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At the summit of Western Hemisphere leaders in Canada, G.W. Bush enthusiastically promoted the idea of a free-trade area encompassing all the countries of the hemisphere. He did so with the argument, also put forward in the final document of the summit, that free trade and democracy go hand in hand. This sounds good but, unfortunately, it doesn’t stand up under scrutiny — at least not with respect to the system of constitutional self-government Americans are supposed to enjoy.
Much of the debate about free trade has focused on its economic results, so little attention has been paid to its political implications. The truth is, however, that every so-called free-trade agreement requires the establishment of some administrative and bureaucratic mechanism to enforce its terms — and, to adjudicate disputes that arise concerning their observance and application. These mechanisms can affect many things that today fall under the purview of national and state or provincial legislatures, including things like the terms and condition of labor, health and safety regulations, environmental regulations and so forth. In the context of the demands being put forward by demonstrators both in Seattle and Quebec, leaders at the recent summit moved to acknowledge that issues of poverty and the relative distribution of economic benefits are also relevant to the free-trade agenda. One is led to wonder whether any area of economic life now governed by domestic law will not eventually be considered fair game for action in the free-trade arena.
In light of the potential breadth of the free-trade agenda, therefore, people who care about their freedom must thoughtfully consider whether the mechanisms being established to make decisions about that agenda meet the requirements of constitutional self-government. For example, the framers of the U.S. Constitution took great pains to establish a system of separate and co-equal branches of government, among which its distinctive powers are divided and shared in order to provide greater security against abuses. As it is presently developing, the free-trade arena is the domain of the executive branch, with Congress in a subordinate and consultative role. G.W. Bush is pushing, as his predecessors did, for even greater freedom from thorough congressional oversight, on the excuse that this is needed to expedite and stabilize the development of the international free-trade regime.
The result is a system in which decisions are taken and agreements fashioned through the executive, which are then handed to the Congress for cursory review and ratification. Under the GATT system, the specific details of each new round of free-trade arrangements were subject to this congressional review. In the new era of the WTO, however, new arrangements can be agreed to and implemented without congressional involvement, including, of course, administrative judgments that our chief executive is treaty bound to implement. In effect, this creates a supra-national legislative process in which the executive branch has the initiative and through which the executive can create facts that the national legislature cannot review or modify.
Though offered and debated under the guise of economic policy, this is, in fact, a profound constitutional change — one that dangerously alters the balance of power among the branches in the executive’s favor. It extends the ground of executive action to allow end-runs around the national legislature in any area where the executive can achieve agreement with other heads of government. Just as the interstate commerce clause of the U.S. constitution has been used to expand the legislative powers of the national government, so the free-trade mechanisms will be used to expand the legislative power of the national executive. This will allow the dangerous consolidation of the legislative and executive powers of government in one branch, just what the framers of the U.S. Constitution took such pains to prevent.
This reasoning lends a touch of irony to the apparently adversarial relationship between the heads of government in Quebec and the anti-free-trade demonstrators. The demonstrators who clamor for greater equity — and for regulations that address environmental concerns or issues of income and wealth distribution — may be creating a scenario in which these national chief executives are dragged kicking and screaming in a direction that greatly increases their control of economic and social policy in their respective countries. This means that, while he subscribes to ringing declarations that celebrate the great contribution of free trade to democracy, G.W. Bush promotes the establishment of international mechanisms that undermine the constitutional balance required to sustain representative self-government. He bears the label of the party that has traditionally sought to preserve American federalism against the expansionary ambitions of the U.S. federal government.
But does he, himself, represent the interests of an international regime that foreshadows the demise of that balance of powers upon which the whole constitutional system depends? We have to hope that his present enthusiasm for this regime is the result of a failure to understand and appreciate its implications. Otherwise, it may turn out that the election of this Republican president merely hastened the day when the American republic — like the old soldiers of MacArthur’s valedictory — simply fades away.