MADE IN THE USA/Joel D. Joseph

Haves and Have Nots

Forty-five years ago the United States Supreme Court in the landmark case of Brown v. Board of Education, ordered public schools to integrate, ruling that separate is inherently unequal. The right to a good public education opens the door to a good job. The Supreme Court ruled that the have nots (black Americans) had the right to go to the same schools as the white Americans. Brown v. Board opened the doors for many African Americans to go to good high schools, attend college and graduate schools. In turn, these educated African Americans found better jobs and better lives.

The U.S. economy appears to be thriving, but it is helping the haves and hurting the have nots. The North American Free Trade Agreement (or NAFTA) has helped General Electric, General Motors, Ford and Chrysler shift jobs to Mexico and make larger profits. More than 2,000 American companies have closed U.S. plants and opened new ones south of the border. This has caused 500,000 Americans to lose their jobs.

The jobs that were lost were modest-paying jobs, workers making $7 an hour making clothing and good-paying auto jobs and assembly work of all types. What happened to these workers? They are now either unemployed or working for less, flipping hamburgers or selling long distance telephone service. These unfortunates have become the new have nots.

The haves of the economy are stockholders and high-level executives who have benefited from the stock market boom.

After NAFTA was enacted the United States has become a lot more like Mexico in ways that were never anticipated. The gap between rich and poor has been widening in the United States. We are looking more and more like a third world country with a noticeable difference between the haves and the have nots.

On the anniversary of Brown v. Board of Education (May 17) a federal district court in Birmingham, Alabama, heard arguments in a potential landmark case challenging the constitutionality of NAFTA. The Made in the USA Foundation and the United Steelworkers of America are suing to have NAFTA declared void and illegal. This lawsuit is based on the Treaty Clause, Article II, Section 2, Clause 2 of the U.S. Constitution. The Treaty Clause provides that all treaties are subject to approval by two-thirds of the Senate. NAFTA was not approved as a Treaty, but as simple legislation requiring only majority approval in the House and the Senate.

The government argued that the courts have no right to decide if NAFTA was properly submitted, claiming that this would present a "political question" that can only be decided by the President and Congress. The attorneys for the government stated that the President himself is the one who decides if an agreement with another nation is a Treaty.

A treaty is quite simply a contract between two or more nations. The president alone has very specific powers, to receive foreign ambassadors and as commander in chief, neither of which convey to him the power to enter treaties.

I argued the case on behalf of the Made in the USA Foundation. Quoting Supreme Court Justice Stephen G. Breyer I said: "Let's imagine if we ask the Founding Fathers. Wouldn't they have said, 'if it acts like a duck, treat it like a duck?' NAFTA walks like a treaty, acts like a treaty, and quacks like a treaty. NAFTA, according to the House Ways and Means Committee, is the most comprehensive trade agreement ever entered into. It binds the United States, Canada and Mexico into an economic alliance that can only be done by treaty."

While the English version of NAFTA calls it an "agreement," the Spanish text titles it a "tratado," or treaty. Further, Mexico ratified NAFTA under its constitution as a treaty. The Mexican constitution is much like our own, requiring submission of treaties to its Senate of 120 members and not to its house of delegates, which has 500 members.

Shouldn't the U.S. Constitution be accorded at least as much respect as the Mexican constitution?

Our Founding Fathers considered the issue of whether the House of Representatives should have a role in the approval of treaties. Their answer was a clear and resounding "No." In addition, those writing the constitution originally had two treaty provisions, one for peace treaties and one for commercial treaties. Both clauses were merged into one. So arguments that commercial agreements should not be considered treaties are incorrect.

In the 1940s the House of Representatives proposed a constitutional amendment giving the House treaty authority. Although passed by the House, the Senate declined to approve it. Why would the House even consider such an amendment if it already had treaty authority?

Quite obviously, because NAFTA did not achieve a two-thirds vote in the Senate, the President and Congress needed an end run around the Constitution. The President and Congress are playing fast and loose with the Constitution and need a court order to stop them.

The Made in the USA Foundation and the United Steelworkers of America are committed to pursuing this case all the way up to the U.S. Supreme Court.

Joel D. Joseph is chairman of the Made in the USA Foundation, P.O. Box 5402, Washington, DC 20016; phone 202-822-6060; email

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