Increasing Questions Regarding the Constitutionality of Investor-State Tribunals: Increasingly, U.S. jurists and legal scholars are questioning the very constitutionality of NAFTA’s investor-state foreign investor protection system. Article III of the U.S. Constitution creates an independent judiciary, separate from the legislative and executive branches of the federal government. U.S. Supreme Court Justice Sandra Day O’Connor has questioned the delegation of Article III authority to an increasing number of trade tribunals. “Article III of our Constitution reserves to federal courts the power to decide cases and controversies, and the U.S. Congress may not delegate to another tribunal ‘the essential attributes of judicial power,’ ” said Justice O’Connor.6 In 1982 the Supreme Court declared that establishment by Congress of federal bankruptcy courts was a delegation of the constitutionally granted power of the judiciary too extreme to pass constitutional muster.
Many scholars and jurists believe that the NAFTA Chapter 11 tribunals, which have extraordinary powers to review local, state, and federal policies and decisions as well as judicial decisions including those of the U.S. Supreme Court, represent an even more radical delegation of “the essential attributes” of the judiciary. The Conference of Chief Justices passed a resolution stating “The question of whether the investor-state process is consistent with Article III of the U.S. Constitution raises a sufficiently serious and important issue that deserves prompt, thorough examination as the United States considers negotiating additional trade agreements with various other nations.”7 Despite these serious concerns, CAFTA contains the same system of investor-state xiv
Looks like they can challenge our SCOTUS.