[A2k] More on intergov versus local sovereignty [CyberProf] Fact or Fiction, Fast Track Protects Sovereignty?

Seth Johnson seth.p.johnson at gmail.com
Wed May 13 10:51:46 PDT 2015


(This references the Section 8 on sovereignty in the FT bill)

---------- Forwarded message ----------
From: Seth Johnson <seth.p.johnson at gmail.com>
Date: Tue, Apr 21, 2015 at 7:07 PM
Subject: Re: [CyberProf] Fact or Fiction, Fast Track Protects Sovereignty?
To: Paul Geller <paul at pgeller.com>
Cc: Sean Flynn <sflynn at wcl.american.edu>, Cyberprof <
cyberprof at lists.stanford.edu>



On Tue, Apr 21, 2015 at 6:24 PM, Seth Johnson <seth.p.johnson at gmail.com>
wrote:

>
> What seems to me important here is that intergovernmental agreements are
> different in kind from acts of/within individual governments.  Local forms
> of recourse *against local government* don't apply.  So declaring what
> should be self-evident regarding local sovereignty does nothing other than
> misdirect.  Items b and c are no different in this respect.
>
> That is, within a popular sovereignty, we the people possess a priority of
> our fundamental rights that lets them work as a trump card on the
> government (via strict scrutiny) and this derives at bottom from the
> priority we the people claimed for ourselves and our rights over the
> government we instituted by the nature of our founding act(s).
>


I should have stated this more generally, then switched to explaining via
fundamental rights and recourse against local government.  I'm just used to
making this point with respect to fundamental rights.  The more general
statement would be more like:

Local forms of government and the way they relate to their people
(including the recourse to fundamental rights *against* local government)
don't apply.  So declaring what should be self-evident regarding local
sovereignty does nothing other than misdirect.  Items b and c are no
different in this respect.

That is, within a popular sovereignty, we the people have claimed our
government and have established the limits it works within as well as its
rootedness in the priority of we the people.  As one hopefully clear
example, we the people possess a priority of our fundamental rights that
lets them work as a trump card on the government (via strict scrutiny) and
this derives at bottom from the priority we the people claimed for
ourselves and our rights over the government we instituted by the nature of
our founding act(s).

(and so on)

(eom)


> The proper exercise of the constituent power (writing the frame and limits
> of the government by our own delegates, and enacting it by we the people,
> both prior to and independent of the government) establishes that
> foundation, to which the judiciary is thenceforth obliged to refer in its
> analysis of the status of our rights.  Within the domestic context, our
> sovereignty works that way.  But nothing about our sovereignty changes the
> fact that we don't have that priority in the international arena.  There
> has not been such an act in the international arena.
>
> The upshot is that the *best* we can expect for our fundamental rights in
> relation to intergovernmental acts is a "balancing" standard of review.
> International instruments are acts of governments, and no tribunal applying
> them can point to them as trump cards for the people -- when the
> governments claim their interests as expressed there (say "fighting
> terror") have to be balanced against whatever declarations of "universal
> human rights" are expressed there, there's no basis to argue a stricter
> standard.  Declaring a treaty, or acts under a treaty, as invalid (note:
> not "unconstitutional" as there's no constitution by the people here) is
> just not something an international tribunal can do.  They'd have to point
> to language in some instrument stating priority in a clear way, if that can
> be found in a form that somehow supersedes other intergovernmental acts.
> And even that would still not work as well as a fundamental right in a
> local popular sovereignty properly claimed by the people, which assures
> solid recourse to a trump card on the local government through the courts
> (eventually, to be sure, once you manage to get standing and a judge that
> will trace rights considerations to constitutional grounds).  Plus, I
> hardly think governments would ever sign onto something intergovernmental
> that stated that sort of priority.
>
> So, that's the basic con game in having this section in the Act.  It
> doesn't actually change anything.  Local sovereignties could well act
> against executive branch treaty acts, some day, somehow.  But it would just
> be *that act* that accomplished it.  This section's declarations do nothing
> to that end, just lend a veneer of acceptability for anyone who doesn't
> actually analyze the difference in the nature of the international arena.
>
> This is a hopefully clear explanation of local sovereignty forms of
> recourse with respect to fundamental rights; there are other forms of
> recourse we gain through the unarguable foundation in popular sovereignty
> we have in local governance contexts.  Those might be harder to explicate,
> but similar in nature.
>
>
> Seth
>
> On Tue, Apr 21, 2015 at 4:50 PM, Paul Geller <info at criticalcopyright.com>
> wrote:
>
>>  Dear Sean: Arguably, a trade-treaty adherent may have the law it likes
>> as long as it pays dispute-settlement awards for any disallowed impact on
>> another adherent. So "no binding effect on the law of ..." could mean that
>> we've our law but we may have to pay for it. But no such effect on "the
>> Government"? Who's to pay any award? Cordially, Paul www.pgeller.com
>>
>> P.S. In your blog piece, I question the suggestion that "most
>> international treaties in the U.S. [...] are non-self-executing, meaning
>> that they only become judicially cognizable as U.S. law through domestic
>> legislation implementing their mandates." In themselves, most Berne and
>> other such treaty provisions could have been applied by US courts: hence
>> the need to supersede such provisions with implementing legislation. See
>> Senate Comm. on the Judiciary, The Berne Implementation Act of 1988, S.
>> Rep. No. 100-352, 100th Cong., 2d Sess., 38 (Comm. Print 1988).
>>
>>
>> On 4/21/2015 12:04 PM, cyberprof-request at lists.stanford.edu wrote:
>>
>>   Subject:
>> [CyberProf] Fact or Fiction, Fast Track Protects Sovereignty?
>> From:
>> Sean Michael Flynn <sflynn at wcl.american.edu> <sflynn at wcl.american.edu>
>> Date:
>> 4/20/2015 6:13 PM
>> To:
>> cyberprof list <cyberprof at lists.stanford.edu>
>> <cyberprof at lists.stanford.edu>
>>  Apropos the discussion on ISDS, WTO and the TPP, here is a little
>> update on the Trade Promotion Authority Bill (aka Fast Track).
>> Announced Thursday afternoon, being marked up Wed.
>>
>>  The bill that was released last week contains a fascinating Section 8
>> on “Sovereignty,” which appears intended to make all trade agreements with
>> the U.S. not binding to the extent that they contradict any provision of
>> U.S. law, current or future. I published this blog today on the ACS blog
>> analyzing Section 8’s promises using The Washington Post's “Fact or
>> Fiction” Pinocchio scale. (Conclusion — 4 Pinocchio).
>> https://www.acslaw.org/acsblog/fact-or-fiction-does-the-hatch-wyden-obama-trade-promotion-authority-bill-protect-us
>>
>>
>>  Here is the full provision for any list discussion:
>>
>>  8. SOVEREIGNTY
>> (a) UNITED STATES LAW TO PREVAIL IN EVENT OF CONFLICT.—No provision of
>> any trade agreement entered into under section 3(b), nor the application of
>> any such provision to any person or circumstance, that is inconsistent with
>> any law of the United States, any State of the United States, or any
>> locality of the United States shall have effect.
>> (b) AMENDMENTS OR MODIFICATIONS OF UNITED STATES LAW.—No provision of any
>> trade agreement entered into under section 3(b) shall prevent the United
>> States, any State of the United States, or any locality of the United
>> States from amending or modifying any law of the United States, that State,
>> or that locality (as the case may be).
>> (c) DISPUTE SETTLEMENT REPORTS.—Reports, including findings and
>> recommendations, issued by dispute settlement panels convened pursuant to
>> any trade agreement entered into under section 3(b) shall have no binding
>> effect on the law of the United States, the Government of the United
>> States, or the law or government of any State or locality of the United
>> States.
>>
>>  (a) is pretty common in FTA implementation statutes as I describe. But
>> (b) and (c) are new. B seems literally true. But declaring that dispute
>> panels do not bind seems like a whopper to me.
>>
>>  -Sean
>>
>>
>>
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>>
>>
>



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