that a m utual\ndefense treaty can suffice to authorize interim m ilitary action on b eh alf o f an ally (In fact, the positions\nm ight be reconciled ) Rather, we cite these w ritings only to sh o w that a constitutional scholar as serious and\nthoughtful as Professor T ribe may experience difficulty m saying precisely when the Article 1 pow ers of\nC ongress overlap w ith, when they oust, and w hen they are o u sted by, the S en a te \xe2\x80\x99s treaty pow er under A rticle\nII\n\n239\n\n\x0cOpinions o f th e Office o f L eg a l C ounsel\n\ndeclaring that no fresh treaties were to be made with the Indian nations. Act of\nMar. 3, 1871, ch. 120, 16 Stat. 544, 566. Although the United States had been\nmaking Indian treaties for almost a century before that enactment, see U nited\nS tates v. K a g a m a , 118 U.S. 375, 382 (1886), after 1871 \xe2\x80\x9cthe federal government\ncontinued to m ake agreements with Indian tribes, many similar to treaties, that\nwere approved by both Senate and H ouse,\xe2\x80\x9d but \xe2\x80\x9cthe H ouse\xe2\x80\x99s action sounded the\ndeath knell for treaty m aking.\xe2\x80\x9d Felix S. Cohen, H andbook o f F ederal Indian L aw\n107 & n.370 (1982 ed.). The policy o f the 1871 enactment remains in effect. See\n25 U.S.C. \xc2\xa7 71. W e are uncertain whether this longstanding legislation would be\nconstitutional by Professor Tribe\xe2\x80\x99s lights.26\nT he existence o f such recurring disputes over the scope and meaning of the\nTreaty Clause underm ines any dogmatic claim that a major trade agreement such as\nthe U ruguay Round Agreements, w hich stands at the intersection of the foreign\naffairs, revenue raising and commerce powers, m ust be ratified as a treaty and can \xc2\xad\nnot be im plem ented by the action o f both Houses of Congress. The distinctions\nbetween the Federal governm ent\xe2\x80\x99s treaty power and the other constitutional powers\nin play are sim ply too fluid and dynam ic to dictate the conclusion that one method\nmust be follow ed to the complete exclusion of the other. Here, if anywhere, is an\narea where the sound judgm ent of th e political branches, acting in concert and ac\xc2\xad\ncom m odating the interests and prerogatives of one another, should be respected. It\nis simply mistaken to suggest that this established practice of mutual adjustment\nand cooperation on a constitutional question of inherent uncertainty27 reflects mere\n\xe2\x80\x9cpolitical convenience rather than constitutional commitment.\xe2\x80\x9d Tribe Prepared\nStatem ent at 300. None o f the three political branches involved in working out the\nprocedure for Congressional-Executive agreements has abdicated its constitutional\nresponsibility; none has endangered the basic, structural provisions of Articles I\nand II.\nFinally, Professor T rib e\xe2\x80\x99s newly-crafted account of the treaty power entails that\nthe Federal G overnm ent may diminish State sovereignty by employing the Treaty\nClause to ratify an international agreement, but not by using any other constitu-\n\n26 In terestin g ly , in a footnote in his treatise, P ro fesso r T ribe w rites that \xe2\x80\x9c the pow er o f C ongress to regulate\ncom m erce w ith Indian trib es has b een rendered partly superfluous by the Suprem e C o u rt\xe2\x80\x99s extension o f the\ntreaty po w er to en co m p ass federal treaties w ith Indian tribes " L aurence H Tribe, A m erican C onstitutional\nLaw at 305 n. 1 T h is d escrip tio n indicates th a t Professor T rib e believes (correctly, in our view ) that the\nIndian C o m m erce C lau se and the Treaty C lause overlap, and that either m ay be used as a source o f legal\nauthority for the Federal G o v e rn m e n t\xe2\x80\x99s dealings w ith the Indian tribes If so, then the T reaty C lause and the\nForeign C om m erce C lau se o u g h t equally to p ro v id e sources o f authority for the U nited S ta te s\xe2\x80\x99s regulation o f\nc om m erce w ith foreign nations\n27 It has long been reco g n ized that Article II confers the treaty pow er \xe2\x80\x9c in general term s, w ithout any d e \xc2\xad\nscription o f the o b jects in ten d ed to be em braced by it.\xe2\x80\x99\xe2\x80\x99 H o lm es v Jennison, 39 U S . (14 P e t) 540, 569\n(1840) (p lu rality op ) M ore generally, \'\xe2\x80\x98[o]ne can n o t read the C onstitution w ithout being struck by its as\xc2\xad\ntonishing b rev ity reg ard in g the allocation of fo reig n affairs a u th o rity am ong the branches .\n[T]he d o cu \xc2\xad\nm ent g ran ts clearly related pow ers to separate institutions, w ith o u t ever specifying the relationship betw een\nthose po w ers, as fo r ex am p le, w ith C ongress\xe2\x80\x99s pow er to d eclare w ar and the presid en t\xe2\x80\x99s pow er as com m a n d e r-in -c h ie f." H arold H. K oh, T he N ational S ecu rity C o n stitu tion at 67\n\n240\n\n\x0cW hether U ruguay Round A greem ents R equired R atification as a Treaty\n\ntional procedure for giving such an agreement effect. Basic to Professor T ribe\xe2\x80\x99s\nanalysis is the assumption that som e \xe2\x80\x9cset of intrusions on state sovereignty is suffi\xc2\xad\nciently grave to trigger the requirements of the Treaty Clause.\xe2\x80\x9d Tribe Prepared\nStatement at 307. On this view, the Federal Government is not constitutionally\nprohibited from curtailing State sovereignty to a certain degree, but it may not ac\xc2\xad\ncomplish such a curtailment by the ordinary Article I process of legislation. We\nfind that conclusion odd and unconvincing. If the Federal Government may not\ntrespass on State sovereignty beyond certain limits, then the attempt to do so by\nmaking a treaty would not remove the constitutional infirmity: it is by now wellestablished that treaties may not violate basic constitutional ordinances, including\nthe principles of federalism. See, e.g., R eid v. C overt, 354 U.S. 1 (1957); see also\nLaurence H. Tribe, Am erican C onstitutional Law at 228. On the other hand, if it\ndoes lie within the Federal G overnm ent\xe2\x80\x99s power to curtail State sovereignty under\nan international agreement, we see no reason why the Government may not invoke\nArticle I procedures for giving effect to that agreement.28 In short, if the Uruguay\nRound Agreements unduly invade State sovereignty, ratification as a treaty will not\nsave them from u n c o n s titu tio n a l; if they are not an undue invasion, they can be\ngiven effect by Act of Congress.\n\nII. The Uruguay Round Agreements and Presidential Power\nIn considering Professor Tribe\xe2\x80\x99s critique of the Uruguay Round Agreements \xe2\x80\x94\nwhich focuses on the asserted impairment that the agreement causes to State sover\xc2\xad\neignty29\xe2\x80\x94 it should be borne in mind that judicial decisions have treated G A TT as\neffectively a \xe2\x80\x9cTreat[y],\xe2\x80\x9d and hence \xe2\x80\x9csupreme Law,\xe2\x80\x9d within the meaning o f the Su\xc2\xad\npremacy Clause, U.S. Const, art. VI, \xc2\xa7 2, and have held provisions of State law to\nbe superseded by the GATT when in conflict with it.30 It is also important to re28\nW e do not think that M issouri v. H o lla n d , 252 U S 4 1 6 (1920), establishes the contrary Language\nfrom Justice H o lm e s\xe2\x80\x99s opinion in that case has been taken to im ply that treaties m ight lim it Slate sovereignty\nin w ays that A cts o f C ongress could not Id at 433. B ui the C o u rt\xe2\x80\x99s la te r ju risp ru d en ce has undercut any\nsuch su pposition. As Professor T ribe has w ritten, \xe2\x80\x9cM is s o u n v H o lland\nview s the treaty pow er as a\ndelegation o f authority to federal treaty-m akers independent o f the delegations em bodied in the enum eration\no f C o n g ress\xe2\x80\x99 ow n pow ers. The decision thus sanctions a legal regim e w herein certain subjects m ay be exclu\xc2\xad\nsively w ithin the am bit o f the states w iih respect to dom estic legislation, b u t not w ith respect to international\nagreem ents an d law s enacted by C ongress pursuant thereto\nThe im portance o f treaties as independent\nsources o f co n g ressio n al pow er has waned substantially in the years since M is s o u n v H olland, how ever, the\nSuprem e C ourt m the intervening period has so broadened the scope o f Congress* c o n stitutionally enum er\xc2\xad\nated pow ers as to provide a m p le basis f o r m o st im aginable legislative e nactm ents q u ite apart fr o m the treaty\npow er.\xe2\x80\x9d L aurence H. T n b e, A m erica n C o n stitu tio n a l L aw at 227 (em phasis added)\n?9 See, e g , T n b e Prepared Statem ent at 302.\n30\nSee In ter-M a ritim e F o n va rd in g Co. v U nited States, 192 F Supp 6 3 1 ,6 3 7 (C u st Ct 1961), B aldw inLim a-H anulton Corp. v S u p erio r C ourt, 208 C al A pp.2d 803, 819-20, 25 C al Rptr. 798 (1962), Territory\'\nv. Ho, 41 H aw 565, 568 (1957), see also B ethlehem S teel C orp v B oa rd o f C o m m \xe2\x80\x99rs o f D e p \xe2\x80\x99t o f W ater &\nPow er, 276 C al A pp 2d 221, 80 Cal R ptr 800, 804 n 9 (1 9 6 9 ) (finding it unnecessary \xe2\x80\x98\xe2\x80\x98to delv e into an\nextensive an aly sis o f the effect o f G A T T \xe2\x80\x9d on State law because federal po w er to conduct foreign trade policy\n\xe2\x80\x9cis exclusive in this Field\'*), K S B Tech. Sales Corp. v N orth Jersey D ist W ater S u p p ly Comm \xe2\x80\x99n, 3 8 1 A .2d\n774, 778 (N J 1977) (\xe2\x80\x9d\xe2\x80\x98[t]he legal significance o f G A T T has been considered by all parties as equivalent to\n\n241\n\n\x0cOpinions o f th e O ffice o f L eg a l Counsel\n\nm em ber that the existing GATT arrangem ents include dispute resolution proce\xc2\xad\ndures, w hich often involve referring disputes to panels of individuals, who act in an\nindividual and not a governmental capacity.31 Professor Tribe does not contend\nthat the existing version o f GATT o r the dispute resolution procedures that have\ndeveloped under it are unconstitutional as applied to the Federal or State govern\xc2\xad\nments o f this country; rather, he alleges that \xe2\x80\x9c[t]he Uruguay Round\xe2\x80\x99s establishment\no f the W orld Trade Organization [the WTO] and its dispute resolution mechanisms\nrepresents a [constitutionally] significant departure from prior versions of\nG A TT .\xe2\x80\x9d32 Specifically, Professor T ribe objects that if the W TO \xe2\x80\x99s dispute settle\xc2\xad\nment body (or an A ppellate Body on appeal) w ere \xe2\x80\x9cto find a United States law\n\xe2\x80\x98G A TT-illegal,\xe2\x80\x99 the United States w ould be bound by that decision unless it could\npersuade the entire G A TT m em bership by consensus to overturn the adverse deci\xc2\xad\nsion. . . . U nlike other W TO decisions under the Uruguay Round, dispute panel\ndecisions, or Appellate Body decisions in the instance o f an appealed case, would\nbe final, unless every W TO Member nation agrees to reject the panel or Appellate\nB ody\xe2\x80\x99s recom m endation. . . . This \xe2\x80\x98reverse consensus\xe2\x80\x99 requirement is a 180-degree\nturnaround from prior G A TT practice; it means that individual nations, including\nthe United States, no longer maintain a de facto veto over GATT dispute panel\ndecisions. This turnaround . . . is alone sufficient to distinguish the Uruguay\nRound\xe2\x80\x99s potential effects on state sovereignty from the effects o f all previous\nG ATT agreem ents.\xe2\x80\x9d33\nU nder existing G A TT practice, \xe2\x80\x9cthe Contracting Parties, acting jointly as a\nwhole, have jurisdiction over the final disposition of the dispute procedure.\xe2\x80\x9d34\nAlthough decisions on adoption of panel reports have always been m ade by con\xc2\xad\nsensus, the existing G A TT permits a vote on these matters. Thus, while the United\nStates, in practice, can exercise a \xe2\x80\x9c veto\xe2\x80\x9d over any adverse panel decision, this\ncould be changed under existing G A T T rules. The Uruguay Round Agreements\nthat o f a treaty . . In the co n te x t o f this litigation we do lik e w ise \xe2\x80\x9d ), appeal dism issed, 4 35 U .S. 982 (1978);\nD elta C hem . C o rp v. O cean C o u n ty Utils A u th ., 554 A .2d 1381, 1384 ( N J 1988) (G A T T exception ap \xc2\xad\nplied to sew e ra g e facilities p roducts purchased b y county), a f f d in part a n d r e v \xe2\x80\x99d in p a rt, 594 A 2d 1343\n(N .J 1991); A rm stro n g v. Ta xa tio n D iv D irector, 5 N J Tax 117, 133 (1983) (\xe2\x80\x9c[ajssum ing that the states\nare boun d by the pro v isio n s o f G A T T , im position o f the New Jersey sales and use tax on sales o f gold coins\nand go ld and s ilv e r b u llio n does not discrim inate against sales o f products o f a signatory nation\xe2\x80\x9d), a f f d , 6\nN.J. T ax 4 4 7 (1 9 8 4 ), 4 0 C al A tt\xe2\x80\x99y G en 65 (1 9 6 2 ), 36 Cal. A tt\'y G en 147, 1 4 9 (1 9 6 0 ); 34 C al. A tt\xe2\x80\x99y G en.\n302, 30 4 -0 5 (1 9 5 9 ), h u t s e e A m e rica n Inst fo r Im p o r te d Steel, Inc. v. C ounty o f Erie, 58 M isc 2d 1059, 297\nN Y S 2d 602, 607 (1 9 6 8 ) (certain G A TT p ro v isio n s did not a p p ea r \xe2\x80\x9cin and o f them selves [to] supersede\nlocal leg islatio n "), r e v \xe2\x80\x99d, 32 A .D .2d 231, 302 N .Y .S .2 d 61 (N .Y A D . 1969). S e e g enerally John H Jackson,\nThe G e n era l A g r e e m e n t on Tariffs a n d Trade in U n ited States D o m estic Law , 66 M ich L R ev 249, 280-89\n(1967) (G A T T has d o m estic legal effect in the U n ite d States in so fa r as it is P residentially proclaim ed), id at\n297-311 (G A T T is d irectly a p p licab le to state a n d local go v ern m ents in the U nited States and supersedes\ncon flictin g state o r local law )\n31 Se e Jo h n H. Jack so n , G A T T a s an In stru m en t f o r the S e ttle m en t o f T rade D isputes, 1967 Proc. Am.\nS o c \xe2\x80\x99y In t\xe2\x80\x99l L. 144, 147-48, 151.\n32 T n b e P rep ared S tatem en t at 302\n33 Id. a t 30 3 -0 4 .\n34 Joh n H Jack so n , G A T T a s an Instrum ent f o r the S e ttlem en t o f Trade D isputes, 1967 Proc A m S o c \xe2\x80\x99y\nIntT L. at 149\n\n242\n\n\x0cW hether U ruguay R ound A greem ents R equired R atification as a T reaty\n\nwould alter this procedure by making the panel\xe2\x80\x99s or Appellate B ody\xe2\x80\x99s report final\nunless the W TO States \xe2\x80\x9cdecide[] by consensus not to adopt the [panel or] Appel\xc2\xad\nlate Body report\xe2\x80\x9d within a set period.35 Professor Tribe appears to take this proce\xc2\xad\ndural alteration \xe2\x80\x94 the loss of the d e fa c to \xe2\x80\x9cveto\xe2\x80\x9d \xe2\x80\x94 as constitutionally decisive.\nWhen one asks why that should be so, it appears that his answer is that under the\nnew dispute resolution process, \xe2\x80\x9cstates to a significant degree will be forced to\nplace their fates under the Uruguay Round in the hands o f the Executive Branch,\nwhich may have incentives counter to those of particular states in the context of\nparticular disputes . . . . [T]he Executive Branch, not Congress, . . . would deter\xc2\xad\nmine the fate of state laws found to be in violation of GATT. If a state chose not\nto alter a measure found by the W TO to be GATT-illegal, the United States Trade\nRepresentative could choose to bring an action against the state in a federal court,\nsee S. 2467, 103d Cong., 2d Sess. \xc2\xa7 102(b)(2) (1994) . . . \xe2\x80\x94 even if Congress had\nchosen to allow the state\xe2\x80\x99s measure to remain in effect and to accept trade sanc\xc2\xad\ntions on behalf of the entire nation rather than preempt the offending state law .\xe2\x80\x9d36\nW e do not understand why Professor Tribe finds constitutional significance in\nthe Uruguay Round\xe2\x80\x99s \xe2\x80\x9creverse consensus\xe2\x80\x9d requirement. Under the current version\no f GATT, the States could equally well be said to be \xe2\x80\x9c in the hands of the Execu\xc2\xad\ntive,\xe2\x80\x9d for the simple reason that the President, as the sole constitutional actor who\nmay represent the United States abroad, alone speaks for the United States in the\nGATT organization. Thus, the P resident, through his delegate, possesses the\n\xe2\x80\x9cveto\xe2\x80\x9d over the outcome of a dispute resolution under existing G ATT practice, and\nm ay refuse to exercise it.37 In other words, State laws may, even under the current\nversion of GATT, be finally determined to be \xe2\x80\x9cGATT-illegal\xe2\x80\x9d unless the executive\nbranch takes affirmative action to prevent that result.38\nMoreover, it is misleading to suggest that the W TO procedures of the Uruguay\nRound Agreements place State law \xe2\x80\x9cat the mercy of the Executive Branch and the\nTrade Representative.\xe2\x80\x9d39 As Professor Tribe himself explains, even if the execu\xc2\xad\ntive branch decides to bring an action against a State for the purpose o f having a\nState law declared invalid for inconsistency with the Uruguay Round Agreements,\nthe implementing legislation explicitly precludes the W TO panel\xe2\x80\x99s (or Appellate\nB ody\xe2\x80\x99s) report from being considered \xe2\x80\x9cbinding or otherwise accorded deference\xe2\x80\x9d\n,5 A greem ent Establishing The W orld T rad e O rganization, Annex 2, U nderstanding on Rules and Procedures G overning the S ettlem ent o f D isputes, Art 17 14, 33 I L M 9, 124 (1994) W e note that voting is\nprecluded under the new procedures.\n36 T ribe Prepared Statem ent at 303-04 A ctually, the A ttorney G eneral, not the Trade R epresentative,\nwould bring any such suit\n37 T his is not to say that the U ruguay R ound A greem ents w ould not provide the President w ith different\nincentives from those that exist under the current G A TT arrangem ents. But the point rem ains that even\nunder existing arrangem ents, it w ould require Executive action to forestall a G A T T finding that a State law\nwas inconsistent w ith this c o u n try \xe2\x80\x99s com m itm ents under the pact\n38 W e note also that the possibility that State laws may be held invalid because they con flict w ith the\nprovisions o f G A T T is nothing novel in itself, as discussed above, the courts (including State co u rts) have\nheld that State law cannot be applied if it is inconsistent w ith the current version o f G A T T .\n39 T n b e Prepared Statem ent at 305\n\n243\n\n\x0cO pinions o f th e O ffice o f L eg a l C ounsel\n\nby the court that hears the case. S ee S. 2467, \xc2\xa7 102(b)(2)(B)(i). Thus, the State\nlaw cannot be declared invalid by the executive branch acting unilaterally, even if\nthe executive is armed with a W TO report that has found the State law GATTillegal; rather, the independent action of another branch o f the government \xe2\x80\x94 the\ncourts \xe2\x80\x94 is required.40\nFurtherm ore, given the breadth o f the joint authority o f Congress and the Presi\xc2\xad\ndent in the field o f foreign relations, it would be the truly extraordinary case indeed\nin which Presidential action in that area, when supported by an Act of Congress,\ncould am ount to an unconstitutional invasion o f State sovereignty. See Young\xc2\xad\nstow n Sheet & Tube Co. v. S aw yer, 343 U.S. at 635 (Jackson, J., concurring)\n(Presidential pow er in such cases is \xe2\x80\x9cat its m axim um \xe2\x80\x9d). The Supreme Court has\nheld that even u nilateral Executive action, relying on the President\xe2\x80\x99s inherent con\xc2\xad\nstitutional pow ers alone, may constitute a \xe2\x80\x9ctreaty\xe2\x80\x9d for purposes of the Supremacy\nClause, and hence supersede contrary State law. Thus, in U nited S tates v. Belmont,\n301 U.S. 324, 331-32 (1937), the C ourt upheld a unilateral Executive agreement in\nthe face o f contrary State law, declaring that\ncom plete pow er over international affairs is in the national govern\xc2\xad\nm ent and is not and cannot be subject to any curtailment or interfer\xc2\xad\nence on the part o f the several states. . . .\nIn respect o f all\ninternational negotiations and compacts, and in respect of our for\xc2\xad\neign relations generally, state lines disappear. As to such purposes\nthe State of New York does not exist. W ithin the field of its pow\xc2\xad\ners, whatever the United States rightfully undertakes, it necessarily\nhas warrant to consummate.\nIn U nited S tates v. Pink, 315 U.S. 203, 233 (1942), the Court, again upholding a\nunilateral Executive agreem ent over State law, reaffirmed that \xe2\x80\x9c[p]ower over ex\xc2\xad\nternal affairs is not shared by the States; it is vested in the national government\n40\nP ro fesso r T rib e ack n o w led g es that the d e ta iled schem e o f the im plem enting legislation, which is designed to m ake recourse to the c o u rts unlikely, \xe2\x80\x99\xe2\x80\x98o ffers a notew o rthy protection to states.\xe2\x80\x9d T ribe Prepared\nS tatem en t at 305 T he im plem en tin g legislation w o u ld set up a F ederal-S tate consultation process to keep\nthe States inform ed o f U ruguay R ound A greem ents m atters th at w ould affect them . T he States are to be\nnotified by the U nited States T rad e R epresentative o f actions b y foreign W T O m em bers that m ight draw\ntheir law s into the W T O dispute resolution p ro c e ss, consulted regarding the m atter, and involved in the\ndevelo p m en t o f this c o u n try \'s p o sitio n if the m a tte r is taken up in the dispute resolution process. Should the\nW TO find a S tate law to be G A T T -illegal, the T ra d e R epresentative m ust c onsult w ith the State concerned in\nan effort to d ev elo p a m utually ag reed response. See S 2467, \xc2\xa7 102(b)(1) In short, the States are to be\ncontinuo u sly and clo sely in v o lv ed w ith the E xecutive in any m atter that may involve a challenge to State law\nunder the U ruguay R ound A greem ents.\nT he im p lem en tin g legislation provides other im p o rtan t p ro tectio ns to State law No plaintiffs other than\nthe execu tiv e b ran ch m ay ch allen g e a State law fo r inconsistency w ith the U ruguay R ound A greem ents, and\nin any action it brin g s, the Executive bears the b u rd e n o f proof. B efore bringing any such action, m oreover,\nthe e xecu tiv e b ranch m ust rep o rt to, and consult w ith, co n g ressio nal com m ittees in both H ouses Se e S\n2467, \xc2\xa7 102(b)(2). H ere again, as in the WTO p h a se o f any ch allenge to Stale law, the political branches\nm ust tak e acco u n t o f the S ta te \xe2\x80\x99s view s.\n\n244\n\n\x0cW hether U ruguay R ound A greem ents R equired R atification as a T reaty\n\nexclusively. It need not be so exercised as to conform to state laws or state poli\xc2\xad\ncies, whether they be expressed in constitutions, statutes, or judicial decrees.\xe2\x80\x9d\nAgain, in Zschernig v. M iller , 389 U.S. 429, 432, 434 (1968), the C ourt struck\ndown a State probate statute requiring an inquiry into \xe2\x80\x9cthe type of governm ents that\nobtain in particular foreign nations\xe2\x80\x9d as \xe2\x80\x9can intrusion by the State into the field of\nforeign affairs which the Constitution entrusts to the President and the C ongress.\xe2\x80\x9d\nAnd in Hines v. D avidow itz, 312 U.S. 52, 68 (1941), the Court stated that the field\nof international relations is \xe2\x80\x9cthe one aspect o f our government that from the first\nhas been most generally conceded imperatively to demand broad national author\xc2\xad\nity.\xe2\x80\x9d See also U nited States v. California, 332 U.S. 19, 35 (1947) (\xe2\x80\x9cpeace and\nworld commerce are the paramount responsibilities of the nation, rather than an\nindividual state\xe2\x80\x9d ); The Chinese Exclusion Case, 130 U.S. 581, 606 (1889) (\xe2\x80\x9c[f]or\nlocal interests the several States of the Union exist, but for national purposes, em \xc2\xad\nbracing our relations with foreign nations, we are but one people, one nation, one\npower\xe2\x80\x9d); Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (the Federal Government\n\xe2\x80\x9chas the power to regulate commerce with foreign nations: the responsibility for\nthe character o f those regulations, and for the manner o f their execution, belongs\nsolely to the national government. If it be otherwise, a single State can, at her\npleasure, embroil us in disastrous quarrels with other nations.\xe2\x80\x9d); H olm es v. Jennison, 39 U.S. (14 Pet.) at 570 (plurality op.) (\xe2\x80\x9c[a]ll the powers which relate to our\nforeign intercourse are confided to the general governm ent\xe2\x80\x9d); cf. Banco N acional\nde Cuba v. Sabbatino, 376 U.S. 398, 424 (1964) (problems posed by \xe2\x80\x9cact o f state\xe2\x80\x9d\ndoctrine implicate foreign relations and thus \xe2\x80\x9care uniquely federal in nature\xe2\x80\x9d);\nG oldw ater v. Carter, 444 U.S. at 1005, n.2 (Rehnquist, J., concurring in the judg\xc2\xad\nment) (State courts may not \xe2\x80\x9ctrench upon exclusively federal questions o f foreign\npolicy\xe2\x80\x9d).41\nAccordingly, we cannot agree that the powers assigned to the President by the\nUruguay Round Agreements and their implementing legislation would be uncon\xc2\xad\nstitutional (unless the agreement were ratified as a treaty) because they m ight be\nexercised in a manner that persuaded the courts to rule that State laws were super\xc2\xad\nseded. Against the massive powers of Congress and the President, acting together,\nto control the N ation\xe2\x80\x99s foreign policy and commerce, the claims of State sover\xc2\xad\neignty have little force.42\n41 D ecisions such as these place w holly beyond doubt the \xe2\x80\x9cgeneral constitutional principle that, w hatever\nthe division o f foreign policy responsibility within the national governm ent, a ll such responsibility is reposed\nat the national level rather than dispersed am ong the states and localities.\n. It follow s that all state action,\nw hether or not consistent w ith current federal foreign policy, that distorts the allocation o f responsibility to\nthe national governm ent for the conduct o f A m erican diplom acy is void as an unconstitutional infringem ent\nupon an exclusively federal sphere o f responsibility " Laurence H. T n b e , A m erican C o n stitu tio n a l Law at\n230.^\n42 In the context o f dom estic legislation that assertedly threatens to im pair Stale sovereignty, the C ourt has\nheld lhat \xe2\x80\x9cSlates m ust find th eir protection . . through the national political pro cess.\'\xe2\x80\x99 South C a rolina v.\nBaker, 485 U S 505, 512 (1988) If lhat is the case w hen C ongress acts under the Interstate C om m erce\nClause, the States procedural rights in the national legislature can hardly be more extensive w hen tne F or\xc2\xad\neign C om m erce C lause is the source o f C o n g ress\xe2\x80\x99s auth o n ty See, e g., B ethlehem S te e l C orp v B o a rd o f\n\n245\n\n\x0cOpinions o f th e O ffice o f L eg a l Counsel\n\nIII. The World Trade Organization\nProfessor Tribe has also argued that the U ruguay Round Agreements must be\nratified as a treaty because its W T O dispute settlement procedures undermines\nState sovereignty d ire c tly , rather than by vesting the power to do so in the Presi\xc2\xad\ndent. U nfortunately, Professor T rib e\xe2\x80\x99s description of the W TO \xe2\x80\x99s powers, scope\nand functions is m istaken.43 The proposed arrangem ents for the W TO do not rep\xc2\xad\nresent an invasion of State sovereignty that can be cured only if the Uruguay\nRound A greem ents are ratified as a treaty; rather, the Uruguay Round Agreements\nare sim ilar in kind to earlier, Congressionally-approved trade pacts, including\nNAFTA and the Tokyo Round Codes, that were not, and that did not have to be,\nratified as treaties.44\nIn Professor T ribe\xe2\x80\x99s view, the \xe2\x80\x9cbasic thrust\xe2\x80\x9d o f the Uruguay Round Agreements\nis \xe2\x80\x9cthat it would em pow er international tribunals effectively to override state\nlaws.\xe2\x80\x9d45 Hence, he argues, approval by tw o-thirds of the Senators present is re\xc2\xad\nquired, because \xe2\x80\x9c[t]he Senate . . . rem ains the principal body in which the States\nqua States are represented in our N ational G overnm ent.\xe2\x80\x9d46 However, as the court\nhas recently found in P u blic Citizen v. Kantor, 864 F. Supp. 208, 214 (D.D.C.\n1994),\n\nC o m m \'rs o j D e p \xe2\x80\x99t o f W ater & P o w er, 80 C al R ptr. at 803, 804 (\xe2\x80\x9c [t]he C alifornia Buy A m erican Act, in\neffectively p lacing an em b arg o on foreign p ro d u cts, am ounts to a usurpation by this state of the pow er o f the\nfederal g o v ern m en t to co n d u ct fo reig n trade p o lic y . . . O nly the federal governm ent can fix the rules o f fair\nco m p etitio n w hen su ch co m p etitio n is on an in tern atio n al basis. Foreign trade is properly a subject o f na\xc2\xad\ntional c o n ce rn , not state regulation. . A state la w m ay not stan d \xe2\x80\x98as an obstacle to the accom plishm ent and\nexecution o f the full purposes and objectives o f C o n g re ss.\xe2\x80\x99\xe2\x80\x9c) (q u o tin g H ines v D avidow itz, 312 U S at 67).\n43 S e e g e n era lly L etter for Professor L aurence H T n b e from A m bassador M ichael K antor, U S Trade\nR ep resen tativ e (O ct 1 4 ,1 9 9 4 )\n44 See, e g , 19 U .S.C \xc2\xa7 2503\n45 T n b e L etter at 2; se e a lso id. at 3 (an A c t o f C ongress im plem enting the U ruguay Round A greem ents\nw ould \xe2\x80\x9cd e le g a te ] to an in tern atio n al body such as a W TO tn b u n a l the pow er effectively to override a state\ntax o r reg u latio n \xe2\x80\x99).\n46 Id. at 2 W e do not d isp u te that, at least a t the tim e o f th e Fram ing, the S enate\xe2\x80\x99s role in the treatym aking pro cess was seen as p ro tectin g the S tates, and especially the sm aller States vis-a-vis the larger ones.\nSee O L C G A T T M em o ran d u m at 6 n. 11 It is op en to q u estio n , how ever, w hether the Senate was vested\nw ith a sh are in the treaty -m ak in g pow er only, o r even p n m a n ly , because o f the ties betw een the S enate and\nthe S tates. T he F ram ers ap p ear to have thought that the Senate w ould function as a kind o f council o f advis\xc2\xad\ners to the P resident on foreign p o licy matters, a n d accordingly stressed c haractenstics o f the Senate such as\nthe sm alln ess o f its num bers, the relatively lo n g tenure o f its m em bers, and the insulation o f Senators from\nthe p o p u la r electorate, in ju stify in g its role in the treaty -m ak in g process\nSee The F ederalist No. 75\n(A le x a n d er H am ilton); No. 64 (John Jay), see a ls o G n ffin B. B ell & H M iles Foy, The President, the C on\xc2\xad\ngress, a n d the P a n a m a C a n a l A n Essay on th e Pow ers o f th e E xecutive a n d L egislative B ranches in the\nF ield o f F o reig n A ffa irs, 16 G a. J. In t\xe2\x80\x99l & C o m p . L at 624-25 In any event, the S enate w ould not be ex\xc2\xad\nclu d e d from the process by w hich the U ruguay R ound A greem ents are approved and im plem ented, on the\ncontrary, it is obvious that S enate passage is n e ce ssa ry for the im p lem enting legislation to becom e law.\nF urtherm o re, \xe2\x80\x9c[i]t has n ev er b een doubted th at rep resen tativ es in C ongress\n. represented the entire\npeople o f the State acting in th eir sovereign c a p a c ity \xe2\x80\x9d M cP h erso n v B lacker, 146 U .S 1 ,2 6 (1892) Thus,\nthe H ouse, as w ell as the Senate, provides the S ta te s w ith a forum in w hich their distinctive interests can be\nprotected.\n\n246\n\n\x0cW hether Uruguay R ound A greem ents R equired R atification as a T reaty\n\nthe resolution mechanisms contained in the [Uruguay Round] trade\nagreement permit disputes to be settled without altering domestic\nlaw. If a domestic law is found to violate the agreement, the de\xc2\xad\nfending party may implement the decision, negotiate a solution, or\npay compensation.\nNeither the WTO, nor any dispute settlement panels, will have the authority to en\xc2\xad\nter injunctions or impose monetary sanctions against member countries. N or will\nthey be able to order any m ember country that has a federal system to change its\ncomponent governments\xe2\x80\x99 laws. While a W TO dispute settlement may opine on\nwhether a law is inconsistent with a m em ber\xe2\x80\x99s obligations under the Uruguay\nRound Agreements, it is up to the parties to decide how to resolve the situation.\nThe com plaining country may suspend reciprocal trade concessions if alternative\nforms of settlement \xe2\x80\x94 e.g., compensation in the form o f additional trade conces\xc2\xad\nsions, or a change in the defending country\xe2\x80\x99s domestic law \xe2\x80\x94 are not made. The\nsuspension of trade concessions by a complaining country is likely to mean a tem\xc2\xad\nporary increase in the tariffs it imposes on the defending country\xe2\x80\x99s goods. No sus\xc2\xad\npension o f trade concessions can exceed the amount of the trade injury. Because\nour foreign trading partners would be able to increase tariffs on American goods\neven more easily in the absence of a trade agreement, it is hard to see how the at\xc2\xad\ntempt in the Uruguay Round Agreements to resolve trade disputes between mem \xc2\xad\nber countries and to prevent the unilateral imposition of retaliatory tariffs could\namount to an unconstitutional invasion of State or local sovereignty.47\nProfessor Tribe objects that it is \xe2\x80\x9cno answer that the United States might choose\nto pay whatever fine is levied by the WTO rather than sacrifice the sovereignty of\none of the fifty States, for that makes each State\xe2\x80\x99s sovereignty a hostage to the Fed\xc2\xad\neral G overnm ent\xe2\x80\x99s willingness to impose a tax burden on the Nation as a whole. It\nalso puts each State in the dilem ma of either accepting the tax burden on its citi\xc2\xad\nzens entailed by having the United States pay a W TO fine, or protecting its citizens\nfrom that burden by lobbying against the fine and urging instead that the offending\nState be brought to heel.\xe2\x80\x9d48 Setting apart the factual error of assuming that the\nWTO has the power to \xe2\x80\x9clev[y]\xe2\x80\x9d a \xe2\x80\x9cfine,\xe2\x80\x9d Professor T ribe\xe2\x80\x99s argument buries the\ncritical point that it is only the U nited States, not the WTO, that would wield the\npower to limit or displace State law.49 Even if United States participation in the\n\n47 W e have explained in som e detail how the W TO procedure works in the O LC G A T T M em orandum , at\n7-8 Furtherm ore, N A FTA , like the U ruguay R ound A greem ents, built in the possibility that State law s and\nregulations m ight be challenged before international panels in dispute resolution proceedings fo r in co n sis\xc2\xad\ntency w ith the U nited Staies\xe2\x80\x99s obligations under the trade pact, and that a com plaining country that prevailed\nbefore a panel was entitled to suspend trade co n cessio n s S ee id at 2 In light o f lhat history, w e fail to\nunderstand how Professor T n b e w ould distinguish the U ruguay Round A greem ents from N A FT A or the\nU nited States-C anada Free Trade A greem ent.\n48 T n b e L etter at 2.\n49 Such displacem ent o f S tate law, if accom plished by the legal action o f the Federal G overnm ent, w ould\nrequire eith er an A ct o f C ongress, o r in the alternative a ju d ic ia l decision in a law suit brought by the e x e c u \xc2\xad\n\n247\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nW T O \xe2\x80\x99s dispute resolution procedure might create incentives that would otherwise\nnot exist to set aside some State laws, Congress can certainly structure the range of\nits future choices in a way that tends to have that effect.50 There is in such a deci\xc2\xad\nsion no \xe2\x80\x9cm eaningful shift o f control over state sovereignty to foreign tribunals.\xe2\x80\x9d51\n\nConclusion\nW e rem ain persuaded that, in deciding not to submit the Uruguay Round\nAgreem ents to the Senate for the concurrence o f two-thirds of the Senators present,\nthe President is acting in a wholly proper and constitutional manner. Like other\nrecent trade agreem ents, including NAFTA, the United States-Canada Free Trade\nAgreement, the United States-Israel Free Trade A greement and the Tokyo Round\nA greem ent, the Uruguay Round Agreem ents may constitutionally be executed by\nthe President and approved and implemented by Act of Congress.\n\nW A LTER DELLINGER\nA ssistan t A ttorn ey G en eral\nO ffice o f L egal Counsel\n\ntive branch. In eith e r case, State law would n o rm ally be superseded only if tw o branches o f the national\ngo vernm en t (th e P resid en t and C ongress, or the P resid en t an d th e Federal co u rts) acted together.\n50 T h is is true even assum ing th at \xe2\x80\x9c [u]nder th e U ruguay R ound, a new dynam ic w ould characterize rela\xc2\xad\ntions betw een slates and fo reign nations and b e tw ee n states and the federal g o v e rn m e n t\xe2\x80\x9d Tribe Prepared\nStatem en t at 307.\n51 T n b e L e tte r at 2.\n\n248\n\n\x0c'


b'Intervention by States and Private Groups in the\nInternal Affairs of Another State\nIt would appear to be a violation of international law relating to neutrality if a neutral state permits the\nlaunching of an attack by organized armed forces from within its borders, permits the passage of\norganized armed forces through its territory, or permits armed forces to be organized and trained for\nsuch purpose within its borders.\nThere would appear to be no violation of international law where a neutral state permits the mere\nprovision of arms by private parties, even the stockpiling of arms, as long as they remain within the\ncontrol of private groups rather than belligerent parties, or permits volunteers to be recruited,\nassembled, and perhaps even trained, so long as this does not approach the point of an organized\nmilitary force.\n\nApril 12, 1961\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nI. General Principles\nThe structure of international law has traditionally been viewed as imposing\nobligations upon states only, and not (with very rare exceptions) upon individuals\nor sub-national groups. Therefore international law with respect to intervention in\nthe internal affairs of another state, by force or other means, is designed to set\nstandards for the conduct of states. If the provision of arms, personnel, or other\nassistance by private groups is in violation of international law, it can only be\nbecause a state actively assists such groups\xe2\x80\x94therefore making it state action\xe2\x80\x94or\nfails to take measures required by international law to prevent such activities. It\nshould be said at the outset that there is very little in the way of authority or\nprecedent with regard to the obligations of states to control or prevent such\nactivities within their borders. The prohibitions of national laws relating to\nneutrality in general go much further than international law would seem to require.\nWhat international law and precedent there appears to be on the subject is\nprimarily concerned with the obligations of neutral states in the event of war or\ncivil war abroad where the revolutionary forces have been accorded belligerent\nstatus. Under these circumstances it would appear to be a violation of international\nlaw relating to neutrality if a state permits the launching of an attack by organized\narmed forces from within its borders; permits the passage of organized troops\nthrough its territory; and, it would seem, permits armed forces to be organized and\ntrained for such purpose within its borders. On the other hand, there would appear\nto be no violation of this precedent by the mere provision of arms by private\nparties, even the stockpiling of arms, as long as they remain within the control of\nprivate groups rather than belligerent parties, or by permitting volunteers to be\nrecruited, assembled, and perhaps even trained so long as this did not approach the\npoint of an organized military force.\n\n225\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe foregoing would apply to activities by foreign nationals and equally to\nactivities by one\xe2\x80\x99s own nationals so long as these activities were \xe2\x80\x9cprivate\xe2\x80\x9d and\nthere was no official participation by the state claiming neutrality.\nIt would appear that the foregoing brief description derived from international\nlaw relating to neutrality would be the most severe test possible in a situation\nwhere war had not broken out. That is, it would seem that the obligations of the\nstate to prevent revolutionary activities aimed at the government of a foreign state\nfrom taking place within its borders could not be more than its obligations as a\nneutral in the event hostilities had taken place. Indeed, these obligations may be\nconsiderably less since the state involved is not claiming a formally neutral status\nand since the primary purpose of international law relating to neutrality is to\nprevent the spread of hostilities. Viewed in terms of this overriding objective, a\ngood case could be made for the fact that a state may be more tolerant of activities\nwithin its borders aimed at the overthrow of a foreign government than it could be\nin the event of actual warfare sufficiently extensive to warrant laws of war being\napplied.\nOne or two general comments with regard to the purpose of international law\nmay be useful in this connection. The inherited doctrine from the pre-World War I\nperiod is geared to concepts of independent states within a security structure\nlargely related to neutrality of alignment; that is, the security system which existed\nin the nineteenth century was closely related to the balance of power political\nsystem, which in turn depended upon the absence of long-term, enduring relationships among states. States had to be free to change their alignment any time the\nbalance was threatened, and free to use force whenever the system required it.\nChecks on the use of force were, therefore, political ones rather than legal ones,\nand war was not formally outlawed.\nThe political structure today is vastly different. Alignments within the Communist Bloc and within the West are long-term political alignments with considerable aspects of supra-national authority. As a result, the security system from the\npoint of view of each bloc depends less upon neutrality of alignment than it does\nupon preserving the alignments which exist. Therefore, despite changed legal\ndoctrine, there is considerable pressure for intervention in situations where bloc\nsecurity is threatened. There is nothing in the existing legal structure which\nrecognizes this state of affairs, but there are numerous instances where intervention has been tolerated in the postwar period; for example, Hungary, Guatemala,\nLebanon, and, in 1948, Israel.\nII. Intervention by States\nI think it is a fair reading of international law today that military intervention by\nan individual state is not permissible under the United Nations (\xe2\x80\x9cU.N.\xe2\x80\x9d) Charter\nexcept in the following circumstances:\n\n226\n\n\x0cIntervention by States and Private Groups in the Internal Affairs of Another State\n\n(1) Force may be used in self-defense under Article 51 of the Charter, and may be employed under this Article by states not directly affected as a result of collective security arrangements;\n(2) Intervention may be employed pursuant to an order of the U.N.\nSecurity Council or, more doubtfully, the General Assembly under\nthe Uniting for Peace Resolution, G.A. Res. 377 (V), U.N. GAOR,\n5th Sess., Supp. No. 20, U.N. Doc. A/1775, at 10 (Nov. 3, 1950);\n(3) Intervention may be employed by states collectively under regional arrangements such as the Organization of American States\n(\xe2\x80\x9cOAS\xe2\x80\x9d) where the objective is to restore peace and security to an\narea otherwise threatened;\n(4) A state may legitimately intervene by assisting the government of\nanother state in repressing revolutionary activities if requested by the\nlegitimate government of the state in question to assist. This latter\nidea is the basis for our military aid programs (along with Article 51)\nand for the interventions in Lebanon by the United States and Hungary by the Union of Soviet Socialist Republics (\xe2\x80\x9cUSSR\xe2\x80\x9d). It would\njustify shipment of arms by Russia today to the Castro government\nin Cuba, unless the United States were successfully to persuade the\nOAS or the United Nations that such conduct endangered international peace and security.\nThe foregoing indicates that it is a great deal easier legally to preserve the\nstatus quo than it is to change it. In general, it would seem that U.S. support for\nstrict policies of non-intervention is based upon the fact that it is generally the\nUSSR which is trying to subvert an existing government and the U.S. which is\ntrying to preserve it. Wherever this is the case, the formal legal structure supports\nthe country endeavoring to protect the existing status quo, since military aid and\nassistance are under these circumstances legitimate.\nThe United Nations Charter and the Charter of the Organization of American\nStates forbid only intervention by states. Article 15 of the OAS Charter goes\nsomewhat further than the U.N. Charter since it prohibits intervention \xe2\x80\x9cdirectly or\nindirectly.\xe2\x80\x9d Article 15 reads as follows:\nNo State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of\nany other State. The foregoing principle prohibits not only armed\nforce but also any other form of interference or attempted threat\nagainst the personality of the State or against its political, economic\nand cultural elements.\n\n227\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nOAS Charter, Apr. 30, 1948, T.I.A.S. No. 2361, 2 U.S.T. 2416, 2419\xe2\x80\x9320, 119\nU.N.T.S. 48, 56. The exact meaning of the prohibition with regard to \xe2\x80\x9cindirect\xe2\x80\x9d\nintervention is by no means clear. But it would seem to be aimed at something\nwhich a state did rather than, in most circumstances, something which a state\nfailed to do. It might easily be argued that it is a formal prohibition against a state\nactively assisting revolutionary forces through the provision of weapons, money,\nor government facilities. It is much more questionable that it requires a state\nactively to prohibit revolutionary activities within its borders, though it may do so\nwhen these approach a certain formal status; that is, permitting an armed attack to\nbe mounted within one\xe2\x80\x99s borders.\nIII. Activities of Private Groups\nAs has been indicated above, there is relatively little authority as to the scope of\nstate responsibility for preventing and repressing revolutionary acts of private\npersons against foreign states. The Russians have relied upon this absence of\nauthority repeatedly in the past; for example, the \xe2\x80\x9cvolunteers\xe2\x80\x9d in the Korean\nconflict, and those threatened at the time of the Suez and Lebanon crises. The late\nJudge Lauterpacht summarized the law in 1928 as follows:\nInternational law imposes upon the state the duty of restraining\npersons resident within its territory from engaging in such revolutionary activities against friendly states as amount to organized acts\nof force in the form of hostile expeditions against the territory of\nthose states. It also obliges the state to repress and to discourage activities in which attempts against the life of political opponents are\nregarded as a proper means of revolutionary action.\nApart from this, states are not bound to prohibit, on their territory,\nthe commission of acts injurious to other states.\nH. Lauterpacht, Revolutionary Activities by Private Persons Against Foreign\nStates, 22 Am. J. Int. L. 105, 126 (1928).\nI find relatively little precedent since 1928 which would lead me to question\nLauterpacht\xe2\x80\x99s conclusions. I think these can be justified on quite sound policy\ngrounds. Surely international law does not require a state to restrict private\nactivities in any absolute fashion. Furthermore, the provisions against warfare are\nprimarily aimed at the kind of organized activities which can be only mounted by\na state because these are the kinds of activities which raise serious international\nconsequences and which constitute the greatest danger in the world today. It would\nseem to me that a tolerance in regard to private assistance of revolutionary groups\nraises questions of a quite different order in most circumstances. This is not\nalways the case, because in certain parts of the world, particularly on the East-\n\n228\n\n\x0cIntervention by States and Private Groups in the Internal Affairs of Another State\n\nWest border, even the smallest incident could result in large-scale hostilities. But\nsurely this is not true in areas such as, for example, Latin America.\nFurthermore, in Latin America the United States has gained the acquiescence of\nother Latin American countries in the basic principle that a communist government in the area constitutes a threat to all. While the refusal of other states to act\ncollectively, as provided in the Rio Pact (Inter-American Treaty of Reciprocal\nAssistance, opened for signature Sept. 2, 1947, 62 Stat. 1681), might preclude\nunilateral U.S. activity, it seems to me that the collective adoption of this principle\nwould justify the United States in tolerating activities aimed at an overthrow of the\ncommunist government to a greater degree than would otherwise be the case.\nFinally, our own neutrality laws go much further in preventing private activities\nof the type discussed herein than international law would go. At the same time,\nthese laws are primarily aimed at a highly organized revolutionary force being\nmounted in this country for the purpose of overthrowing a foreign government.\nNICHOLAS deB. KATZENBACH\nAssistant Attorney General\nOffice of Legal Counsel\n\n229\n\n\x0c'