Most of the recent discussion surrounding Trade Promotion Authority (TPA) has focused on the overwhelming distrust of the President from, well, pretty much everyone. Many fear that the President plans to use trade agreement back-doors to compromise US sovereignty and ram through environmental and immigration policies that would not have a chance of making it through the GOP-controlled congress. The most consistent critique of those who support TPA (other than the criticisms mistakenly applied to TPA, that were intended for the TPP… read this to clear up that confusion) is that we should not trust this President with more power given his track record of abusing authority and circumventing Congress.
The funny thing is that we completely agree.
And that’s why we support the TPA.
Those who treat TPA as an unprecedented empowerment of the President do so without the support of history – and there is a lot of history to contend with. The narrative goes that according to Article 1 Section 8 of the US Constitution, the President has no right to negotiate trade deals, his Article II powers of treaty negotiation notwithstanding.
This interpretation is not changing due to this week’s TPA vote – it changed 125 years ago with the McKinley Tariff Act, which empowered the President to unilaterally set tariffs with Congressional authority at his back. This delegation of authority was challenged and ruled Constitutional by the Supreme Court in 1892. From that time on, Presidents gained more and more unilateral trade negotiation and tariff imposition power, taking a giant leap forward under FDR with the Reciprocal Trade Agreement Act of 1934. The idea behind the centralization of negotiating power was similar to that of the Founders with treaty negotiation – it’s almost impossible to negotiate with a foreign nation when subjecting the final agreement to the knuckle-dragging and self-interested amendments of 535 warring legislators. No nation (or individual, for that matter) wants to sign an agreement, only to have a bunch of amendments tacked on post-ratification.
For almost a century, the President had vast authority to negotiate with foreign powers, and little accountability to Congress at all.
That all changed in 1974, when the Democratic congressional majority decided to push back against Republican President Richard Nixon by establishing their own priorities and terms for trade negotiation with the Trade Act of 1974 – the progenitor of and template for the modern TPA.
The Trade Act laid out Congressional trade priorities, and bound the President to abide by them during negotiations. It also set strict reporting requirements on the executive, and placed both houses of Congress in direct oversight before, during, and after trade negotiations. In return, Congress agreed to allow a vote on any negotiated agreements without amendment or filibuster – an insignificant concession given the fact that The Congress hadn’t used its constitutional authority on any trade or tariff negotiation for decades. The guarantee of an up/down vote from Congress gave the President the negotiating leverage by assuring foreign partners that a given agreement would last beyond the end of an administration – the single luxury that Presidents did not have prior to the passage of the ’74 Act.
Many of those discussing the 2015 TPA assume that in its absence, trade deals and foreign negotiations would revert back to the jurisdiction of Congress, and the President would be bound to futility for the duration of his term. But without overturning over a century of trade law and court precedent, that’s not going to happen. The President still has enormous legal authority for the negotiation of trade and tariff agreements, requiring zero Congressional oversight or approval. Whether this should be the case or not is irrelevant – the fact is that there is a strong legal background for such authority, and the courts have upheld challenges against it for over a hundred years. If TPA fails, trade agreements default back to the President – who has already shown that he will not hesitate to act unilaterally.
Consider the irony of Conservatives working to prevent the TPA and thereby returning unchecked negotiating power to a President who is already in the middle of negotiating a deal with Iran in total defiance of both houses of congress.
Who’s the trusting one?
The whole discussion reminds me of a long-forgotten scene from a long-forgotten movie whose franchise got a reboot this very weekend. In the critically-disdained Jurassic Park III, Dr. Grant’s young sidekick has stolen some raptor eggs, hoping that they will help fund a flailing research endeavor back in the states. Knowing the bereft raptors would soon come looking for the eggs, Dr. Grant seems ready to throw the eggs away, before reconsidering . Another character insists he get rid of the eggs, urgently asking “What if they catch us with them?” Dr. Grant, without missing a beat, turns and responds, “What if they catch us without them?”
This is the defining dilemma of the TPA. While there is of course a risk that a lawless executive will disregard some of the limitations set forth, without the limitations and congressional priorities defined in the TPA, President Obama is free to negotiate and sign the United States on to any trade agreement or tariff hike he sees as beneficial. This dangerous lack of congressional oversight is exactly what can breathe life into the corporate global Frankenstein that both conservatives and liberals currently fear.
While shockingly few of the internet warriors I’ve encountered have actually read the easily-available text of the TPA, there are a lot of important provisions that they would see if they did. Here are just a few of them.
- The TPA contains an extensive list of Congressional objectives that the President must pursue and deliver in order to retain trade promotion authority. Among the priorities listed in the current TPA are: protection of intellectual property, ending unfair currency manipulation among member nations, open US markets in other nations by ending access limitations imposed upon US businesses by other governments, and protect Israel against coordinated foreign boycotts.
- According to the terms of TPA, the promotion of any environmental policies through a trade agreement is limited to partner nations – exempting the US from any such imposition.
- The President must submit an annual report to Congress on the progress of any trade agreement toward the objective set forth in the TPA – failure to meet Congressional objectives is grounds for revocation of TPA.
- Any implementing law changes from any trade agreement must go through the normal legislative process.
- Requires that one member of each house of congress (chosen by that house) be credentialed as a member of the US trade delegation, providing a window for constant oversight by both houses of congress as negotiations progress.
- Establishes a new transparency officer to assist US Trade Representative in disseminating information about all proposed trade deals to the public. Specifically calls for soliciting public input on proposed trade deals.
- Requires that the President notify Congress of any new trade agreements he intends to negotiate at least 90 days before initiating talks.
- The President must submit a complete implementation plan to Congress when he submits the finalized agreement for consideration. Must contain budget, personnel, and all other implementation requirements, upfront.
- All finalized agreements must be publicly available online at least 60 days prior to a vote of Congress on the agreement.
- Any agreements which do not follow the terms of the TPA are null.
- Congress may withdraw TPA at any time if the President fails to follow all terms set forth in TPA – including reporting to Congress at the discretion of at least three different congressional committees.
- Dispute settlement panel rulings apply only to the terms of the trade agreement in question, and are explicitly stated to be non-binding to the United States. We comply with them if we feel like it.
Finally, Section 8 of the TPA, titled “Sovereignty” ensures that no trade agreement trumps standing US law. The opening paragraph reads as follows:
“United States law To prevail in event of conflict. — No provision of any trade agreement entered into under section 3(b), nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States, any State of the United States, or any locality of the United States shall have effect.”
Given the restrictive nature of the TPA and its binding effect upon the Executive Branch, one would think that passing the terms would be a no-brainer from a conservative standpoint – particularly when some of the most ardent adversaries of TPA are notorious right-wingers Nancy Pelosi, Harry Reid, and Elizabeth Warren. But unfortunately many conservatives have joined with the far-left to torpedo the TPA, thereby exposing America to the unbounded lawlessness of the Obama administration.
Unwilling to trust President Obama on gun rights, immigration, religious liberty, and in negotiating a deal with Iran, conservatives have insisted that their representatives in Congress bring him back within the bounds of the law and Congressional accountability.
It’s too bad that they trust him to negotiate international trade without those bounds.