The American Spectator

Editor’s note: Richard Nadler, a veteran advocate of a wide range of conservative causes and former publisher of K.C. Jones, died suddenly at his home Saturday. We mourn his passing but publish with pride his final submission.

It is a rage among certain thinkers, Right and Left, to denigrate trade agreements as an assault on our nation’s sovereignty. Such arguments are doubly dangerous: they distort important economic discussions; and in so doing, trivialize the dangers of international agreements that might actually diminish our sovereignty.

Partisan dyspepsia over foreign trade dates back to the administration of George Washington. The Treaty of Amity, Commerce and Navigation with Great Britain, negotiated by John Jay in 1794, drew howls of protest from supporters of the nascent Democratic-Republican Party. Its leaders faulted the establishment of a transnational commission, appointed in part by the President, in part by the King of England, to resolve outstanding disputes regarding property claims and commercial rights.

Defending the Treaty under the pen-name “Camillus,” Alexander Hamilton observed that sovereignty, far from being impugned, was the principle that underlay the establishment of such tribunals:

To the objection that the article erects a tribunal unknown to the Constitution… the answer is simple and conclusive… Nations acknowledging no common judge on earth, when they are willing to submit the questions between them to judicial decisions, must of necessity constitute a special tribunal for the purpose.

Were such commissions to overstep their boundaries in a ruling, Hamilton noted, “The United States may, though at their peril, refuse compliance.” He defined the “peril” thus: the other party might, in retaliation, withdraw from any or all of its obligations under the agreement.

Some Jeffersonians rejected this defense. When one raw Tennessean entered Congress in 1796, the House was crafting a panegyric to the nation’s retiring hero-President. Incensed at George Washington’s concessions to Great Britain in the Jay Treaty, Andrew Jackson voted against the tribute!

Turnabout is fair play. The idée fixe of the American commercial diplomacy during the first six presidencies was the restoration of our trade with the British West Indies. That trade, the major market for our agricultural and naval exports, had been drastically curtailed by Great Britain following the Revolutionary War. Under the skilled diplomacy of President Andrew Jackson’s Secretary of State, Martin Van Buren, the trade was fully restored in 1830. The terms included the establishment of bi-national panels to adjudicate outstanding claims.

Whig Party partisans promptly accused Jackson and Van Buren of degrading national sovereignty.

Contemporary sovereignty objections to trade agreements are garbed in three forms: That they unconstitutionally avoid the Treaty Clause of the Constitution; that they unconstitutionally delegate Congressional powers to the Executive; and that they enable other nations to impose taxes on American citizens through transnational organizations. Phyllis Schafly, President of the Eagle Forum, has been particularly aggressive in asserting all three of these theories.

Most U.S. trade agreements are congressional-executive agreements. These are not treaties under U.S. law. But they are constitutional, and have been held so in an unbroken series of federal court decisions. The case law extends from 1892, when the McKinley Tariff Act was reviewed (Field v. Clark), through Coalition for Fair Lumber Exports v. U.S. (2006), in which challenges to NAFTA were dismissed.

The rulings have found the constitutional basis for these congressional-executive trade agreements not in the Treaty Clause, but in the commerce powers of Congress, and the foreign policy powers of the Executive — powers that converge in the regulation of international trade.

The delegation of discretionary commercial powers by Congress to the executive within such agreements has its own long and venerable history. Most of that history has favored protectionists. In the decades surrounding 1900, Congress allowed the President unilateral power to raise tariffs upon an executive finding that other nations had taken actions hostile to American products.

Congressional-executive trade agreements are passed as American law, and they can be revoked the same way. In “Why Trade Promotion Authority Is Constitutional,” Edwin Meese III and Todd Gaziano wrote:

Future trade deals would not be unconstitutional, nor would they undermine U.S. sovereignty, if they contained an agreement to submit some disputes to an international tribunal for an initial determination… A ruling by an international tribunal that calls a U.S. law into question would have no domestic effect unless Congress changes the law to comply with the ruling… The fact remains that no international tribunal can overturn any American law. Moreover, Congress may override an entire agreement at any time by a simple statute. Nations may also withdraw from international agreements by executive action alone.