Patrick Tangney

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The United States, which historically has resisted the trend toward ceding sovereign competences to supranational organizations, recently has begun to cede such competences to trade organizations such as the World Trade Organization and the North American Free Trade Agreement. This process has gone largely unchallenged by the courts, yet it may pose unanticipated risks to the structure of our constitutional order. Ceding sovereign competences presents risks precisely because, once they are ceded, neither the legislature nor the judiciary can, as a practical matter, reverse the harm done to the constitutional structure. Through rejection of the traditional invocation of judicial doctrines that are designed to avert judicial review of ceding sovereign competences, the judiciary is the ideal branch to use its discretionary powers to prevent the redistribution of power among the three branches of the federal government. Germany, in its ongoing integration into the European Union, has faced similar challenges and provides a constructive example of how the judiciary can mitigate the constructive amendment of the constitution. The German experience illustrates how the United States may address similar challenges.

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