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Appointments with Disaster: The Unconstitutionality of Binational Arbitral Review Under the United States-Canada Free Trade Agreement

46 Pages Posted: 3 May 2012  

James Ming Chen

Michigan State University - College of Law

Date Written: May 3, 2012

Abstract

The United States-Canada Free Trade Agreement (FTA) of 1989 guaranteed free trade between the United States and its largest trading partner. One aspect of the treaty 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. This article argues that the FTA violates Article III and the Appointments Clause of the Constitution. 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 appointing officers of the United States. The FTA violates Article III by deviating from the recognized methods for exerting federal adjudicatory power. The FTA's system for the appointment of arbitrators neither complies with the Appointments Clause nor satisfies an exception allowing the federal government to delegate its authority to persons who are not officers of the United States.

Keywords: United States-Canada Free Trade Agreement, FTA, Appointments Clause, trade, commerce

JEL Classification: K2, K33

Suggested Citation

Chen, James Ming, Appointments with Disaster: The Unconstitutionality of Binational Arbitral Review Under the United States-Canada Free Trade Agreement (May 3, 2012). Washington and Lee Law Review, Vol. 49, 1992. Available at SSRN: https://ssrn.com/abstract=2050646

James Ming Chen (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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