The Corner

Yes on Trade Promotion Authority . . . Which Does Not Mean Yes on the Trans Pacific Partnership

TPA is “Trade Promotion Authority” legislation currently being considered by Congress. TPP is the “Trans-Pacific Partnership,” the pact the Obama administration is currently negotiating with several Asia Pacific nations. As the editors point out today, the two are not one and the same and they should not be conflated.

The rationale that, because President Obama abuses executive authority, he should be denied any tool that enhances executive authority is a worthy rule of thumb. But its premise is that executive authority is actually being enhanced in a manner that Congress cannot check. That, as our editorial explains, is simply not true when it comes to TPA.

The contention that TPA is unconstitutional is meritless. In our system, as Jefferson put it, “the transaction of business with foreign nations is executive altogether,” and “exceptions are to be strictly construed.” In the case of trade agreements, those exceptions include the Senate’s power over the approval of treaties and the powers of Congress over both foreign commerce and any legislation necessary to implement a trade agreement. TPA is not only fully compliant with, but reinforcing of, this constitutional arrangement.

Foreign countries should not be made to negotiate with both the president and Congress in striking a deal. It is enough for them to know (as Senator Tom Cotton outlined in connection with President Obama’s Iran deal) that any agreement the president makes is subject to congressional approval if it is to have the force of law. Since the point of a trade agreement is to structure a legal framework for international commerce, we must thus infer that the countries negotiating such a deal want a workable legal structure. Our constitutional division of authorities between the president and Congress gives foreign nations an incentive not to press for terms the president will not be able to sell at home – thus strengthening the president’s negotiating position.

#related#Meanwhile, whether the international agreement in question is deemed a treaty or an agreement requiring implementing legislation, Congress gets the final say on whether the agreement is approved.

To claim that this deprives Congress of its ability to shape the deal is as specious as claiming that the president’s limited power to sign or veto legislation deprives him of the ability to shape congressional statutes. In our system, the president gets to negotiate deals with other nations; if Congress does not like the deal – if it concludes that the bad outweighs the good – lawmakers can and should vote “no,” sending the president back to the drawing board. That is how it is supposed to work.

To my mind, there is no more promiscuous practice in the formulation of multilateral agreements than the Senate’s addition of caveats and reservations to rationalize approving objectionable treaties. The way the international law game gets played, these caveats and reservations get marginalized and the “law” becomes the unadorned text of the treaty accepted by the signatory nations. That is, the treaty in effect becomes the agreement as signed by the president, not the ratified agreement the Senate thought it had successfully amended. We would be much better off if, instead of deluding itself with caveats and reservations, the Senate refused to ratify the treaty, forcing the president to either abandon the agreement or go back to the negotiating table and fight for acceptance of the Senate’s demands.

It is the same thing with multilateral agreements that are not regarded as treaties. There should be a clear international agreement that Congress can either approve or reject. To contort the agreement with legislative caveats injects ambiguity into the duties and benefits the negotiating nations believed they were agreeing to. Moreover, it probably won’t work: Within a short time, the international law professors will tell us that the text of the original agreement – not the agreement as Congress amended it – has transmogrified into binding international law . . . and the State Department will say we really have no choice but to accept the consensus of “the international community.”

Better to let the president make the agreements and let Congress say “yes” or “no” – and be ready to say “no,” not con itself into thinking it can materially improve a bad deal.

Finally, as the editorial elucidates, agreeing to TPA is not agreeing to TPP.

I confess to being troubled by reports about the secrecy in which TPP negotiations and drafts have been shrouded, although these reports may be overwrought – something I’ll address in a subsequent post. If there is, in fact, a lack of sufficient transparency on TPP, it makes perfect sense for lawmakers to condition support for TPA on better transparency. That kind of leveraging is a routine part of the legislative process. It is also especially appropriate when dealing with a president who has a long record of mendacity, lawlessness, and the exploitation of complex legal arrangements to reward cronies.

Nevertheless, if we assume for argument’s sake that TPP is a bad deal, that would be a good reason to vote down TPP. It would not be a good reason to oppose TPA.

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