TED CRUZ HQ: A Note to Conservatives on Trade Agreements

Senator Cruz entirely understands the widespread suspicion of the President. Nobody has been more vocal in pointing out the President’s lawlessness or more passionate about fighting his usurpation of congressional authority.

Senator Cruz would not and will not give President Obama one more inch of unrestricted power.

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.

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.

•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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

I remain less uninformed but as perplexed as ever on this subject. In addition to the material graciously supplied by Theoria, I took a look at Wikipedia in response to your reply and found the following:

"An executive agreement can only be negotiated and entered into through the president's authority (1) in foreign policy, (2) as commander-in-chief of the armed forces, or (3) from a prior act of Congress. For instance, it is as commander-in-chief that the President negotiates and enters into status of forces agreements (SOFAs), which govern the treatment and disposition of U.S. forces stationed in other nations. An executive agreement, however, cannot go beyond the President's constitutional powers. If an agreement was in the competence of the United States Congress, it would need to become a congressional-executive agreement or a treaty with Senate advice and consent. If an agreement was neither within the competence of Congress nor within the competence of the President (as for example an agreement which would affect powers reserved to the states), it could still be adopted by the President/Senate method but must not conflict with the United States Constitution. The Case Act required the president to notify Congress within 60 days of any executive agreements that are formed; that figure has since been changed to 20 days." (https://en.wikipedia.org/wiki/Executive_agreement)

This explains why they call this not an executive agreement but a congressional-executive agreement. It undoubtedly affects matters within the competency of Congress and therefore requires its assent.

A look further into Wikipedia under executive-congressional agreements reveals the following interesting and pertinent passage:

"Further, the Supreme Court has declared itself as having the power to rule a treaty as void by declaring it "unconstitutional", although as of 2011, it has never exercised this power.

The State Department has taken the position that the Vienna Convention on the Law of Treaties represents established law. Generally when the U.S. signs a treaty, it is binding. However, because of the Reid v. Covert decision, the U.S. adds a reservation to the text of every treaty that says, in effect, that the U.S. intends to abide by the treaty, but if the treaty is found to be in violation of the Constitution, then the U.S. legally can't abide by the treaty since the U.S. signature would be ultra vires." (https://en.wikipedia.org/wiki/Foreign_policy_of_the_United_States#Law)

I agree with Larry Tribe for once, if the Constitution requires a treaty to require 2/3% of the members of the Senate present, it cannot become a "treaty" by changing its label and requiring only 50% plus one consent of the Senate. However, in 1983 Law Review article (for some reason I cannot provide the citation) from Hofstra by Hyman demonstrates that this is a distinctly minority view. The article is very helpful but does not seem to supply information about the nature of the rights affected by an executive-congressional agreements and whether the rights or the agreement will prevail when in conflict.

The import of the article however is clear: the tendency by the courts has been consistently in favor of endorsing the supremacy of these agreements.

It seems that we are evolving in the same direction with international agreements (treaties?) As we have with domestic legislation made so infamous by Obamacare: the Congress passes thousands of pages of omnibus authorization leaving it to the executive branch to interpret, execute and, often, adjudicate. The broader the authorization, the easier for a compliant Supreme Court to recognize the agreement in preference to, for example, the Mercantile rights of an American corporation. Whether this practice will prevail over the Bill of Rights vouchsafed to an individual is a question apparently not yet fully explored in our jurisprudence.

Constitutional scholars may justify the trend but those of us who understand the framers regard for liberty and opposition to tyranny understand the grave dangers inherent in collapsing the Constitution and its safeguards.

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