A mostly benign and largely overlooked ruling by the U.S. Supreme Court earlier this month raises questions about the constitutionality of a controversial provision in the North American Free Trade Agreement.

In the case of Free Enterprise Fund v. Public Company Accounting Oversight Board, the court ruled that the oversight board, members of whom are not appointed by the president, lacks accountability to both the executive branch and the American people.

The U.S. Coalition of Fair Lumber Importers says that the ruling may set a precedent for eliminating the binational panel review system established under NAFTA’s chapter 19.

“This is an important decision for American businesses and it supports the Coalition’s belief that the NAFTA Chapter 19 system is unconstitutional,” Steve Swanson, chairman of the Coalition and president of the family-run Swanson Group in Oregon, said in a press release.

The USCFL has fought for the elimination of the binational panel review system and called it “a charade designed to provide the appearance of due process without any of its substance.”

The provision allows Canadian and Mexican businesses and individuals to challenge U.S. trade regulations while circumventing Article III courts, such as the U.S. International Trade Commission, which are the typical venues for such matters.

“The system deprives U.S. industries and workers of their right to seek a fair and impartial hearing in trade disputes,” the groups website says.

The panel is made up of lawyers experienced in international trade. They are appointed by the two governments involved in the trade dispute. The panel is empowered to review U.S. government agencies’ of U.S. trade laws. They posses the power to override or reverse actions ordered by those agencies. However, their actions are not subject to review by any other branch of the U.S. government.

Because members of the panel are not appointed by or subject for removal by the president, the clause may be unconstitutional.

“The Supreme Court held that any entity exercising executive power must be subject to executive oversight from the president, meaning that it is ultimately accountable to the American people,” Swanson explained. “Accountability to the American people is the bedrock of our Constitution. Unfortunately, when Congress implemented the NAFTA Chapter 19 binational panel system into U.S. law, it created a system completely lacking in accountability to the American people.”

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