第十八章：台灣的戰神
沒有強人可以盲目追隨的民主國家
註腳
【1】 陳詩璧，黃國昌電爆楊泰順 網友叫好，蘋果日報，2014年3月30日，http://www.appledaily.com.tw/realtimenews/article/new/20140330/369740/（最後瀏覽日：2016年5月12日）。
【2】 N.M. Const. art. II (“[The President] shall have Power,
by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds
of the Senators present concur...”).
【3】 Edwin Borchard, Shall the Executive Agreement Replace the Treaty
(1944). Faculty Scholarship Series. Paper 3499.
http://digitalcommons.law.yale.edu/fss_papers/3499 (“In recent years many
political leaders and publicists have sought to prove that the treaty-making
process, requiring the approval of two-thirds of the Senate, has become too
cumbersome, inefficient, and ‘undemocratic.’”).
【4】 Id. (“The movement received particular
impetus from, and finds its chief present source in, the belief that the
twothirds rule prevented American ratification of the Treaty of Versailles, and
thus, to use President Wilson's phrase, "broke the heart of the world.”).
【5】 Duncan B. Hollis & Joshua J. Newcomer, Political Commitment
and the Constitution, Va. J. Int’l L.,
49:3, 507, 548 (2008) (“Since 1792, when Congress authorized foreign postal
agreements, Congress has used its own enumerated powers to authorize the
president to conclude “congressional-executive” agreements with other nations. See,
e.g., Act of Feb. 20, 1792, § 26, 1 Stat. 236 (1792).”).
【6】 John C. Yoo, Laws as Treaties: The Constitutionality of
Congressional-Executive Agreements, 99 Mich.
L. Rev. 757, 758 (2000) (“According to most international law scholars
and authorities, however, both presidents easily could have evaded the Treaty
Clause by submitting their international agreements as statutes. Instead of
navigating Article II's advice-and-consent process, presidents have sent many
international agreements to both houses of Congress for simple majority
approval. Known as congressional-executive agreements, these instruments are
indistinguishable under international law from treaties in their ability to
bind the United States to international obligations.”).
【7】 Hollis & Newcomer, supra note 5 (“And President Franklin
D. Roosevelt’s insistence on transferring certain Russian assets under an
agreement with the Soviet Union—the Litvinov Assignment—led the Supreme Court
to recognize executive power to make sole executive agreements.” See
United States v. Pink, 315 U.S. 203, 229 (1942)”).
【8】 N.M. Const. art. VI (“ This Constitution, and the laws
of the United States which shall be made in pursuance thereof; and all treaties
made, or which shall be made, under the authority of the United States, shall
be the supreme law of the land.”).
【9】 Borchard, supra note 3 (“The Constitution refers only to
treaties, giving to them legal effect as the supreme law of the land, and says
nothing about Presidential executive agreements...Even ex-Supreme Court Justice
and exSenator Sutherland, whose dicta in the Curtiss-Wright 24 and Belmont
cases gave moral support to the new cult which attributes the force of a treaty
to an executive agreement, spoke of a protocol as an example of an executive
agreement, ‘without the formality of a treaty and constituting only a moral
obligation.’”).
【10】Const. art. I, § 8 (“The
Congress shall have power to lay and collect taxes, duties, imposts and
excises, to pay the debts and provide for the common defense and general
welfare of the United States; but all duties, imposts and excises shall be
uniform throughout the United States; To borrow money on the credit of the
United States; To regulate commerce with foreign nations, and among the several
states, and with the Indian tribes.”).
【11】Jane M. Smith, Daniel T. Shedd, and Brandon J.
Murrill, Why Certain Trade
Agreements Are Approved as Congressional-Executive Agreements Rather Than
Treaties, Congress Research Service Report for Congress, April 15, 2013 (“The
negotiation, entry into, and implementation of trade agreements implicates the
President’s Article II authority to negotiate treaties and international
agreements and to conduct foreign affairs, see
United States v. Curtiss-Wright Export Corp., 299 U.S. 319 (1936), and
Congress’s express power to impose duties and tariffs and to regulate foreign
commerce. U.S. Const., Art. I, §8, cls. 1, 3. Because of Congress’s express
power in this area, the President may not impose, reduce, or effect any other
change in existing duty rates through an executive agreement unless he has been
delegated the authority to do so by Congress.... ‘Indeed, when the President
exercises authority in regulating foreign commerce, he or she does so as
Congress’ ‘agent.’”).
【12】Overview of Bipartisan Congressional Trade Priorities
Act of 2014 Prepared by the Staff of the Senate Finance Committee and Ways and
Means Committee (‘Protects U.S. Sovereignty: New provisions affirm that trade
agreements cannot change U.S. law without Congressional action.”).
【13】Smith, Shedd & Murrill, supra note 11 (“As early
as 1890, Congress delegated tariff bargaining authority to the President and
authorized him to suspend existing duty-free treatment on particular items by
proclamation.”).
【14】Field v. Clark, 143 U.S. 649, 692-93 (U.S. 1892)
(“That Congress cannot delegate legislative
power to the President is a principle universally recognized as vital to the
integrity and maintenance of the system of government ordained by the
Constitution. The Act of October 1, 1890, in the particular under
consideration, is not inconsistent with that principle. It does not in any real
sense invest the President with the power of legislation. For the purpose of
securing reciprocal trade with countries producing and exporting sugar,
molasses, coffee, tea, and hides, Congress itself determined that the
provisions of the Act of October 1, 1890, permitting the free introduction of
such articles, should be suspended as to any country producing and exporting
them that imposed exactions and duties on the agricultural and other products
of the United States which the President deemed -- that is, which he found to
be -- reciprocally unequal and unreasonable. Congress itself prescribed in
advance the duties to be levied, collected, and paid on sugar, molasses,
coffee, tea, or hides, produced by or exported from such designated country
while the suspension lasted. Nothing involving the expediency or the just
operation of such legislation was left to the determination of the
President.”); Smith, Shedd & Murrill, supra note 11 (“The
Supreme Court subsequently held that the authorizing statute, Section 3 of the
Tariff Act of 18907 did not unconstitutionally delegate either legislative or
treaty-making authority to the President.”).
【15】William H. Cooper, Trade Promotion Authority (TPA)
and the Role of Congress in Trade Policy, Congress Research Service Report for
Congress, January 13, 2014 (“Two legislative events occurred in the
1930s that radically changed the shape and conduct of U.S. trade policy. The
first was the “Smoot-Hawley” Tariff Act of 1930 (P.L. 71-361), which set
prohibitively high tariff rates in response to U.S. producers seeking
protection at the outset of the Great Depression. The act led to retaliatory
tariffs by major U.S. trade partners, which severely restricted trade and
contributed to the deep and prolonged effects of the depression.”).
【16】Id. at
4 (“The
damaging effects of Smoot-Hawley prompted the second major trade legislative
event in the 1930s. Congress, with the guidance and encouragement of Secretary
of State Cordell Hull, himself a former Senator, developed and enacted the
Reciprocal Trade Agreements Act of 1934 (RTAA; P.L. 73-316). The RTAA
authorized the President to enter into reciprocal trade agreements that reduced
tariffs within pre-approved levels.”); Michael A. Bailey, Judith Goldstein,
Barry R. Weingast, The Institutional Roots of American Trade Policy:
Politics, Coalitions and International Trade, World Politics Vol. 49, No.
3, April 1997, 309-338, 316 (“The RTAA marks a turning point in American trade
history because first, it moved Congress away from legislating unilateral
tariffs, and second, it granted these bilateral agreements the status of
treaties without a two-thirds supermajority”).
【17】Cooper, supra note 15 (“In fact,
Congress passed a resolution in 1966 instructing the Johnson Administration against
negotiating “nontariff commitments.” When he ignored it, Congress declined to
implement the NTB changes, setting up the debate that would eventually be
resolved with the creation of the fast track authority for trade agreements.”).
【18】Id. at
3 (“While
delegating tariff-cutting authority,
Congress did not surrender broader trade authority and insured legislatively
against executive branch overreach by subjecting the trade agreements authority
to a limited time period, making such authority subject to periodic review and
renewal.”).
【19】Id. (“The Nixon Administration sought new authority
to negotiate the Tokyo Round in the GATT, which Congress granted in the Trade
Act of 1974 (P.L. 93-618). As before, the act provided the President with the
authority to enter into trade agreements that reduced or eliminated tariffs
within certain predefined parameters. The tariff modification authority in the
Trade Expansion Act of 1962 expired on July 1, 1967, but Congress did not renew
the authority for seven years as it debated legislative options. To address the
critical issue of agreements that required changes in U.S. law beyond tariff
modifications, the act stipulated that nontariff barrier agreements entered
into under this statute could only enter into force if Congress passed
implementing legislation.”).
【20】Id. (“Some in Congress, however, argued that
subjecting implementing legislation to ordinary congressional debate and
amendment procedures would defeat a major purpose for delegating trade
agreements authority to the President in the first place—to reduce the special
interest pressures inherent in trade policymaking.”).
【21】Id. (“Many Members also recognized an important
potential problem: that U.S. trading partners would be reluctant to negotiate
agreements that would be subject to unlimited congressional debate and
amendment.”).
【22】19 U.S.C. §
2191.
【23】Id.
【24】19 U.S.C.
§§ 3804(a) & 3807.
【25】19 U.S.C. §
3805.
【26】Cooper, supra note 15 (“In
exchange, Congress required the executive branch to consult with relevant
committees during the negotiations and to notify Congress 90 calendar days
before signing an agreement. The act also provided for the accreditation of 10
Members of Congress as advisers to the U.S. delegation of negotiators.”).
【27】J.F. Hornbeck & William H. Cooper, Trade
Promotion Authority (TPA) and the Role of Congress in Trade Policy, Congress Research
Service Report for Congress, April 7, 2011 (“Importantly, Congress has
been explicit that the fast track procedures “are enacted as an exercise of the
rulemaking power of the House and the Senate, with the recognition of the right
of either House to change the rules at any time.” This provision is one of many
that conveys a congressional priority in controlling the approval and
implementation of trade agreements.”).
【28】Smith, Shedd & Murrill, supra note 11 (“U.S.
trade agreements such as the North American Free Trade Agreement (NAFTA), World
Trade Organization agreements, and bilateral free trade agreements (FTAs) have
been approved by majority vote of each house rather than by two-thirds vote of
the Senate—that is, they have been treated as congressional-executive
agreements rather than as treaties.”).
【29】H.R. 3830 (113th): Bipartisan
Congressional Trade Priority Act of 2014; S. 1900 (113th): Bipartisan
Congressional Trade Priority Act of 2014.
【30】The Guardian, Unions Oppose Free Trade Deal 20
Years After Loosing Battle to Stop NAFTA, January 13, 2015 (“Up to now,
Congress has shown little inclination to grant Obama trade promotion authority
powers – called “fast track” – that allow only yes-or-no votes on trade
agreements with no amendments permitted.”).
【31】BBC, ‘Fast Track’ Trade Bill Passes US Senate
and Awaits Obama Nod, June 25, 2015, http://www.bbc.com/news/world-us-canada-33265241
(last visited June 09, 2016).
【32】Hornbeck & Cooper, supra note 27
(“Through TPA/fast track, in its various iterations, Congress has sought to achieve
four major goals in the context of supporting trade negotiations: (1) to define
trade policy priorities and to have those priorities reflected in trade
agreement negotiating objectives; (2) to ensure that the Executive Branch
adheres to these objectives by requiring periodic notification and
consultation; (3) to define the terms, conditions, and procedures under which
the President may enter into trade agreements and under which the respective
implementing bills are approved; and (4) to reaffirm Congress’s overall
constitutional authority over trade by placing limitations on the trade
agreements authority.”).
【33】Cooper, supra note 15 (“TPA reflects
decades of debate, cooperation, and compromise between Congress and the
executive branch in finding a pragmatic accommodation to the exercise of each
branch’s respective authorities over trade policy”).
【34】吳媛媛，吳媛媛：我們都把課綱想簡單了？──福利政策的反思系列二（中），天下雜誌，2015年6月10日，http://opinion.cw.com.tw/blog/profile/320/article/2942（最後瀏覽日：2016年5月12日）。
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