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.
“Anything to do with our current WH occupant must be viewed with suspicion.”
and what if Hillary gets the next 4-8 years?
...He [POTUS]shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
Yes, Congress can amend it as much as they want.
Yes, Congress can amend it as much as they want
Which is why trade agreements are not implemented as treaties but as congressional-executive agreements.
The time for congressional input on the negotiation is before it's concluded, If Congress doesn't like the way the President acted on their input they can choose not to approve the agreement.
That will mean Bill can start dating again.
I think we all understand the HERITAGE Report. However, that was then and this is now. People then, were not shaking in their boots under a Marxist.
Our country seems to be at a tipping point now. There is no tolerance for placing any more power in the hands of this president.
I don’t know why you people blow right past that. Fear matters. Did the Heritage Report measure that?
Don’t let yourself be used by TPP proponents trying to pass a mystery meat bill. TPA is a way for TPP, TTIP, and TISA to be crammed down with only a perfunctory period for public comment.
Those trade agreements need to be brought out to the open and stopped cold.
You know things are bad when even Democrats won’t empower their own prez. %8x)
As for Ed Meese. Defenders are having to reach into the Stone Age to find explainers that approve of Obama in the driver’s seat on this deal. Somehow, they all seem to think we are against a trade deal, per se. (Okay, so I’m approaching Stone Age.)
We don’t need a history lesson on Trade, or tutoring on process. We need a different president. No one can guarantee this one, and that fact should matter.
Stay dry, wherever you are! :)
No, we know about Obama.
But, this actually came about in 1992...right before Clinton. Now, Clinton ain’t as bad as Obama, but let’s not pretend that Far Leftist Presidents havent’ had this power.
True insult to everybody’s intelligence.
They (politicians) assume everybody as dumb as Obama voters.
Enjoy your chains.
I was just reading about Moochell going on a $600,000 vacation on taxpayer’s dime. If Bill gets back in the whitehouse, we will be paying for those dates. : (
I always enjoy my chains of thoughts. Thank you!
I hope you do the same with your chains.
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.
Lachlan Markay of the Washington Free Beacon looked into the group behind the anti- TPP website, ObamaTrade.com, and found it is funded by Curtis Ellis, the progressive three-time Dem candidate for Congress.
Curtis Ellis leads a group called the American Jobs Alliance that vehemently opposes the pending Trans-Pacific Partnership (TPP) and “fast-track” authority that would expedite its congressional consideration. Ellis calls the latter “ObamaTrade.”
Under threat of trade retaliation from Canada and Mexico, the House has voted to to repeal a law requiring country-of-origin labels on packages of beef, pork and poultry.Clink clink clink.The World Trade Organization rejected a U.S. appeal last month, ruling the labels that say where animals were born, raised and slaughtered are discriminatory against the two U.S. border countries.
Agriculture Secretary Tom Vilsack has said it's up to Congress to change the law to avoid retaliation from the two countries.
http://apnews.myway.com/article/20150611/us-congress-meat-labeling-11265046c4.html
Exactly. Just because it's Constitutional doesn't mean it's good. There's a ton of "Constitutional" stuff that's extremely bad for this country.
TPA forces bad provisions to remain, because the agreement can't be amended.
To me, this artificial creation of pressure to pass is just a bad idea in general.
Congress is supposed to be a deliberative body. So let them deliberate over all these provisions written and engineered by various special interests who, believe it or not, mihgt not have the best interests of the People in mind.
Let the world wait for the USA.
And if they want to proceed without us, then see where that gets them.
They ALL want access to our markets.
So let them wait, and let Congress slog through it like the deliberative body they're supposed to be.
"Hurry! Hurry! Hurry! It's an emergency! We have to get this done NOW or the universe will explode!"
What a crock...
Please cite the constitutional authority to create congressional-executive agreements.
Congress and the executive agree to approach problems via legislation all the time - that's what's happening here.
The issue seems to be that this is an international agreement, but I'm not aware of any constitutional problem with extending normal legislation to govern international interactions, and the federal courts have agreed.
These agreements have been how every trade deal since 1890 has been implemented, and there haven't been any successful challenges on constitutional grounds. I'm not a constitutional scholar but here's Ed Meese and the Heritage foundation explaining why in their view TPA is constitutional:
http://www.freerepublic.com/focus/f-news/3301189/posts
Here's another analysis giving some good history of these agreements:
The constitution does not allow the federal government to approach such problems by being creative.
If trade is not a treaty, then trade belongs to the states.
Since, we know the states could not do trade agreements, they must fall under one of the enumerated powers.
The federal government does not get to invent powers.
The courts have been wrong on this, like they have been on so many issues in the past.
The mere fact that they want to make it easier to pass a trade bill than to kill it should be all you need to know this is subversive to the process.
Since, we know the states could not do trade agreements, they must fall under one of the enumerated powers.
So you're seriously saying that the only way for the federal government to address international trade is via treaty? The House could never have any say in legislating international trade activity?
There have been over 5000 international agreements implemented this way, very few have been challenged and none have been ruled unconstitutional. And don't forget this isn't the act of one rogue Supreme Court - it's been the norm for over 100 years.
We can say everyone is misinterpreting the constitution but us, but when it's you vs. Reagan's attorney general it's probably more productive to deal with the reality - everyone that matters in our system say's congressional-executive agreements constitutional.
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.