Constitutional tensions and rhetoric in the NAFTA debate

NAFTA

Clinton, Congress, the Constitution and NAFTA

As Thomas E. Woods, Jr. (2004) asserts, the Clinton Administration did much to expand the role of government in the lives of ordinary citizens. Woods alludes to the Clinton Administration's policies as "damaging and counterproductive expansions of government power, particularly in agricultural, housing, and environmental policy" (p. 239). Just looking in the realm of agribusiness, the expansion of government power and corporate monopoly is seen clearly in the North American Free Trade Agreement (NAFTA) that destabilized Mexico for the sake of corporate profits. NAFTA was adopted January 1, 1994, following a debate that did little to prevent the agreement from being signed. However, the effect of NAFTA was not what the rhetoric made it seem it would be. This paper will analyze the supporting and oppositional perspectives on the passing of NAFTA as well as the constitutional powers that came into question (and the tensions that arose between the President and Congress).

Background

Jeffrey Tucker (1996) states that NAFTA from the beginning was not what its advocates made it out to be. The rhetoric in the 1990s surrounding NAFTA was protectionist and self-serving -- and very misleading. While those who supported the agreement among Canada, the U.S., and Mexico described it as an important step in establishing free trade on the continent, those who opposed it saw something rather sinister in the agreement. In fact, they saw it as destructive to the very concept of free trade. Jeffrey Tucker explains:

The treaty was as much about protection as trade. In the imaginations of Nafta's Washington theorists, this would give 'us' (the U.S., Canada, and Mexico) a boost of market power over 'them' (Asia and Europe), which would allow 'us' to compete and win in the global competition for resources and markets. The point of Nafta was to allow 'us' (which really means the government and its most closely connected banks and corporations) to throw 'our' weight around the rest of the world. The Clinton administration and its Republican allies adopted this rhetoric in the closing days of the debate (Tucker, 1996).

What Tucker illustrates is the bandwagon principle that dominated the debate rhetoric surrounding NAFTA: in other words, it was situated in an "us" vs. "them" paradigm -- and just as today, Americans were either with "us," the good guys, or with "them," the anti-capitalists, the anti-free market traders, the communists, the terrorists, etc. The simplistic outlook of proponents of NAFTA skirted the issues that had been in existence since the 80s when the agreement was initially brought up. Those who attempted to relocate the rhetoric in realistic terms of economic, social, and political consequences were viewed as belonging to "them."

As David Bacon (2004) states, "NAFTA repeatedly plunged a knife" into the hearts of American and Mexican laborers (p. 19). But it also did more: it dropped the facade it had upheld for the approval of all when "its promised benefits failed to materialize" (Bacon, 2004, p. 19). The problem with NAFTA, in reality, was that it was never intended to help the ordinary men and women who could actually benefit from an actual free trade agreement. NAFTA was designed solely to benefit corporate interests. As Bacon describes, the public had been swindled: "According to U.S. president Bill Clinton and labor secretary Robert Reich, a safety net -- including retraining and extended unemployment benefits -- was ready to catch the unfortunate few whose out-of-date skills made their jobs expendable. Jose Castillo and his wife, Ingracia, found this promise to be like the hot wind that blows around their home in the Coachella Valley -- elusive, empty, and incapable of sustaining life" (Bacon, 2004, p. 19-20). Clinton's role in the deception was merely to act as Bush's successor, handing over for Congressional approval what the Republican neo-conservative Bush had already put into play.

Neo-conservatives in Congress (on both sides of the aisle), like Newt Gingrich, John Kerry, and Joe Biden could see the pros of NAFTA: cheap labor for Big Agra. Those who could see the cons (cheap labor for Big Agra) were, however, defeated by a kind of constitutional loophole. As a result, Clinton was able to continue Bush's legacy of selling out the working class, despite the fact that he failed to win the ordinarily necessary two-thirds approval for a treaty. NAFTA, they said, was no treaty -- even though they called it a treaty numerous times (Schlafly, 1994). Whatever, the proponents called it, NAFTA took away the union to which people like Castillo belonged: it effectively ended their way of life so that Big Agra could take over. NAFTA allowed corporate America to establish a monopoly in Mexico for profits that ordinary farmers "on both sides of the border" would never see again (Bacon, 2004, p. 20).

NAFTA and the Congressional-Executive Agreement

NAFTA was actually signed at the end of 1992, more than a year before it was scheduled to go into effect. NAFTA was essentially pushed through Congress "before fast-track provisions of U.S. trade law expired…[thus assuring] no statutory deadline for submitting implementing legislation" (Hubauer, 1993, p. 1). Theoretically, NAFTA was nothing more than "a new, improved, and expanded version of the Canada-U.S. FTA," but it also was meant to address "unfinished business from the FTA, including protection of intellectual property rights, rules against distortions to investment…and coverage of transportation services" (Hubauer, 1993. p. 2). Passed into law by simple majorities in both Houses, NAFTA departed "radically from the constitutional practice of the first 150 years of the Republic" (Ackerman, 1995, p. 1). In other words, practice of acquiring the two-thirds majority that was needed to pass this type of treaty was overturned by simply redefining the treaty in different terms.

Clinton and the members of Congress who supported NAFTA of course had their reasons for doing so. As reported in the Harvard Law Review (2000), "the fiercest opponents of NAFTA were labor supporters, who argued that the agreement would harm American workers by encouraging American businesses to exploit far cheaper Mexican labor" (Constitutional Law, 2000, p. 1234). These opponents had ample reason to reject the agreement simply on moral grounds. But they also had constitutional grounds for rejecting NAFTA. As Ackerman observes, "Article 2, section 2 of the Constitution requires treaties to be approved by two thirds of the Senate. But many international accords, including NAFTA and the World Trade Organization, are approved as congressional-executive agreements by simple majorities of both Houses" (p. 1). Such approval was, of course, a "modern development…part of the constitutional revolution of the Roosevelt years" (Ackerman, 1995, p. 1). In other words, NAFTA was rammed through Congress thanks to a constitutional loophole that made it out to be something other than it truly was. If there was any tension between the President and Congress, it was eased by the neo-conservative interpretation of constitutionality that essentially said whatever was good for big business was good for America.

In other words, there was no real tension between Clinton and the neo-conservatives of Congress. The only tension was between true conservatives (again, on both sides) who saw NAFTA as a deal with the devil. The constitutional loophole that Clinton and his team of rhetoricians was able to invoke was nothing more than a "congressional-executive agreement" that had been in play since the era of the New Deal (Ackerman, 1995, p. 1). As Ackerman describes it, Clinton and his supporters in Congress (on both the right and the left) took advantage of the "transformative techniques developed during the conflict between the New Deal and the Old Court in the 1930s" (p. 1). Essentially, Roosevelt and his cronies in the House of Representatives had "gained the consent of the Senate to a revision of the foreign affairs power in the aftermath of the Second World War" (Ackerman, 1995, p. 1). The constitutional loophole that would allow NAFTA to pass without a two-thirds majority was established in FDR's final term: it effectively gave the President and Congress "the authority to commit the nation on any important matter of domestic and foreign policy" (Ackerman, 1995, p. 1). Thus, NAFTA was approved by Congress in the Senate by a vote of 61 to 38.

NAFTA and the Constitution: A Treaty or Not?

A decade later, the constitutionality of NAFTA would still be debated. In 2004, the trade agreement came before the U.S. Supreme Court. Phyllis Schlafly (2004) notes that the issue was "whether Mexican trucks can have open access to U.S. highways even though they don't comply with U.S. regulations." The problem with the matter is that Congress has every right to decide on the matter, "since the U.S. Constitution gives Congress exclusive power 'to regulate commerce with foreign nations'" (Schlafly, 2004). Thus, when in 2001, an international tribunal set up by NAFTA asserted that the U.S. was breaking its deal with Mexico by restricting movement of Mexican trucks on American roads, the tribunal effectively described NAFTA as a treaty -- even though it passed Congress on the basis that it was not a treaty: "The NAFTA tribunal ordered the United States to lift its restrictions on foreign trucks, mandating full access by Mexican trucks across the entire United States. This ruling repeatedly referred to NAFTA as a 'treaty' and relied on interpretations of past treaties as justification for the decision" (Schlafly, 2004).

Yet, as Schlafly states, NAFTA was not submitted for Senate approval as a treaty, and this is exactly how it was able to pass. Had it been submitted as a treaty it would have required two-thirds approval -- which it did not receive. Instead, it passed by a congressional-executive agreement. Thus, one of the ramifications of NAFTA (aside from the moral, social, and economic upheaval) is the fact that it is one more nail in the coffin of the Constitution. As Schlafly remarks, "implicitly at stake in this case is whether congressional bypass of the Treaty Clause, Article II, Section 2, can bind the United States as fully as a treaty does. Our system of federalism is also vulnerable, due to the deference historically given to treaties over the rights of the several states" (Schlafly, 2004). The effect of NAFTA, then, is a weakening of the rule of law and a strengthening of a new kind of agreement between the executive and legislative bodies -- one that plays fast and loose with the Constitution.

NAFTA has continued to play its part in the merger of business and government, also known as Fascism. Schlafly remarks that a new NAFTA Super Highway will bring more foreign trucks deeper into the heart of the U.S. The Trans-Texas Corridor proposes to "bisect Texas from its border with Mexico to Oklahoma" (Schlafly, 2006). Most interesting of all, however, is the fact that despite the fact that "the plan is sometimes called NAFTA Plus, there will be no single treaty text and nothing will be submitted to the legislatures of the three countries. The elites plan to implement their shared vision of a 'merged future' through 'the signing of 'regulations' not subject to citizens' review" (Schlafly, 2006). In other words, NAFTA is viewed as a treaty when it works in its favor, and is not viewed as a treaty when it does not work in its favor.

The Canadian Connection

Canada, of course, also plays a role in all of this. Starting in the 1950s, new technological innovations were the cause of an increase in trade across the Canadian-American border. The trade between the two countries was the source for a stable economic relationship that was supported by a political relationship in which Canada allowed itself to base its foreign policy in accordance with American interests.

Canada also introduced American branch plants into its borders. Over three hundred American operations opened in Canada, which helped boost Canada's economy and tie the nation to its American neighbor. Thus, when the Cold War broke out in the 1960s, Canada considered itself to be a military ally of America. One example of the new alliance was the North American Air Defense Agreement, which combined the air forces of the two North American nations. Canada and America would henceforth act as one nation defending the entire continent.

To this day, Canada is still the United States' most important partner in trade. Almost 90% of all Canadian trade is with the United States -- a percentage that promises a long-lasting relationship despite differences in the handling of foreign and domestic policy. Some of these differences may be seen in the fact that Canada had sent diplomats to China nearly a decade before the U.S. established relations with the Communist country. Canada also has a working relationship with Cuba a free-flowing trade agreement. The U.S., of course, frowns upon such a relationship; nonetheless, Canada asserts its independence from American foreign policy in such a manner.

What the two nations boast, however, is the International Boundary -- the longest "undefended" border in the world -- a sign of Canadian/U.S. fellowship, and a sign that Canada's part in NAFTA should make it obvious that NAFTA was a treaty and thus illegally passed. But it passed all the same -- and the corporatocracy should receive all the thanks.

Conclusion

NAFTA was just one more step in the game plan of the corporatocracy and the neo-conservative agenda. It mattered not whether a Bush or a Clinton was in the White House or whether Republicans or Democrats controlled Congress. It was the same story told again in different words: the Constitution was dead -- and it had been dead for some time. History had proven it so (and Lysander Spooner had said it all along). In fact, as far back as the 19th century, America's true imperialistic tendencies were observable.

The overwhelming reason for the Mexican War (1846-48) was stated by John L. O'Sullivan and it had everything to do with Manifest Destiny -- the so-called God-given right of WASP (white Anglo-Saxon Protestant) Americans to come, see, and conquer. John L. O'Sullivan gave more to the world in 1845 when he coined the term Manifest Destiny than just another way of describing annexation. What he put into words was the pragmatic philosophy that motivated the ranks of WASPhood. Manifest Destiny -- the natural right of Americans (by virtue of their indomitable Protestant spirit) to pursue land as far as they saw fit -- was the spur. Indeed, the Democratic Review assured Americans that it was their fate "to overspread the continent allotted by Providence for the free development of our yearly multiplying millions" (Westward Expansion, 2011), and the effects of that pronouncement had already been seen in the expansionist wars inspired by Stephen F. Austin who spoke "grandly of colonizing the Mexican province of Texas with 'North American population, enterprise and intelligence'" (Westward Expansion). Essentially, NAFTA has been nothing more than Manifest Destiny with Congressional approval and a constitutional loophole.

Reference List

Ackerman, B. (1995). Is NAFTA Constitutional? The Harvard Law Review 108(2), 1-

11.

Bacon, D. (2004). The Children of NAFTA. LA: University of California Press.

Constitutional Law. (2000). The Harvard Law Review 113(5), 1234-1239.

Hufbauer, G.C. (1993). NAFTA: An Assessment. DC: Institute for International

Economics.