Why Trade Promotion Authority is Constitutional

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.

There have been a lot of questions and concerns about the ongoing Pacific trade negotiations. Many of those concerns, fueled by the media, stem from confusion about Trade Promotion Authority (TPA) and the proposed Trans-Pacific Partnership (TPP). Let’s unpack the issues one by one.

What are TPA and TPP?
TPA stands for Trade Promotion Authority, also known as “fast track”. TPA is a process by which trade agreements are approved by Congress. Through TPA, Congress sets out up-front objectives for the Executive branch to achieve in free trade negotiations; in exchange for following those objectives, Congress agrees to hold an up-or-down vote on trade agreements without amendments. For the past 80 years, it has proven virtually impossible to negotiate free-trade agreements without the fast-track process.

TPP stands for Trans-Pacific Partnership. TPP is a specific trade agreement currently being negotiated by the United States and 11 other countries, including Canada, Japan, Australia, and New Zealand. China is not a negotiating partner. There is no final language on TPP because negotiations are still ongoing and have been since late 2009. Neither the Senate nor the House has voted yet on the TPP. There will be no vote on TPP until the negotiations are over and the final agreement is sent to Congress.

Some Key Facts:

Neither the Senate nor the House has voted yet on the TPP.
Congress is the only entity that can make U.S. law and nothing about TPP or TPA could change that.
TPA gives the Congress more control up-front over free trade agreements.
TPA mandates transparency by requiring all trade agreements (including TPP) to be made public for at least 60 days before the Congress can act on them.

Does TPA give up the Senate’s treaty power?
No. Under the Constitution, there are two ways to make binding law: (1) through a treaty, ratified by two-thirds of the Senate, or (2) through legislation passed by a majority of both Houses of Congress. TPA employs the second constitutional path, as trade bills always have done. It has long been recognized that the Constitution’s Origination Clause applies to trade bills, requiring the House of Representatives’ involvement.

Does the United States give up Sovereignty by entering into TPP?
No. Nothing in the agreement forces Congress to change any law. TPA explicitly provides that nothing in any trade agreement can change U.S. law. Congress is the only entity that can make U.S. law, and Congress is the only entity that can change U.S. law. Nothing about TPP or TPA could change that.

Does Senator Ted Cruz support TPP?
Senator Cruz has not taken a position either in favor or against TPP. He will wait until the agreement is finalized and he has a chance to study it carefully to ensure that the agreement will open more markets to American-made products, create jobs, and grow our economy. Senator Cruz has dedicated his professional career to defending U.S. sovereignty and the U.S. Constitution. He will not support any trade agreement that would diminish or undermine either.

Does Senator Ted Cruz support TPA?
Yes. Senator Cruz voted in favor of TPA earlier this year because it breaks the logjam that is preventing the U.S. from entering into trade deals that are good for American workers, American businesses, and our economy. Ronald Reagan emphatically supported free trade, and Senator Cruz does as well. He ran for Senate promising to support free trade, and he is honoring that commitment to the voters.

Free trade helps American farmers, ranchers, and manufacturers; indeed, one in five American jobs depends on trade, in Texas alone 3 million jobs depend on trade. When we open up foreign markets, we create American jobs.

TPA also strengthens Congress’ hand in trade negotiations, and provides transparency by making the agreement (including TPP) public for at least 60 days before the Congress can act on any final agreement. Without TPA, there is no such transparency, and the Congress’ role in trade agreements is weaker.

Is TPA Constitutional?
TPA and similar trade authority has been upheld by the Supreme Court as constitutional for more than 100 years.

Does TPA give the President more authority?
No. TPA ensures that Congress has the ability to set the objectives up-front for free trade agreements.

Trade Promotion Authority has been used to reduce trade barriers since FDR. When Harry Reid took over the Senate, he killed it. History demonstrates that it is almost impossible to negotiate a free-trade agreement without TPA. Right now without TPA, America is unable to negotiate free-trade agreements, putting the United States at a disadvantage to China, which is taking the lead world-wide. It is not in America’s interests to have China writing the rules of international trade.

Moreover, Obama is going to be president for just 18 more months. TPA is six-year legislation. If we want the next president (hopefully a Republican) to be able to negotiate free-trade agreements to restart our economy and create jobs here at home then we must reinstate TPA. With a Republican president in office, Senate Democrats would almost certainly vote party-line to block TPA, so now is the only realistic chance.

How can Senator Cruz trust Obama?
He doesn’t. Not at all. No part of Senator Cruz’s support for TPA was based on trusting Obama. However, under TPA, every trade deal is still subject to approval by Congress. If the Obama Administration tries to do something terrible in a trade agreement, Congress can vote it down. And most congressional Democrats will always vote no—because union bosses oppose free trade, so do most Democrats—which means a handful of conservative congressional Republicans have the votes to kill any bad deal. That’s a serious check on presidential power.

Isn’t TPP a “living agreement”?
That particular phrase—a foolish and misleading way to put it—is found in the “summary” portion of one particular section of the draft agreement. That section allows member nations to amend the agreement in the future, expressly subject to the approval of their governments. Thus, if some amendment were proposed in the future, Congress would have to approve it before it went into effect.

But isn’t TPA a secret agreement?
No, it is not. The full text of TPA (fast track) is public. What the Senate just voted for was TPA, not TPP.

Right now, the text of TPP is classified. That is a mistake. Senator Cruz has vigorously called on the Obama administration to make the full text of TPP open to the public immediately. The text being hidden naturally only fuels concerns about what might be in it. Senator Cruz has read the current draft of TPP, and it should be made public now.

Critically, under TPA, TPP cannot be voted on until after the text has been public for 60 days. Therefore, everyone will be able to read it long before it comes up for a vote.

Couldn’t Obama use a trade agreement to grant amnesty to illegal immigrants?
No. There is one section of TPP that concerns immigration, but it affects only foreign nations—the United States has explicitly declined to sign on to that section.

Moreover, Senator Cruz introduced a TPA amendment to expressly prohibit any trade deal from attempting to alter our immigration laws.

Two Republican Senators (Lindsey Graham and Rand Paul) blocked the Senate’s consideration of that amendment, but the House of Representatives has agreed to include that language in the final text of the trade legislation. Thus, assuming the House honors that public commitment, federal law will explicitly prohibit any trade deal from impacting immigration.

And, regardless, no trade agreement can change U.S. law; only Congress can change U.S. law.

That is how the Founders wanted it. Equal branches of government having equal input into any agreements. The President does not have the power to negotiate on behalf of this nation by himself. Congress gets to add their input....especially at the end, before the deal is complete....and certainly not in a "take it or leave it" vote.

Without TPA, the President is denied an equal footing when he attempts to negotiate trade agreements on behalf of America.

Boo-hoo! Our President does not speak for the nation or have more power than anyone else. If other nations like dictators, let them have them...we do not need to follow suit.

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.

LIE!!! It takes only 51 votes to approve a trade deal and 60 to kill it versus the Constitutional 67 to ratify.

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.

Unfortunately, this is not a resolution....but a binding TREATY with another nation....and Congress does not have the authority to change its Constitutional powers, which specifically say a treaty must be ratified by 67 votes in the Senate.

The bottom line here folks, is that there is a whole lotta money involved in these trade deals. Many people are going to enrich themselves. They will kick some of that money into the campaigns of those who support this travesty.

But, because the old, outdated Constitutional method for ratifying agreements with other nations is too DIFFICULT, the greedy have conspired together to shortcut the Constitutional protections and create this Fast Track nonsense so they can ram through trade deal after trade deal with little or no consideration for the welfare of this nation or its citizens.

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