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.
TPA is "Fast Track."
Hubby and I are disappointed to see that Ed Meese is supporting this trade bill nonsense. Not now, not with the botched roll-out they’ve produced, thus far, and NOT for 0blame-a.
If it’s so non-threatening and great, then let’s wait til we have a Republican President in and, hopefully, McConnell & Bonehead - the two Corporatists - out. Those two are as UN-trusted as 0bie.
NOTHING more to this Lyin’ King in Chief.
As others have pointed out, it lowers the bar to passage.
Right and I tend to agree with you...
However, the initial outrage came from a Leftist to create discord in the GOP.
I would say what you said, but about Pelosi...
Are you siding with the Unions?
In the last sentence, you said it all...this is moot if the GOP did it’s job. It won’t.
Great short list of The Ministry of Truth’s DoubleSpeak.
That's the intended outcome and primary reason I oppose FTA.
By the way, with TPA, the Congress will be updated about the agreement and can give input to any trade agreement during the negotiation period.
I would not count on this. You know obama has a history of bending rules when it suits him. Regardless of what is in the trade agreements if they are fast tracked they will be passed . Arguing that FTA will allow us to see them is pointless because by that point it will be too late.
As others have pointed out, it lowers the bar to passage.
Even worse, IMO. TPA guarantees TPP passage with 2/3 of Senate not up for reelection for 3 1/2 years or more. They will happily sell out main street for K Street cash under the assumption that this little brouhaha will be forgotten by the time they are up for reelection.
-PJ
>>People oppose it because it sucks for America and Americans<<
I oppose it on the basis of the lack transparency. This could be the deal of the century, but by not allowing the American people to read it in it’s entirety, it’s screams of abuse.
If you can’t bring it into the light, it must not pass.
Frankly I find it incomprehensible that any freeper would support legislation that Obama so desperately wants! Stunning really....
With TPA, the Congress will have a chance to oversee and give input during the negotiation period of trade agreements. So, they will be involved in the trade agreement already before the final vote.
So this must be why Obama wants so badly to have this passed. He desperately wants congressional oversight and the ability for congress to give input, and be fully involved, during the negotiation period....
thanks
I have tried to keep it straight
why would anyone want to give a POTUS esp, Obama extra authority?
How would this work in practice? Would each of the 535 have a seat at the table? How could anyone actually determine the US's position?
There's a reason the executive is given the authority to negotiate for the US, subject to the input and approval of congress.
Spot on!
Anything to do with our current WH occupant must be viewed with suspicion.
I agree, but with one major reservation. A modern day, anti-American pirate has managed to get himself elected as president. And the bottom line is that he probably wants to use his constitutional authority to negotiate treaties as a back door to unconstitutionally create new powers for himself outside the framework of the Constitution, powers that he likely wants to use to hurt the constitutional republic.
Note that my concerns about a president’s abuse of power to negotiate treaties are not based on paranoia but have been historically acknowledged by both Thomas Jefferson and the Supreme Court.
“In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise.” —Thomas Jefferson: The Anas, 1793.
“Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.” — Thomas Jefferson: Parliamentary Manual, 1812 .
And here’s a relevant Supreme Court case opinion excerpt.
“2. Insofar as Art. 2(11) of the Uniform Code of Military Justice provides for the military trial of civilian dependents accompanying the armed forces in foreign countries, it cannot be sustained as legislation which is “necessary and proper” to carry out obligations of the United States under international agreements made with those countries, since no agreement with a foreign nation can confer on Congress or any other branch of the Government power which is free from the restraints of the Constitution [emphasis added].” — Reid v. Covert, 1956 .
Also note that the Founding States had given the Senate the power to protect the states from corrupt presidents as evidenced by the Senate’s power to remove a House-impeached president from office (1.3.7). But as a consequence of the ill-conceived 17th Amendment, the corrupt Senate cannot be expected to do its job to protect the states from an activist president.
The 17th Amendment needs to disappear, and corrupt senators and a likewise corrupt president along with it.
Absolutely!
Check this article:
Leading Anti-’ObamaTrade’ Activist Is a Longtime Democrat Political Operative
By tailoring his disinformation to appeal to conservatives, the career Democrat operative is attempting to make the Trade Promotion Authority (TPA) and Trans-Pacific Partnership (TPP) toxic to Republicans.
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.