Can Trump Force States to Change WTO-illegal laws?
(Adapted from a Twitter thread.)
What can the feds do if Michigan et al want to keep their green industrial policies, WTO be damned?
@ErikVoeten and @JPTrachtman’s colloquy on this topic sent me to my archives.
Under the URAA, the federal government can Sue Massachusetts to force compliance with the WTO treaties. By the way, there might also be a commerce clause issue with these measures.3
See Joel Trachtman’s other Tweets
First, here’s the underlying law — Section 102 of the Uruguay Round Agreements Act of 1994 (19 U.S.C.A. § 3512(b)(2)). The executive branch can sue states in federal courts to comply.
The feds have never actually used it, though it’s come up a few times.
Since we’re discussing it, here is the provision of the Uruguay Round Agreements Act of 1994 that Joel was talking about. I’d be curious to hear if the 7 states were accorded all their consultative rights in the lead-up to yesterday’s decision,
See Todd N. Tucker’s other Tweets
In 1996, the Cherokee Nation sued the U.S. Senate, complaining about the lack of consultation on the Uruguay Round that led to the WTO.
Their demand: repeal the WTO or repeal the U.S. (Cook v. U.S. Senate).
The courts said no: only feds and states can get in on this action.
Exhibit 1,001 on why modern federalism is broken, racist, incomplete, and in violation of treaty commitments to Native Americans.
The other plank of the proposal — dedicated Senate representation for Native Americans — also takes up a largely forgotten part of history. The US’ treaties with the Cherokee and Choctaw nations pledged representation. @tahtone @EzraRosser have more:https://www.yesmagazine.org/people-power/the-cherokee-nation-is-entitled-to-a-delegate-in-congress-but-will-they-finally-send-one-20170104 …
In 2000, the Supreme Court weighed into the space, in a case brought by the National Foreign Trade Council against a Massachusetts ban on Burmese products over human rights concerns.
A unanimous Court determined that the Massachusetts law was preempted by federal law and interfered with the president’s foreign policy powers. The Notorious RBG, Breyer, and Thomas — all still on the Court — joined in the judgment.
As support for this holding, the Court noted that the very existence of WTO litigation on the matter was evidence that Burma bans were best handled at the federal level. (Fun fact: Trump’s sole GOP challenger William Weld was MA governor at the time.)
In a footnote, the Court cites 19 U.S.C.A. § 3512(b)(2), noting that — just because it’s only the feds that can sue the states over WTO compatibility of state laws — that doesn’t mean that other parties can’t sue WTO-incompatible state laws that also happen to violate US law.
Joel was involved in the case and wrote an article about it, for those who are interested (cambridge.org/core/journals/…)
The whole area of federal-subfederal interaction is a fascinating one, and there’s a lot of variance in how countries loop in or don’t loop in mayors, governors, and state AGs. Here’s an oldie but goodie, comparing Canada, UK, and Belgium to the US. (citizen.org/wp-content/upl…)
