Steelworkers and NAFTA

Charles Brown CharlesB at
Tue Jul 14 10:31:59 PDT 1998

Dear J.F. Noonan,

I have been a lawyer since 1979. In my opinion, especially on a case like this, law is politics, and the Supreme Court is very rightwing right now. In other words, the case will not turn on the best legal reasoning, but what is in the ruling class' best interest. This is really real legal realism, more real than the Yale Law school variety.

If Lawrence Tribe thinks there is a good legal argument that this is a treaty requiring 2/3 vote, then there IS a perfectly good legal theory for deciding with the Steelworkers. If the personnel of the Court were different they could easily use his reasoning and be on definite "solid ground". It is difficult to see the argument that it is not a treaty, but I would have to look at the pleadings in the case to see what the specific legal arguments are more narrowly than you describe.

I would bet on the Clinton administration against the Steelworkers based on the politics. However, there could be some subtle or newly emergent angle that changes the politics , as with the recent decision to strike down the line item veto, which was originally a right wing idea.

Don' t think the Supreme Court is sitting up there using some super logical , rational method, unaccessible to most people if they put in the effort to think a little more than is the norm.

Charles Brown

>>> jf noonan <jfn1 at> 07/14 12:02 PM >>>

I'm wondering if anybody (Justin Schwartz perhaps?) has an opinion of the likely success or failure of the Steelworkers' constitutional challenge to NAFTA. For those who haven't heard, the Steelworkers are challenging NAFTA as unconstitutional because it is (they assert) a treaty which requires 2/3 of the Senate to vote in favor for it to be legally binding. Defenders of NAFTA say it is simply "trade legislation" and therefore only requires a simple majority of both houses. NAFTA only received 61 votes in the Senate. Lawrence Tribe agrees with the Steelworkers saying the Founding Fathers wanted treaties to very difficult to enter into. (They used the phrase "avoiding foreign entanglements" almost constantly around the time of the drafting of the Constitution.)

A similar suit was filed by another union some time back but was dismissed because they lacked standing i.e. they couldn't show that any of their workers had been harmed *directly*. The new suit is on behalf of the former employees of Huffy bicycle company in Ohio that after several rounds of concessions to the bosses still had their plant closed and moved to Mexico.


Joseph Noonan jfn1 at

"If the government doesn't like the people, why doesn't it dissolve them and elect a new people?" --Brecht

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