The decision by a U.S. district judge this week that Congress cannot approve the crucial North American Free Trade Agreement until a massive environmental impact statement is done is a disastrous mistake. Not only does it threaten to kill NAFTA, stymie 900,000 U.S. export jobs and upset Mexico's political hopes and economic growth, but it is simply bad law.
Like too many other judicial decisions in recent decades that have dramatically extended the reach of judges and courts, the NAFTA ruling does damage to the U.S. Constitution, striking a blow against the fundamental separation of powers.How can a judge order a president not to send legislation to Congress? How can a judge decide something about legislation that has not even been debated by Congress? How can a judge interfere with a president's ability to negotiate international treaties? How can an American judge act in such a way that effectively extends his jurisdiction into Mexico?
District Judge Charles Richey tried to sidestep such basic questions by pretending that NAFTA was not the work of the president but merely the effort of a minor federal agency, the trade negotiator's office. That's ridiculous. NAFTA has been a key piece of work by President George Bush, has been backed by President Clinton, and has played a major role in American foreign policy.
If this piece of Constitution dismantling holds up, it would not only doom NAFTA but would open the door to demanding environment impact statements for any federal program that encourages growth, such as the president's economic plan.
Carrying out a full-fledged environmental impact study could take up to a year or more and would create major obstacles for NAFTA in Congress, where protectionists don't want a free trade zone involving Canada, the United States and Mexico. A repudiation of NAFTA could also cause the fall of Mexico's government and end its free-market reforms that are stimulating the Mexican economy.
Environmentalists who filed the lawsuit say they are concerned about the export of pesticide-tainted foods into the United States and are worried that NAFTA would encourage American business to move across the border to take advantage of Mexico's cheaper labor and weaker environmental laws, thus causing greater pollution.
But American businesses can already do that. And environmental concerns already are the subject of side negotiations in connection with NAFTA.
Clinton has vowed to appeal the district court ruling as quickly as possible and will push the legislation in Congress despite the judge's ruling. But the matter is sure to end up in the U.S. Supreme Court, a process that usually takes time. Lengthy delay could be fatal to NAFTA.
The administration should pull out all the stops in its effort to solve the legal challenges, get NAFTA through Congress and put the treaty into effect next year as signers of the pact promised.