[Congressional Record Volume 145, Number 116 (Thursday, September 9, 1999)]
[Extensions of Remarks]
[Page E1818]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED 
                   AGENCIES APPROPRIATIONS ACT, 2000

                                 ______
                                 

                               speech of

                        HON. DENNIS J. KUCINICH

                                of ohio

                    in the house of representatives

                        Thursday, August 5, 1999

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the bill (H.R. 2670) making 
     appropriations for the Departments of Commerce, Justice, and 
     State, the Judiciary, and related agencies for the fiscal 
     year ending September 30, 2000, and for other purposes:

  Mr. KUCINICH. Mr. Chairman, the Kucinich-Ros Lehtinen amendment would 
provide valuable and needed protection to state and local laws made 
vulnerable by NAFTA and the GATT Uruguay Round to assault by foreign 
corporations, investors and nations.
  However, some domestic opponents of the Kucinich-Ros Lehtinen 
amendment argue that it is not necessary since it would protect laws 
that the commerce clause of the Constitution would prohibit.
  In response to this argument, I would inform our critics that most of 
the state and local laws that are endangered by NAFTA and WTO are local 
economic development and public safety laws and have nothing to do with 
the commerce clause of the Constitution.
  For instance, the amendment would protect Kentucky's small-business 
set-aside law, which the European Union has said is WTO illegal.
  The amendment would also protect New Jersey's ``buy local'' 
requirements for state procurement, which the European Union has said 
is WTO illegal.
  Also, the amendment would protect California's ban on a poisonous 
gasoline additive, which a Canadian company has challenged on the 
grounds that it is NAFTA illegal.
  Some domestic opponents claim that the Kucinich-Ros Lehtinen 
amendment ``prohibits the federal government from challenging any state 
or local law on the grounds that it violates treaty obligations'' and 
would, therefore, put the United States in violation of treaties.
  First of all, there is some confusion implicit in this objection to 
the amendment about the legal status of NAFTA and the WTO. Neither 
NAFTA nor the Uruguay Round of the GATT is a treaty. Neither received 
two-thirds vote of the other body, as the Constitution requires for 
treaties. They are Congressional-Executive agreements, not treaties.
  Moving on to the question of preemption, in fact, the amendment is 
very narrowly crafted to protect state and local laws from preemption 
only by NAFTA and WTO bureaucrats. The state and local governments need 
the protection provided by the amendment since NAFTA and the WTO pose 
unique problems for them that treaties do not.
  For instance, human rights and environmental treaties do not preempt 
state law. Congress has always made clear when implementing human 
rights treaties and environmental treaties that they are not to be 
construed as preempting state law.
  But state and local law did not receive such protection under NAFTA 
and WTO. While the NAFTA and WTO implementing legislation clearly state 
that they do not preempt federal law, they do subject state law to 
direct preemption under trade rules.
  The amendment does not limit Congress from preempting state and local 
law for any reason Congress chooses. It only limits the Department of 
Justice from using the courts to enforce a WTO-bureaucrat decision 
against a state or local law.
  Therefore, Congress can pass the Kucinich-Ros Lehtinen amendment and 
the U.S. will still be in full compliance with all treaties.
  Domestic opponents also claim that there is process for federal-state 
consultation to decide whether state law should be preempted under 
trade agreements, and so far no state laws have been struck down as 
violations of trade rules.
  In response to this objection, I would remind critics that the 
consultation process does not give the states, or Congress, any control 
over the decision of whether to preempt state law. Instead the 
implementing legislation for both NAFTA and the WTO give the President 
the sole authority to decide whether to ask the federal courts to 
strike down state laws as a violation of trade rules.
  No state laws have been struck down yet because the challenges to 
state law have been filed recently and the trade panels have not yet 
assessed damages against the United States based upon the state laws.
  If you need to see realized the predictable consequences of the far-
reaching and unprecedented rights given to foreign investors, 
corporations and nations by the NAFTA and WTO (at the expense of state 
and local governments), wait until the trade panels start awarding 
damages against the U.S. based upon state laws--$970 million in damages 
requested based on California's MBTE ban, $750 million asked by Loewen 
for Mississippi Jury award, and $40 million sought by a Canadian 
company that doesn't like Massachusetts state sovereign immunity 
statute.
  Mr. Chairman, I hope that this helps to clarify the facts about the 
Kucinich-Ros Lehtinen amendment.

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