By: John J. Garman and Matthew K. Bell
This paper examines the constitutionality of the binational panels of the North American Free Trade Agreement (“NAFTA”) under the United States Constitution. Part I provides an overview of the binational panel process. Part II outlines the process for challenging the constitutionality of binational panels and the obstacles that must be overcome. Part III discusses possible violations of the Due Process Clause. Part IV analyzes the constitutionality of binational panels under Article II of the United States Constitution. Part V examines the constitutional implications of Article III with respect to the absence of judicial review. Part VI is a case-by-case analysis of previous attempts to challenge the constitutionality of binational panels. The conclusion illustrates how binational panels may violate Article II, Article III, and the Due Process Clause of the 5th Amendment.