Do We Have an Agreement? Examining the Constitutionality and Legality of the Security and Prosperity Partnership of North America, and the Legal Ramifications of its Informality

Penn State International Law Review Volume 27 Number 3 Penn State International Law Review Article 22 5-1-2009 Do We Have an Agreement? Examining the Constitutionality and Legality of the Security and Prosperity Partnership of North America, and the Legal Ramifications of its Informality R. Chris Van Landingham Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the International Law Commons Recommended Citation Van Landingham, R. Chris (2009) "Do We Have an Agreement? Examining the Constitutionality and Legality of the Security and Prosperity Partnership of North America, and the Legal Ramifications of its Informality," Penn State International Law Review: Vol. 27: No. 3, Article 22. Available at: http://elibrary.law.psu.edu/psilr/vol27/iss3/22 This Comment is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact . Do We Have an Agreement? Examining the Constitutionality and Legality of the Security and Prosperity Partnership of North America, and the Legal Ramifications of its Informality R. Chris Van Landingham* I. INTRODUCTION The Security and Prosperity Partnership of North America ("SPP") is a tri-lateral partnership formed in 2005 between the United States, Canada, and Mexico.' The three countries previously took numerous steps such as the creation of the North American Free Trade Agreement ("NAFTA") 2 to increase the economic prosperity of the continent, and following the terrorist attacks of September 11, 2001, the countries began working more closely to ensure continental security.3 However, U.S. President George W. Bush, Canadian Prime Minister Paul Martin and * Juris Doctorate Candidate, The Dickinson School of Law of the Pennsylvania State University, 2009; Bachelor of Arts, in History, Florida State University, 2005. I would like to give a special thanks to my wife Elena for all the help and support she has given me over the years. 1. See Press Release, White House, Joint Statement by President Bush, President Fox, and Prime Minister Martin (Mar. 23, 2005), available at http://www.whitehouse.gov/news/releases/2005/03/20050323-2.html [hereinafter Joint Statement]. 2. Implementation of the North American Free TradeAgreement (NAFTA) began on January 1, 1994. This agreement will remove most barriers to trade and investment among the United States, Canada, and Mexico. Under the NAFTA, all non-tariff barriers to agricultural trade between the United States and Mexico were eliminated. In addition, many tariffs were eliminated immediately, with others being phased out over periods of 5 to 15 years. This allowed for an orderly adjustment to free trade with Mexico, with full implementation beginning January 1, 2008. U.S. Department of Agriculture, Foreign Agriculture Service, North American Free Trade Agreement, http://www.fas.usda.gov/itp/Policy/NAFTA/nafta.asp (last visited Feb. 9, 2008). 3. See Joint Statement, supra note 1. PENN STATE INTERNATIONAL LAW REVIEW [Vol. 27:3,4 Mexican President Vicente Fox felt that additional steps needed to be taken.4 This desire to increase continental cooperation in these areas resulted in the establishment of the SPP. 5 This Comment is divided into seven parts. Part I introduces the SPP and explains its background, origins, and purpose. Part II of the Comment provides a detailed overview of the two primary agendas of the SPP: security and prosperity. Part III explains how the SPP's agenda is being implemented throughout North America. Part IV explains the executive branch's constitutional authority in the areas of foreign policy and treaty making, and defines the SPP as an agreement. Part V of the Comment describes the role and purpose of the North American Competitiveness Council within the SPP. Part VI parses the Federal Advisory Committee Act and argues that the North American Competitiveness Council violates provisions of the Act. Finally, Part VII of the Comment concludes that although the SPP is constitutional, its informal legal origins and structure may lead to future confrontations between the three branches of U.S. federal government. The SPP is premised on the idea that the security and prosperity of each of the three member nations is mutually dependent on the other nations. 6 The security goals include establishing a common approach to 4. See id. 5. See id. 6. See id. The SPP is a White House-led initiative among the United States and the two nations it borders-Canada and Mexico-to increase security and to enhance prosperity among the three countries through greater cooperation. The SPP is based on the principle that our prosperity is dependent on our security and recognizes that our three great nations share a belief in freedom, economic opportunity, and strong democratic institutions. The SPP outlines a comprehensive agenda for cooperation among our three countries while respecting the sovereignty and unique cultural heritage of each nation. The SPP provides a vehicle by which the United States, Canada, and Mexico can identify and resolve unnecessary obstacles to trade and it provides a means to improve our response to emergencies and increase security, thus benefiting and protecting Americans. See SPP.gov, Myths vs. Facts, http://spp.gov/myths-vs-facts.asp (last visited Jan. 5, 2007) [hereinafter Myths vs. Facts]. The SPP lists the following benefits to North American citizens: To save lives, prevent injuries, and make consumer goods safer, the United States, Canada and Mexico signed separate agreements for advance notifications when consumer goods violate one country's safety standards or pose a danger to consumers. To strengthen border security, Mexican and U.S. agencies are exchanging information and establishing protocols to detect fraud and smuggling, and address border violence. To speed up response times when managing infectious disease outbreaks, the United States and Canada signed an agreement to enable simultaneous exchange of information between virtual national laboratory networks. To speed cargo shipping, the three countries are developing uniform in-advance electronic exchange of cargo manifest data for 2009] Do WE HAVE AN AGREEMENT? security and making the movement of traffic across the borders more efficient. 7 The prosperity goals include improving the quality of life for citizens of the three member states and enhancing the competitiveness of North America in the global marketplace.8 II. AGENDAS A. Security Agenda The security agenda has three goals: secure North America from external threats, prevent and respond to threats from within North America, and streamline the secure movement of low-risk traffic across shared borders. 9 To secure North America from external threats the SPP is creating a North American traveler security strategy.' 0 The SPP is also implement (...truncated)