Fast-Track: Enabler of the "Free Trade" Agenda: Fast-Track (Aka Trade Promotion Authority-TPA) Is a Direct Attack on Our Constitutional Checks and Balances and Has Been Key to Approval of All Our Free Trade Agreements

By Kenny, Jack | The New American, September 2, 2013 | Go to article overview

Fast-Track: Enabler of the "Free Trade" Agenda: Fast-Track (Aka Trade Promotion Authority-TPA) Is a Direct Attack on Our Constitutional Checks and Balances and Has Been Key to Approval of All Our Free Trade Agreements


Kenny, Jack, The New American


There is likely no historical record of a population drowning in alphabet soup, but nations in the 21st century appear to be working on it. Just as in baseball where you "can't tell the players without a scorecard," you might need a glossary to follow negotiations of free trade agreements.

By now, perhaps, most Americans know that NAFTA stands for the North American Free Trade Agreement, a trade pact purportedly passed to reduce and eliminate trade barriers among the United States, Canada, and Mexico enacted in 1993. Then came another round of negotiations on the General Agreement on Tariffs and Trade, and GATT begat the World Trade Organization (WTO), the international authority that rules on allegations of violations of trade agreements.

NAFTA begat CAFTA, or the Central American Free Trade Agreement. Also in the works is a General Agreement on Trade in Services (GATS). If you weren't following trade agreements closely, you might have missed the TRIP (Trade-Related Intellectual Property) and TRIMS (Trade-Related Investments) accords. Then there is the TPP (Trans-Pacific Partnership) and the TTIP, which is the Transatlantic Trade and Investment Partnership for increasing commercial ties between the United States and the nations of the European Union. The United States and FU have already established an HLWGJG, or High Level Working Group on Jobs and Growth, to find ways to increase cross-Atlantic trade and investment.

Giving the President Trade Power

But perhaps the most important initials for the United States, and for Congress in particular, are TPA. A campaign is under way for Congress to renew Trade Promotion Authority that requires "fast-track" approval or rejection of any trade agreement negotiated by the executive branch. In fast-track legislation, debate on an agreement is limited, and Congress may vote the pact up or down, but may not adopt or even offer amendments to the agreement.

The reason for this is obvious. Negotiating all of the provisions of a trade agreement is a long, drawn-out process, requiring concessions on all sides. None of the participants wants to see hard-won concessions in negotiations subject to alteration or repeal by amendments in Congress that would likely require a reopening of negotiations. Trading partners may be reluctant to negotiate an agreement without the assurance of a straight "up or down" vote when the package is presented to the people's representatives in Congress.

Opponents argue, however, that the authority is an unconstitutional usurpation of the legislative powers of Congress. The Constitution, after all, stipulates, in the very first sentence of the very first article: "All legislative powers herein granted shall be vested in a Congress of the United States." (Article I, Section 1)

It says nothing about suspension or abdication of that power. Further, the Constitution assigns to Congress the power "To regulate Commerce with foreign Nations." (Article I, Section 8)

There is in constitutional law a principal known as "the nondelegation doctrine," which, the Supreme Court has held, limits the ability of Congress to delegate its legislative authority to what is required by "common sense and the necessities of the government co-ordination." (J.W. Hampton Jr. & Co. v. United States, 1928) The doctrine was upheld in the court's 1998 decision in Clinton et al. v. City of New York, when the justices, in a 6-3 decision, rejected as unconstitutional the Line-item Veto Act of 1996. By authorizing the president to veto portions of tax and spending bills, the court ruled, the law violated both the non-delegation doctrine and the "presentment" clauses of the Constitution (Article I, Section 7), according to which Congress presents legislation to the president, who may sign (or let become law without his signature) or veto the entire bill. Though not dealing with Trade Promotion Authority, the logic of the court's decision suggests TPA has it backward: Congress may approve and/or amend a proposed trade agreement and the president may, with his signature or veto, vote it "up or down" (subject to congressional override by a two-thirds vote in each house in the case of a veto). …

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