Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Why Trade Promotion Authority is Constitutional
Heritage Foundation | November, 2001 | Ed Meese II, Todd Gaziano

Posted on 06/17/2015 8:39:34 AM PDT by TNMOUTH

Legal Memorandum #4 on Trade and Economic Freedom

Why Trade Promotion Authority is Constitutional By Edwin Meese III and Todd F. Gaziano - November 2001

Congress is expected to vote soon on whether to grant trade promotion authority (TPA) to President George W. Bush. Some critics of TPA have suggested that it might compromise national sovereignty and may actually be unconstitutional. But an important aspect of national sovereignty is the right to enter into international agreements and to participate in their enforcement. Being bound by agreements, such as mutual defense treaties, does not weaken sovereign power even though it obligates nations to abide by these pacts while they are a party to them.

Another aspect of sovereignty is the right of nations to withdraw from treaties that no longer suit them, although nations do not abandon most treaties over minor disagreements or unforeseen circumstances. America's NATO allies are now in a situation they never imagined: helping patrol our skies with NATO surveillance planes. Even as they shoulder this obligation, their assistance does not diminish their sovereignty or America's in any way. In fact, the NATO Treaty still makes each nation stronger than it would be by itself.

The concern some lawmakers have expressed, that TPA would somehow diminish American sovereignty, is misplaced. If anything, the opposite is true.

Why the President Needs TPA. By granting TPA to the President, Congress agrees to take a straight up-or-down vote on trade and investment agreements the President negotiates before June 1, 2005. Congress has extended TPA to the previous five U.S. Presidents, and such authority is granted by most other nations to their heads of state. Without TPA, the President is denied an equal footing when he attempts to negotiate trade agreements on behalf of America.

It is extremely difficult for any U.S. President to negotiate significant trade deals if he cannot assure other nations that Congress will refrain from adding numerous amendments and conditions that must then be taken back to the negotiating table. Congress has not granted TPA for seven years--which is one reason why the United States is a party to only three of 131 trade and investment agreements currently in force worldwide.

The TPA legislation currently being debated (H.R. 3005) is clearly constitutional because Congress retains its authority to approve or reject all future trade agreements. It might be unconstitutional if Congress tried to delegate its authority to approve the final deal--but that is not at issue. Congress may always kill any future international agreement by withholding its final approval. The only difference under TPA is that Congress consents not to kill the agreement by amendment (i.e., the "death by a thousand cuts"). The Constitution grants each house of Congress the authority to establish its own rules of procedure, and it makes perfect sense for Congress to limit itself to straight up-or-down votes on certain resolutions, such as base closures and its own adjournment motions.

Why Sovereignty Is Not Eroded. Some critics of TPA point out that a subsequent trade deal might submit certain disputes, including labor and environmental matters, to an international body such as the World Trade Organization. This, they argue, would undermine U.S. sovereignty. It should be noted that this is not an argument against TPA legislation itself but against a future, hypothetical trade deal that might be negotiated with the aid of TPA.

Although unrelated labor and environmental conditions do not belong in trade agreements, TPA legislation should not attempt to mandate or prohibit them outright. Under well-established constitutional rulings, it would raise serious constitutional concerns for Congress to try to mandate the President's negotiating positions. Moreover, some Members of Congress want to require labor and environmental protections in all future trade agreements, and others want to prohibit them in any future agreement. The President must be sensitive to these conflicting sentiments when he negotiates future trade deals if he wants congressional approval. TPA would assist him in trying to reconcile these conflicting desires. If he cannot negotiate agreements that satisfy both houses of Congress (as the TPA legislation requires), nothing will have been lost in granting him enhanced negotiating authority. But no one benefits if potentially satisfactory trade negotiations are strangled in the crib.

Future trade deals would not be unconstitutional, nor would they undermine U.S. sovereignty, if they contained an agreement to submit some disputes to an international tribunal for an initial determination. The United States will always have the ultimate say over what its domestic laws provide. No future agreement could grant an international organization the power to change U.S. laws.

A ruling by an international tribunal that calls a U.S. law into question would have no domestic effect unless Congress changes the law to comply with the ruling. If Congress rejects a ruling or fails to act, other countries might impose a trade sanction or tariff, but they are more likely to impose high tariffs now without any agreement. The fact remains that no international body or foreign government may change any American law. Moreover, Congress may override an entire agreement at any time by a simple statute. Nations also may withdraw from international agreements by executive action alone. That is one reason why such agreements do not interfere with the underlying sovereignty of each nation to chart its own course in the world. In short, the U.S. Constitution and any laws and treaties we enact in accordance thereto are the only supreme law of our land.

Finally, while labor and environmental conditions generally should not be a part of trade and investment agreements, submitting these issues to an international tribunal for an initial ruling is no different (constitutionally) from submitting any other type of dispute to such a body. Many important multinational agreements provide for disputes to be submitted to an international tribunal for its determination. Congress and past Presidents have concluded that these tribunals are effective overall in eliminating unfair trade practices that hurt American producers and consumers.

Conclusion. Whether a given trade agreement should include labor or environmental provisions or should provide for disputes to be heard by an international organization are questions of policy. Agreements that include such provisions are not unconstitutional and do not diminish national sovereignty. The only action that will weaken overall U.S. sovereignty is for Congress to hobble the President's ability to negotiate trade deals with other nations by denying him enhanced trade promotion authority.

--Edwin Meese III is the Chairman and Todd Gaziano is the Director of the Center for Legal and Judicial Studies at The Heritage Foundation.


TOPICS: News/Current Events; US: Texas
KEYWORDS: 2016election; cruz; election2016; heritage; mysterymeat; obamatrade; tedcruz; texas; tisa; tpa; tpp; ttip; wikileaks
Navigation: use the links below to view more comments.
first 1-2021-4041-6061-8081-86 next last
Long read but informative. For those who want to know...
1 posted on 06/17/2015 8:39:34 AM PDT by TNMOUTH
[ Post Reply | Private Reply | View Replies]

To: TNMOUTH

Nobody especially cares whether it’s Constituional. People oppose it because it sucks for America and Americans, and is bound to be gamed by insiders like every other damned thing in this corrupt government.


2 posted on 06/17/2015 8:43:12 AM PDT by Attention Surplus Disorder
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH

People need to stop disguising corporate welfare and statism as free trade.


3 posted on 06/17/2015 8:45:44 AM PDT by Shadow44
[ Post Reply | Private Reply | To 1 | View Replies]

To: Shadow44

If it’s such a wonderful deal, why hasn’t it been published ?


4 posted on 06/17/2015 8:49:25 AM PDT by Eric in the Ozarks ("If he were working for the other side, what would he be doing differently ?")
[ Post Reply | Private Reply | To 3 | View Replies]

To: Attention Surplus Disorder
Republicans with Conservative & Democrat help, pass TPA.

Nancy get's her mind right, Rinos & Dems pass TPP.

Conservatives vote no on TPP and claim it's passage it not their fault.

5 posted on 06/17/2015 8:49:55 AM PDT by TexasCajun (Hillary: Ethically Sleazy & Politically Stupid)
[ Post Reply | Private Reply | To 2 | View Replies]

To: TNMOUTH

Apart from “all previous presidents never promoted trade agreements” fallacy, why does this president need this special authority then? Can’t he do more with less?

Esp. these past 10 - 15 years, the name of any bill is exactly opposite of what it was intent to do.

Affordable Care, Community Restoration, Economic Stimulus, etc. etc. ....


6 posted on 06/17/2015 8:50:34 AM PDT by Sir Napsalot (Pravda + Useful Idiots = CCCP; JournOList + Useful Idiots = DopeyChangey!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH

Agreements need to be made available to review.

That does not mean that amendments can be made - but it does mean that whatever is negotiated in the agreement will be public before a vote. It would also have the effect of making sure that no amendments would be desired to the extent that the agreement would be denied.

We do not like the secrecy.


7 posted on 06/17/2015 8:51:58 AM PDT by Principled (Government Slowdown using the budget process!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH
Why Sovereignty Is Not Eroded. Some critics of TPA point out that a subsequent trade deal might submit certain disputes, including labor and environmental matters, to an international body such as the World Trade Organization. This, they argue, would undermine U.S. sovereignty. It should be noted that this is not an argument against TPA legislation itself but against a future, hypothetical trade deal that might be negotiated with the aid of TPA.

Perhaps the author is unaware of this case:

WTO Rules Against Country of Origin Meat Leveling in U.S.

Or maybe he's just a liar.

8 posted on 06/17/2015 9:01:49 AM PDT by Wolfie
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH

“It is extremely difficult for any U.S. President to negotiate significant trade deals if he cannot assure other nations that Congress will refrain from adding numerous amendments and conditions that must then be taken back to the negotiating table. Congress has not granted TPA for seven years—which is one reason why the United States is a party to only three of 131 trade and investment agreements currently in force worldwide.”

Given our current half-breed president, I’d say not giving him “trade authority” is a good thing!


9 posted on 06/17/2015 9:02:07 AM PDT by vette6387
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH

The fear is that “sovereignty”, today, under this president, now means only HIM.

What was true yesterday is NOT true today. We have evidence!

So, the defenders use the abused Constitution, the SCOTUS, and even George Washington, and now Ed Meese for the lipstick, when none of the above applies today, under this president, this Congress, this SCOTUS, this Asian “pivot”.
Including the damn bad timing.


10 posted on 06/17/2015 9:02:17 AM PDT by RitaOK ( VIVA CRISTO REY / Public education is the farm team for more Marxists coming)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Wolfie

“Or maybe he’s just a liar. “

I’ll take “LIAR” for $1,000 Wolfie!


11 posted on 06/17/2015 9:03:51 AM PDT by vette6387
[ Post Reply | Private Reply | To 8 | View Replies]

To: TNMOUTH

Thanks for this

I will read it later when I have time

Maybe they cover this but why is this something that has to be voted on for each trade deal?

I assume it was granted to other Presidents for other deals

Why does it have to come up again?


12 posted on 06/17/2015 9:05:34 AM PDT by woofie
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH; Eric in the Ozarks; TexasCajun
In case you didn't get the facts. TPA and TPP are different. TPA is not secret. TPP is not up for the vote. Please inform yourself and don't let yourself be used.

Here is the text of TPA:
Side-by-side Comparison of the 2002, 2014 and 2015 TPA Bills

Leading Anti-’ObamaTrade’ Activist Is a Longtime Democrat Political Operative

13 posted on 06/17/2015 9:07:33 AM PDT by Isara
[ Post Reply | Private Reply | To 4 | View Replies]

To: TNMOUTH

If TPA was constitutional Obama would be trying to circumvent it.

I’ve had enough of reading these long winded talking-point essays designed to placate conservatives. Let me read the treaty (and it most certainly is a treaty) whose passage TPA will make inevitable, or STFU.


14 posted on 06/17/2015 9:10:25 AM PDT by Junk Silver
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH

Climate change regulations will come in via this giant door, especially because of the up or down votes. While TPA restricts Congress from amendments, it doesn’t stop the Exec from cramming whatever it wants into the package.

Therefore, if Congress wants to strip something out by amendment, TPA makes it impossible.


15 posted on 06/17/2015 9:10:47 AM PDT by RinaseaofDs
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH

TPA proves the time has come to eliminate the ruling class and reboot.


16 posted on 06/17/2015 9:11:12 AM PDT by exnavy (socialism and communism are indistinguishable.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH
Phyllis Schlafly: Deal would separate us from Constitution and national sovereignty
17 posted on 06/17/2015 9:11:38 AM PDT by jpsb (Believe nothing until it has been officially denied)
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH

The thing about the Constitution is that is allows people to do badly ill-advised things if they want to. In this particular instance it is a case of our elected officials inflicting ill-advised things on an unwilling constituency.


18 posted on 06/17/2015 9:11:40 AM PDT by BlackAdderess ("Give me a but a firm spot on which to stand, and I shall move the earth". --Archimedes)
[ Post Reply | Private Reply | To 1 | View Replies]

To: TNMOUTH

A red hearing. Wrong argument. It is not a matter of constitutional right or wrong. It’s a matter of the U.S. Congress sherking it’s duty and giving a president (regardless of party) total control over what is negotiated, then only having the ability to approve or disapprove without any amendments.

The old saying, if you’re not part of the solution, you’re part of the problem!


19 posted on 06/17/2015 9:11:43 AM PDT by Bobby_Taxpayer
[ Post Reply | Private Reply | To 1 | View Replies]

To: Attention Surplus Disorder

The progressives wouldn’t even allow us to withdraw from the SALT treaties, after the USSR collapsed and ceased to exist. No one CARES if it ever benefits US! It will NEVER go away.


20 posted on 06/17/2015 9:11:48 AM PDT by alstewartfan ("The wheel of fortune changes everything. Don't lose your head now." "Riyadh" by Al Stewart)
[ Post Reply | Private Reply | To 2 | View Replies]


Navigation: use the links below to view more comments.
first 1-2021-4041-6061-8081-86 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson