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...

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…