Fast Track Is Unconstitutional

Toogood Reports ^ | December 5, 2001 | Phyllis Schlafly

[Starmaker]

Where are all those strict-constructionist Republicans who've been complaining about activist judges who don't respect the fact that the U.S. Constitution gives "all legislative powers" to the Congress? Don't those Republicans realize that it is just as unconstitutional to transfer legislative powers to the executive branch?

When it comes to legislative powers over trade matters, the U.S. Constitution is precise. Article I, Section 8, expressly grants Congress the sole power "to regulate commerce with foreign nations" and "to lay and collect taxes, duties, imposts, and excises."

The Bush Administration and some Republicans are trying to pass Fast Track, a bill to unconstitutionally transfer those commerce powers to the executive branch. Fast track would give the President and his appointees a blank check to make trade deals with foreign countries.

This isn't the first time that misguided Republicans tried to do an end-run around the Constitution by unconstitutionally transferring power to the President. During the 1980s and 1990s, we had to endure the persistent efforts of some Republicans to impose the Line Item Veto, which was patently unconstitutional, and the U.S. Supreme Court finally so ruled on June 25, 1998.

Newt Gingrich made the Line Item Veto a hallmark of the Contract With America and, for years, the Gingrich Republicans tried to make it a litmus test for fiscal conservatism. There was just one little problem: it was unconstitutional because it transferred to the President the power to change laws that Congress had passed.

In the hope of concealing the shady procedure of Fast Track, the Bush Administration has given Fast Track a sweeter-smelling name: Trade Promotion Authority. But Fast Track is exactly what this bill should be called because it will rush executive-branch agreements through Congress with mandatory deadlines, severely limited debate, no amendments allowed, only the chance to vote aye or nay, and rigging the process to evade the two-thirds treaty requirement in the Senate.

It's one thing for the President to push his agenda. But it's unfortunate that he has resorted to name-calling of those who disagree, as he did when he labeled them "isolationists" at his June 20 meeting with the Business Roundtable.

No doubt the managers of Fast Track in Congress will sanctimoniously use such arguments as "Don't you trust our President?" The response should be, Yes, we trust him to do what he said he would do, and he said his high priority under Fast Track will be to implement the Free Trade Area of the Americas Agreement, which would extend NAFTA to cover 34 Latin American countries.

When Bush signed the Declaration of Quebec City on April 22, he gave a "commitment to hemispheric integration and national and collective responsibility for improving the economic well-being and security of our people." It is clear that "our people" means all the people of the Western Hemisphere.

Bush pledged that the United States will "build a hemispheric family on the basis of a more just and democratic international order." He agreed to "the promotion of a Connectivity Agenda for the Americas (to) facilitate the beneficial integration of the hemisphere."

The Quebec Declaration is filled with United Nations doubletalk such as "sustainable development," "interdependent," "realization of human potential," "civil society," "international organizations," "reducing poverty," and "greater economic integration."

The media have never reported any public opinion polls on whether the American people want to be "integrated" with third-world, low-wage Latin American countries. The media don't ask questions when they don't want to report the answers.

Do we want to "integrate" our economies and currencies with Latin American countries, or assume the "national responsibility" to improve their "economic well-being"? Do we think that joining "a hemispheric family" with countries that do not respect the Rule of Law will give us "a more just and democratic international order"?

Even though Fast Track has not been voted on yet, the Bush Administration is behaving as though it has. Bush's U.S. trade representative Robert Zoellick just met in Qatar with 142 World Trade Organization countries, where he agreed to submit the United States to international rules to invalidate our anti-dumping laws that protect our industries against foreign governments dumping their goods on us at unfairly low prices.

An earlier version of Fast Track was in effect when Bill Clinton rammed NAFTA and GATT through Congress in 1993 and 1994. Hidden in the 22,000-page GATT was the 14-page charter putting us in the World Trade Organization, where we have one vote, the European Union 15 votes, and the Third World 80 votes.

Fast Track advocates are mute about the failure of NAFTA and GATT to live up to their rosy predictions. To most Americans, the most visible result is the current plan to flood our highways with Mexican trucks that haven't passed U.S. inspection for safety and insurance.

It would be a constitutional travesty for Congress to surrender what one federal court called "the unmistakably legislative power" to impose, modify, or continue tariffs and import restrictions. Fast track violates our separation of powers, diminishes American sovereignty, and infringes on the rights of Americans to engage in the trade of our choice.

[sheltonmac]

But, Phyllis, haven't you heard? There's a "war" on. We can't be bothered with insignificant matters like unconstitutional legislation. The American people are demanding that the man in control of the most powerful fighting force in the world be given as much power as possible, Constitution be damned. It is blatantly unpatriotic to utter even one syllable of criticism against our commander in chief. He only wants what's best for this country and we should remove all unnecessary constitutional restraints so he can do his job.

[Alas]

Article one section eight of the Constitution means as much to the congress as the writing of Paul does to the liberal Christians.

Alas

[Fiddlstix]

Thanks for the Ping

[Doctor Stochastic]

Actually Reagan also asked for Fast Track. Congress ought not to give this to anyone, although the Dems gave it to Reagan and Bush I and the GOP gave it to Clinton I. (Funny, Bush's last name is I, Elizabeth's last name is II, but Clausius's first name is I.)

[Dog Gone]

This is completely false and demonstrates a lack of understanding about the Constitution. Nothing in Fast Track takes away Congressional authority to approve or disapprove trade agreements.

The Constitution doesn't require Congress to negotiate the agreements. That is up to the Executive Branch. Fast Track doesn't give the Executive Branch the authority to enter into those agreements. They must still be approved by Congress. It only is an agreement by Congress that it will consider the trade agreement without introducing amendments.

Even that limitation doesn't prevent Congress from saying that it won't approve a trade agreement unless the Executive Branch makes changes to what has been negotiated.

The courts have upheld Fast Track. It is constitutional.

[tberry]

"Fast Track Is Unconstitutional"

Much of what the Bush administration is attempting is either unconstitutional or at best damaging to the principles of the Constitution.

[elfman2]

"…Nothing in Fast Track takes away Congressional authority to approve or disapprove trade agreements. The Constitution doesn't require Congress to negotiate the agreements..."

I tend to agree, and you said it better than I could. This fastidious rectal examination of Fast Track appears mentally unbalanced.

[redrock]

BUMP!!!

redrock--Constitutional Terrorist

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[Quila]

Article II, Section 2 says the President "...shall have Power, by and with the Advice and Consent of the Senate, to make Treaties." But Congress is also given power to "collect Taxes, Duties, Imposts and Excises." So if a treaty is about duties and excises, then where does the power lie?

A treaty carries with it force of law, so if Congress approves a treaty with powers in the realm of international commerce, it is also essentially passing a law on international commerce. That's the "Consent" part, and Fast Track appears Constitutional.

On the other hand, the Constitution does say "Advice" too. Fast Track would seem to do away with the "Advice" part (these days done through amendments, etc.), thus making Fast Track seem unconstitutional.

Also, looking at history, the power to make treaties was originally given to the Senate, and the president only added to the process just prior to ratification. Over the years, this has evolved into what it is today - an executive monopoly on negotiation.

It seems Fast Track would push the balance a bit too far to the executive, but it has been going in that direction since before the Constitution was even ratified..

[Inspector Harry Callahan]

Bump.

[George Frm Br00klyn Park]

DG, "To approve or disapprove trade agreements." is NOT the job of Congress. "To regulate commerce with foreign nations" and "to lay and collect taxes, duties, imposts, and excises." is the SOLE responsibility of Congress, and their JOB. It is the JOB of the head of the administration {The President} to "to approve or disapprove trade agreements." foreign trade agreements made by Congress.

"Fast Track" {Trade Promotion Authority} turns the separate Constitutional authority granted to Congress and the President upside down and backwards. The idea of administration "Fast Track" authority on foreign trade epitomizes the government envisioned by Orwell in his "1984" prediction{?}. Being a well educated lawyer, you MUST know that. What's the deal?? Peace and love, George.

[George Frm Br00klyn Park]

"It seems Fast Track would push the balance a bit too far to the executive, but it has been going in that direction since before the Constitution was even ratified.."

Q, And NOW would be a GOOD time to put a stop to it! NO FAST TRACK!!!. By the way, the "free" trade agreements made thus far are NOT "treaties", but "agreements". "Treaties" are the responsibility of the President and the Senate only. Let these make and be responsible for their "mistakes" and advances too. There are only 101 of them to be held responsible rather than 436. Peace and love, George.

[Dog Gone]

You are arguing that Congress is supposed to negotiate agreements with other countries. That is absurd.

If your interpretation were correct, we could have hundreds of Congressmen each negotiating on behalf of the United States with foreign countries.

That's not feasible and it's not what the Constitution requires. Congress enacts laws and it has oversight of Executive Branch activities.

There's a reason why Congress approves of Cabinet appointments. It is to empower them to conduct the business of the United States, including our discourse with foreign nations.

Yes, I am a lawyer and I have a very keen interest in the Constitution. There are many things that the Government does which it has no constitutional authority to do. Fast Track is NOT one of those.

[George Frm Br00klyn Park]

(1) "You are arguing that Congress is supposed to negotiate agreements with other countries. That is absurd."

(2) "If your interpretation were correct, we could have hundreds of Congressmen each negotiating on behalf of the United States with foreign countries."
-----------------------------------

DG, #1 How else do YOU "interpret" the words, "Congress shall have the power...... 'To regulate Commerce with foreign Nations.....'"??

#2 "My 'interpretation'" is that the body of Congress shall have the power to regulate {negotiate and finalize agreements for Presidential approval or disaproval}. NOT "each" Congresscritter.

Again, you are putting "interpretations" on the words of others. That must have been some law school that they taught you how to do that. Mind reading. NO FAST TRACK!! It IS un-Constitutional!!! Peace and love, George.

[Dog Gone]

So, you would have Congress, as a body, fly over to Jordan, for example, and negotiate a trade agreement?

[Quila]

From Art. I Sec 8, Clause 1, it seems Congress gets the right to put duties and tariffs on imports. This requires no negotiations or treaties, and is often done as a protective measure.

From Clause 3, they get to regulate commerce. Analyses of this clause that I've read mainly show it to mean that the right is reserved to Congress as opposed to the states and that Congress has the right to restrict it when it wants to (can't fly to Cuba, can't sell a supercomputer to China, etc.).

[KirkandBurke]

The whole Congress won't have to go. They've got these new fangled inventions; COMMITTEES. A congressional committee can be appointed to do the trade negotiating. Heck, they can even have legal staff and trade experts work with them. ;^)

[George Frm Br00klyn Park]

"So, you would have Congress, as a body, fly over to Jordan, for example, and negotiate a trade agreement?"

DG, LOL!! NO! but I would have representatives of the whole of Congress do so rather than the representatives of ANY one wo/man. Even the limited combined knowledge and wisdom of 535 people composing all of Congress {When compared to the knowledge and wisdom of the collective world} is preferable to the singular knowledge, wisdom, and agenda of a single person picking the representatives for such a mission. And, the word is "picking", NOT "approving or disapproving". AND, I would demand that public debate in Congress of each section of any agreement, and changes if necessary be allowed. The destructive {to the U.S. of A. sovereignty and citizens} of Fast Tracked "free" trade agreements thus far made by administration lackeys is, IMHO, an abomination. Peace and love, George.