Made in the USA Foundation v. United States

*1228 MEMORANDUM OPINION

This cause comes to be heard on a motion to dismiss filed by the defendant on December 21, 1998 and on the respective motions for summary judgment filed by the plaintiffs on March 19, 1999 and by the defendant on April 19, 1999. The parties have acknowledged that there are no genuine issues of fact and that the only issues are issues of law. This court heard recorded oral arguments on May 17, 1999. The parties acknowledged at that hearing that there is no need for any further hearing before this court, evidentiary or otherwise. 1

I. Introduction and Summary of the Parties’ Positions

In 1990 the United States, Mexico and Canada initiated negotiations with the intention of creating a “free trade zone” through the elimination or reduction of tariffs and other barriers to trade. After two years of negotiations, the leaders of the three countries signed the North American Free Trade Agreement (“NAFTA” or the “Agreement”) on December 17, 1992. Congress approved and implemented NAFTA on December 8, 1993 with the passage of NAFTA Implementation Act (“Implementation Act”), 2 which was passed by a vote of 234 to 200 in the House 3 and 61 to 38 in the Senate. 4 The Implementation Act served two purposes, to “approve” NAFTA and to provide a series of laws to “locally” enforce NAFTA’s provisions. 5 The enactment of the Implementation Act brought to a close a lengthy period of rancorous debate over NAFTA. The instant suit seeks to reopen that debate by pulling back NAFTA’s coat and demonstrating that the Agreement and Implementation Act stand on sand rather than on firm Constitutional ground. Brought to bear in this case is an almost century-long bout of Constitutional theorizing about whether the Treaty Clause, contained in Article II, Section 2 of the United States Constitution (the “Treaty Clause”), creates the exclusive means of making certain types of international agreements.

Neither NAFTA nor the Implementation Act were subjected to the procedures outlined in the Treaty Clause. The President purportedly negotiated and concluded NAFTA pursuant to his constitutional responsibility for conducting the foreign affairs of the United States and in accordance with the Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. § 2901, et seq. (“Trade Act of 1988”), and the Trade Act of 1974, 19 U.S.C. § 2101, et seq., (“Trade Act of 1974”), under the so-called “fast track” procedure. Congress then approved and implemented NAFTA by enacting the Implementation Act, allegedly pursuant to its power to legislate in the areas of tariffs and domestic and foreign commerce.

*1229 The plaintiffs contend that this failure to go through the Article II, Section 2, prerequisites renders the Agreement and, apparently, the Implementation Act, unconstitutional. The Government denies this, arguing, first, that this court has no Article III jurisdiction over the instant question because the plaintiffs lack standing to bring this action and also because the plaintiffs’ claims present a non-justiciable political question and, second, that NAFTA and the Implementation Act are not in violation of the Constitution.

The issues have been exceedingly well-briefed and well-argued by both sides. As the Romans might have said, this court is now charged with finding ventas from toto cáelo positions. This court has been supplied with a variety of ingredients from the parties, academic pundits, voices from the past, caselaw extrapolations and other sources from which a judicial chef can create any desired Constitutional pottage. The issues are relatively easy to state, but are more difficult to resolve.

The issues are the following:

(1) Do the individual plaintiffs have standing to bring this action?

(2) Do plaintiffs Made in the U.S.A. Foundation, United Steel Workers of America and Local 12L United Steel Workers have standing to bring this action?

(3) Does the political question doctrine preclude jurisdiction of this court as to all plaintiffs and all claims?

(4) Do NAFTA and the Implementation Act constitute a “treaty” as contemplated by Article II, Section 2 of the Constitution?

(5) Even if NAFTA and the Implementation Act constitute a “treaty” as contemplated by Article II, Section 2 of the Constitution, was the making and implementation of NAFTA authorized under other provisions of the Constitution?

The only certitude established by the parties through their briefs and oral arguments is that there is no certitude with regard to -any of the issues.

Remarkably, in the over two hundred years of this nation, the Supreme Court of the United States has not specifically and definitively decided the principles applicable to issues (4) and (5). I will discuss the issues in the order stated, except that it will not be possible to totally separate the discussion of the principles applicable to the various issues, because the issues are intertwined. There may be some duplication of discussion. I will, however, reach separate conclusions as to these intertwined issues. In my discussion I will summarize and emphasize the arguments of the parties. I am well aware that this court lacks both infallibility and finality and that any decisions I reach will likely be ephemeral. For this reason I wish to give full vent to the parties’ positions as well as reach my own conclusions. Actual quotes from cases, documents, treatises, articles, etc. as stated by the parties are adopted by the court unless otherwise stated.

II. Standing

For the purposes of the standing analysis the plaintiffs can be divided into two distinct groups: (1) the “voter plaintiffs,” consisting of those plaintiffs who have brought claims in their individual capacities and (2) the “institutional plaintiffs,” which include the Made in the USA Foundation, the United Steelworkers of America, and Local 12L United Steel Workers. The Government asserts that both the institutional and voter plaintiffs lack standing to bring them claims. Although the standing arguments differ somewhat with respect to each of the two sets of plaintiffs, the basic principles of the standing analysis, as outlined by the Supreme Court, apply to both.

“While the Constitution of the United States divides all power conferred upon the Federal Government into ‘legislative Powers,’ ‘[t]he executive Power,’ and ‘[t]he *1230 judicial Power,’ it does not attempt to define those terms.” 6 The Constitution clearly “limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies’ ...” 7 The Supreme Court has stated that, “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” 8 As stated in Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), “the case or contro: versy requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.”

“One of the landmarks, setting apart the ‘Cases’ and ‘Controversies’ that are ‘serving] to identify those disputes which are appropriately resolved through the judicial process,’ — is the doctrine of standing.” 9 “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” 10 The Supreme Court’s decision in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), represents, perhaps, the most comprehensive exposition of the standing requirements the Court has provided. In Lujan, the Court noted that the standing analysis requires the examination of three criteria, stating:

... [T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not conjectural’ or ‘hypothetical.’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’

504 U.S. at 560-61, 112 S.Ct. 2130 (citations omitted).

As to the third prong of the standing analysis, the Ninth Circuit has stated that “[T]o have standing, a federal plaintiff must show only that a favorable decision is likely to redress his injury, not that a favorable decision will inevitably redress his injury.” 11 The Supreme Court’s decision in Public Citizen v. Dept. of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989), where the Court found that a declaratory judgment might fulfill the re-dressability requirement even if it does not provide full redress for the plaintiffs’ injuries, appears to support the Ninth Circuit’s position. 12 Nonetheless, the Supreme Court “ha[s] always insisted on strict compliance” with Article III standing requirements, and the standing inquiry *1231 is “especially rigorous” in determining the constitutionality of legislation. 13

Significant in the analysis of any legal doctrine is the placement of the burden of proof and the degree of proof required. In Lujan, the Court discussed the burden of proof applicable to a standing analysis, stating:

The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 608,107 L.Ed.2d 603 (1990); Warth, 422 U.S., at 508, 95 S.Ct., at 2210. Since they are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U.S. 871, 883-889, 110 S.Ct. 3177, 3185-3189, 111 L.Ed.2d 695 (1990); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 114-115, and n. 31, 99 S.Ct. 1601, 1614-1615, and n. 31, 60 L.Ed.2d 66 (1979); Simon, 426 U.S., at 45, n. 25, 96 S.Ct., at 1927, and n. 25; Warth, 422 U.S., at 527, and n. 6, 95

S.Ct., at 2219, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” National Wildlife Federation, 497 U.S., at 889, 110 S.Ct., at 3189.

Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (emphasis added). Thus, for the purposes of this motion, this court will presume that the general allegations made in the plaintiffs’ amended complaint with respect to their alleged injuries are true and that they “embrace those specific facts that are necessary to support the claim.” 14 Nonetheless, this court will remain mindful of the plaintiffs’ responsibility of showing that their claims are properly before this court, as the Supreme Court has warned that it is “the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers,” 15 and that “a federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.” 16

*1232 As noted above, the parties divide their standing arguments into two primary categories: (1) those involving the voter plaintiffs; and (2) those involving the institutional plaintiffs. The court will address each in turn.

A. Voter Standing

The individual plaintiffs contend that they have established standing by alleging that their voting rights were diluted because their Senators’ votes on the approval of NAFTA and its Implementing Act were not given their proper weight. According to Valley Forge Christian College v. Americans United, for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), Article III of the Constitution “requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.’ ” 17 A plaintiff must also show that he “stand[s] to profit in some personal interest” by a judgment in his or her favor. 18 Further, the plaintiff must show that he has been injured in some particularized way, meaning that the plaintiffs “injury must affect the plaintiff in a personal and individual way.” 19 It is “the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.” 20 The basis for standing is established “so long as each person can be said to have suffered a distinct and concrete harm.” 21 However, “[t]he fact that other citizens or groups of citizens might make the same complaint ... does not lessen appellants’ asserted injury 22 and “an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” 23

While the Supreme Court has held that standing exists when a plaintiffs vote has been diluted relative to the votes of other citizens, 24 or when voting districts are distorted in the interest of providing specific groups of voters more or less leverage, 25 the Court has never recognized/addressed the standing of a plaintiff claiming an injury based on the dilution of the vote of his elected representative. However, the voter plaintiffs in this case are asking this court to decide just such an issue. They maintain that their voting rights were harmed because their Senators’ votes against the approval of NAFTA were effectively nullified by the failure of the Senate and the President to comply with the Treaty Clause.

1. Michel v. Anderson

The strongest support for voter plaintiffs’ standing argument comes in the form of the D.C. Circuit’s decision in Michel v. Anderson, 14 F.3d 623 (D.C.Cir.1994). In Michel, the D.C. Circuit held that voters had standing to challenge the constitution *1233 ality of a House rule allowing territorial delegates to vote in the Committee of the Whole, which diluted their representatives’ votes. Citing previous cases in which the Supreme Court held that voters had standing to challenge practices allegedly diluting their vote, the court stated:

[I]n this case the alleged [vote] dilution occurs after the voters’ representative is elected ... [b]ut we do not understand why that should be of any significance. It could not be argued seriously that voters would not have an injury if their congressman was not permitted to vote at all on the House floor.

That all voters in the states suffer this injury, along with the appellants, does not make it an “abstract” one.

14 F.3d at 626. The voter plaintiffs argue that this court should follow the reasoning of the Michel court and determine that they have standing to bring their claims against the Government.

2. Raines v. Byrd; Determining the Applicability and Viability of Michel

According to the Government, the individual plaintiffs’ attempt to assert standing through a two-step “bootstrapping” argument fails due to the lack of a particularized or identifiable injury to the plaintiffs themselves. Further, the Government contends that NAFTA did not affect the rights of the voter plaintiffs’ Senators to participate and vote on legislation, and that the passage of NAFTA did not hinder the Senators’ ability to participate and vote in the future.

The Government argues both that Michel is factually dissimilar from this case and that the Supreme Court’s decision in Raines v. Byrd casts serious doubt as to Michel’s continued viability. In Raines, individual members of Congress brought an action challenging the constitutionality of the Line Item Veto Act. The Court held that the individuals did not have a sufficient “personal stake” in the dispute and did not sufficiently allege a concrete injury so as to establish standing under Article III. The Court, distinguishing its decision in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), 26 found that the Act did not single out any of the plaintiffs, but that the diminution of power damaged all Members of Congress equally. The Court also found that the plaintiffs were seeking redress from a loss of political power rather than something to which they were personally entitled, as was the case in Powell. 27

The Raines court further concluded that the plaintiffs’ situation did not fall within its holding in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). In Coleman, the Court recognized the standing of state legislators who had been locked in a tie vote that would have defeated the state’s ratification of a proposed federal constitutional amendment, and who claimed that their votes were nullified when the Lieutenant Governor broke the tie by casting his vote in favor of ratification. The Court found that the plaintiffs had “a plain, direct and adequate interest in maintaining the effectiveness of their votes.” 28 The plaintiffs in Raines, however, had not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated. The Court thus determined that application of Coleman to the facts of Raines would require too great an extension of the Coleman decision. The abstract notion of dilution propounded by the Raines plaintiffs was simply not enough to create standing.

The Government argues that this case is factually similar to Raines in that the plaintiffs in this case are seeking redress for a dilution in voting power that each member of the Senate has experienced. The failure to utilize the Treaty Clause *1234 mechanism for the passage of international agreements does not, according to the Government, single out any particular Senators, rather, it influences the relative weight of each of their votes. Further, the Government contends that this case is similar to Raines in that the plaintiffs are complaining of a loss of political power rather than of an individual right. Thus, argues the Government, the Supreme Court’s Raines decision arguably repudiates the D.C. Circuit’s holding in Michel. 29

The plaintiffs, in contrast, concentrate on the Raines decision’s discussion of Coleman. They argue that here, as in Coleman, the complaint focuses on the legislators’ loss of voting power in relation to a specific vote. The plaintiffs contend that although the individual plaintiffs’ Senators had sufficient votes to defeat the passage of NAFTA, the Senate, the Congress and the President failed to acknowledge the fact that the Agreement had not been properly ratified. They argue that their votes were not given the proper weight and that they therefore lost a vote which they should have won.

The Government also argues that the voter plaintiffs have failed to allege any specific injury apart from the “generalized interest of all citizens in constitutional government.” 30 The Government points to the Supreme Court’s language in Lujan, where the Court stated that:

[Rjaising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in the proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.

504 U.S. at 573-74, 112 S.Ct. 2130. The Government, in characterizing the plaintiffs’ complaint as a generalized grievance, also cites Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499 (1922), where the Court dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. This case, according to the Government, involves nothing more than a generalized claim that the individual plaintiffs’ Senators, like all other Senators, have, in an indirect and abstract manner, lost some of their voting power. Thus, based on the Supreme Court’s language in Raines, Lujan, and Fairchild, the Government contends that the voter plaintiffs’ claims should be dismissed for lack of standing. 31

The Government also suggests that the plaintiffs’ claims do not entitle them to any type of declaratory judgment or injunctive relief. The Government argues that when a plaintiff seeks declaratory and injunctive relief, he or she must “establish a real and immediate threat of future injury.” 32 “Past exposure to illegal conduct does not suffice to confer standing to seek declaratory and injunctive relief, absent a real threat of imminent and continued ex *1235 posure to the conduct.” 33 Thus, the Government claims, citing City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), that unless the plaintiffs can show that the Government will again violate the provisions of the Constitution, they have no right to declaratory and/or injunctive relief. 34

B. First Conclusion of the Court

I conclude that the individual plaintiffs have not satisfactorily alleged “voter standing.” In Allen v. Wright, the Supreme Court noted that part of the standing inquiry involves the following inquiry: “Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable.” 35 Such is the case for the individual plaintiffs. I cannot conclude that these plaintiffs have alleged that they have been injured in a “personal and individual way” or that their injury is “concrete and particularized.” 36 As in Raines, the plaintiffs in this case have not been individually “singled out for specially unfavorable treatment.” 37

Although the plaintiffs argue that their Senators’ votes were not given their proper weight in the NAFTA vote, the plaintiffs do not contend that the NAFTA vote was specifically engineered to injure them or that the process used to conclude NAFTA was created solely for the purpose of diluting their Senators’ votes. The fast track procedure has been used to conclude a number of international agreements since its inception in 1974, it was not created for the purpose of diminishing the votes of the plaintiffs’ Senators. Whatever injury, if any, these plaintiffs may have suffered may be shared by any citizen of the United States who objects to NAFTA regardless of whether their Senator(s) voted for or against NAFTA. A voter whose Senator(s) voted for NAFTA but who himself objects to NAFTA would arguably have an equal right to complain as would a voter whose Senator(s) voted against NAFTA. These plaintiffs’ votes have been no more diluted. 38 The injury claimed by *1236 the voter plaintiffs is simply too abstract to suffice for standing in this case. As noted by the Whitmore Court, “an asserted right to have the Government act in accordance with the law is not sufficient, standing alone, to confer jurisdiction ...” 39 The voter plaintiffs have asserted little else. These plaintiffs’ claims will be dismissed for lack of standing.

C. Institutional Plaintiffs

The Government argues that the institutional plaintiffs’ claims fail to establish standing when examined under the second and third prongs of the Lujan analysis, claiming that the institutional plaintiffs have failed to show that their alleged injuries are fairly traceable to actions taken by the defendant and that they have failed to establish that their injuries are redressable by this court. 40

1. Causal Connection

According to the Government, the vague and non-specific allegations of the institutional plaintiffs fail to form sufficient foundation for establishing that their injuries are “fairly traceable” to the actions of the defendant. Further, although the Government argues that the general “causal connection” language of cases such as Lujan sufficiently illustrates why the institutional plaintiffs lack standing in this case, it makes an additional “causal connection” argument based on a claimed distinction between NAFTA itself and NAFTA’s implementing legislation. 41

a. The Government’s Claimed Distinction Between the NAFTA Agreement and the Implementing Legislation

The Government contends that NAFTA, as concluded between the United States, Canada and Mexico, is separate and distinct from the implementing legislation and related regulations. The Government further submits that the parties to NAFTA did not intend NAFTA to be self-executing, but agreed that each nation would adopt the “necessary legal procedures” to give the agreement effect as domestic law under their respective systems of government. 42 The “necessary legal procedures” employed by the United States came in the form of the Implementation Act. In passing the Implementation Act, Congress approved NAFTA and made “all amendments to existing Federal statutes or provision of new authorities, including authority for Federal agencies to issue regulations, known to be necessary or appropriate to enable full implementation of, and compliance with, U.S. obligations under NAFTA.” 43 The crux of the Government’s contention with respect to this matter is that even though the Implementation Act refers to NAFTA in establishing a number of the laws necessary for the agreement’s implementation, such reference simply incorporates certain written terms of NAFTA into duly-ap *1237 proved domestic legislation. The mere fact that the Implementation Act refers to NAFTA does not, according to the Government, make the Agreement and the Act one and the same.

In refuting the plaintiffs’ contentions, outlined below, regarding whether or not portions of NAFTA are self-executing, the Government points to 19 U.S.C. § 3312(a) which states that no provision of NAFTA shall have effect if it is inconsistent with federal law. This, argues the Government, is a clear statement by Congress indicating that NAFTA itself was to have no effect on United States domestic law.

The Government’s “causal connection” argument springs from its contention that the plaintiffs’ complaint focuses on injuries that could only be caused by the Implementation Act as opposed to NAFTA itself. The Government cites a number of passages from the plaintiffs’ complaint seeking relief from the “implementation” of NAFTA rather than from NAFTA itself, and notes that the plaintiffs have failed to identify any specific provisions of NAFTA itself that have contributed to their alleged injuries. Thus, the Government concludes that the plaintiffs’ claims, while allegedly attacking the constitutionality of NAFTA itself, actually focus upon the provisions of the Implementation Act. This is significant in that, according to the Government, the plaintiffs cannot legitimately argue that the Implementation Act is unconstitutional. Therefore, according to the Government’s analysis, the plaintiffs’ claims are not challenging, and cannot challenge, the constitutionality of the true source of their injuries — the Implementation Act. Rather, plaintiffs’ claims call for the elimination of NAFTA, an international agreement, while claiming injury from duly passed domestic legislation. Thus, the Government argues that the plaintiffs have failed to allege facts showing that their alleged injuries are “fairly traceable” to NAFTA itself.

b. The Plaintiffs’ Response

The institutional plaintiffs note that their complaint alleges that they have suffered the following injuries as a result of the approval and implementation of NAFTA: (1) members of plaintiff Made in the USA Foundation have been impeded in their efforts to buy American-made goods; (2) members of plaintiffs USWA, Local 12L, and Made in the USA Foundation have lost their jobs; (3) plaintiff USWA has lost members as a result of those job losses; (4) plaintiff USWA and its members have been impeded in their efforts to negotiate collective bargaining agreements; and (5) plaintiff USWA.has been forced to utilize scarce resources to counteract and seek redress for the various injuries that NAFTA has caused its membership. They therefore argue that the Government’s basic lack of causal connection argument is without merit.

The institutional plaintiffs make several arguments with respect to the Government’s arguments based on the distinction between NAFTA and the Implementation Act. They first contend that, despite the Government’s attempt to characterize them otherwise, the claims contained in the amended complaint are directed at injuries caused by NAFTA itself. They note that even their original complaint seeks relief from injuries caused both by the making and implementation of NAFTA and that the amended complaint refers specifically to injuries caused by NAFTA itself. Further, they maintain that the attempt to separate NAFTA from the Implementation Act is an invention of the Government for the purposes of this ease and that the alleged distinction represents an attempt to separate that which is inexorably bound together.

The plaintiffs point out that President Clinton’s 1997 “Study on the Operation and Effect of the North American Free Trade Agreement” refers in general to “NAFTA’s ... benefits,” not to the benefits created by the Implementation Act. The Statement of Administrative Action *1238 submitted to Congress by the President (hereinafter “SAA” or “Statement of Administrative Action”), 44 explaining the expected impact.of NAFTA and describing the necessary implementing legislation acknowledged that, “as a result of NAFTA,” some workers would lose their jobs. The Statement of Administrative Action also stated that the purpose of the implementing legislation was “to bring U.S. law fully into compliance with U.S. obligations under the Agreement.” 45 The plaintiffs also argue that the Implementation Act itself makes it clear that it cannot exist without NAFTA, pointing out that most of its provisions take effect only as of the date of entry into force of NAFTA, and that even its threshold provision, in 19 U.S.C. § 3311, acknowledges this dependence. 46 These references to NAFTA represent more than an incorporation of NAFTA’s provisions, argue the plaintiffs. Rather, they represent the complete dependence of the Implementing Act upon the making of the Agreement itself.

The plaintiffs further maintain that the dependence of the Implementation Act on NAFTA does not stop with the threshold provision of the Implementation Act. Rather, they contend that a number of the specific provisions of the Implementation Act are dependent upon NAFTA for their effectiveness. The plaintiffs’ primary examples are the tariff provisions. While the Government characterizes the tariff provisions as completely independent of NAFTA itself, the plaintiffs point out that, in providing the President with authority to reduce tariffs in order to comply with NAFTA, Congress provided that the President could modify or reduce tariffs as “necessary or appropriate to carry out or apply articles 302, 305, 307, 308, and 703 and Annexes 302.2, 307.1, 308.1, 300-B, 703.2, and 703.3 of the [NAFTA].” 47

The plaintiffs also argue that many of NAFTA’s provisions are completely independent from the Implementation Act, such that, even if one were to attempt to view the Agreement and the Act as severa-ble, NAFTA would still be playing a major role in the harm suffered by the plaintiffs. Examples of self-executing provisions within NAFTA, according to the plaintiffs, include: (1) commitments made under Articles 302, 307, 309 and 310, whereby the United States agreed not to increase any duty except as provided for in the Agreement and not to adopt certain other prohibitions or restrictions on imports, and (2) provisions under Chapter Eleven requiring Mexico to change its policies regarding foreign investment. Plaintiffs claim that although the law changed in the second example is Mexican law, the law clearly would not have been changed without the Agreement, and that the change has injured plaintiffs by causing American businesses and jobs to move to Mexico. According to the plaintiffs, the Government’s distinction between NAFTA and its implementing legislation is both new and inaccurate. Thus, they contend not only that their claims clearly focus on both the Agreement and the Act, but that, to the extent that they do not, such failure makes no difference in light of the fact that they