The Federalist Blog

Remember that trucking provision under NAFTA (The North American Free Trade Agreement), which was ratified in November of 1993, allowing Mexican trucks to access border States highways by 1995 and to all US highways by 2000? The trucking provision of the agreement has never been fully implemented due to safety concerns of Mexican trucks, which currently are restricted to a 25-mile border zone. This has resulted in retaliatory tariffs by Mexico over this disputed highway access.

In July, the United States and Mexico signed an agreement aimed at resolving this cross-border trucking dispute under NAFTA. While most of the controversy centers on safety concerns, the real concern should be with Congress’ authority to mandate foreign traffic within sovereign State limits.

It will be argued Congress can mandate foreign trucking upon American highways under Commerce Clause authority. This will ignore the fact nations regulate their commercial intercourse through duties and imposts on articles of imports only. The regulation of commerce was never a police power or a power over commercial activities within another sovereign (more on this here).

It might be argued that early Congress’ had always regulated transportation; ignoring the fact the exercise was with ocean vessels under law of nations over marine affairs of nations and not from any power to regulate commerce. Never did early Congress’ claim any regulatory authority over transportation within States to assert municipal control of traffic via the regulation of commerce since such a regulation was purely a taxation power to restrict or prohibit importation.

It could be argued Congress has the authority under the power to make treaties but then the treaty power does not extend any new powers for Congress to exercise over the States. As James Madison put it, the “exercise of the power must be consistent with the object of the delegation.”

In The Cherokee Tobacco Case, 11 Wall. 616, the Supreme Court of the United States said: “A treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” In The People v. Naglee, 1 Cal. 231, it was held that a treaty “cannot supersede a State law which enforces or exercises any power of the State not granted away by the Constitution.” In The People v. Washington, 36 Cal. 658, it was said that “a treaty is but a part of the law of the land, and what is forbidden by the Constitution can no more be done by a treaty than by an act of Congress.”

And of course in Marbury v. Madison the Supreme Court held “an act of the legislature repugnant to the constitution is void.” I can’t think of anything more repugnant to the constitution then Congress acting through treaty to force foreign trucks upon State highways.

Congress needs consent of State legislatures to purchase property within a State, and application of State legislatures to protect a State against domestic violence. What makes anyone think the States surrendered their authority over their own dry land highways?

Simply stated, this is just another arrogant, blatant disregard of State sovereignty by the United States government, who has no constitutional authority to implement such foreign trucking schemes within independent and sovereign States. Because the regulation of commerce was never regulated by any other means then a tax on imports between nations, proves no authority over transportation upon State highways was delegated to the federal government to exercise under any pretense during peace.

At best, Congress can only recommend to States to permit foreign trucks upon their highways and inform Mexico it will be up to each State to consent like in past cases of treaties dealing with foreign education within States.