NEW YORK – When it comes to free trade, Sen. Rand Paul, R-Ky., appears to be following in his father’s footsteps.
If President Obama attempts to get “fast-track authority” to push the Trans-Pacific Partnership, or TPP, through Congress before attending the summit meeting of the Association of Southeast Asian Nations, or ASEAN, in October, he can anticipate strong opposition from Rand Paul as well as from the senator’s father, former Republican congressman Ron Paul of Texas.
However, granting to the president fast-track authority violates the Constitution’s separation of powers, charges Washington-based attorney Bruce Fein, an adviser to Sen. Paul.
In a letter addressed to Rep. Walter Jones, R-S.C., Fein wrote that the “constitutionally illicit purpose of the Trade Promotion Authority legislation is to endow the President with a decisive vote over international trade legislation in violation of the separation of powers by usurping the power of the House to determine its own rules.”
“The Trade Promotion Act would give the President an overruling influence over Congress in exercising its power to regulate foreign commerce under Article 1, Section 3, and thus would be unconstitutional,” Fein wrote.
Ron Paul has a long history of opposing attempts by Congress to grant the president fast-track authority, or “Trade Promotion Authority,” as it is euphemistically called.
In 1998, he made a statement on the House floor opposing the granting of fast-track authority to President Clinton.
“The fast-track procedure bill," he said, according to the Congressional Record, "in addition to creating an extra-constitutional procedure by which international agreements become ratified, sets general international economic policy objectives, reauthorizes ‘Trade Adjustment Assistance’ welfare for workers who lose their jobs and businesses which fail, and creates a new permanent position of Chief Agriculture Negotiator within the office of United States Trade representative.”
On pages 111-112 of his 2001 book “Liberty Defined,” Ron Paul expressed similar conclusions:
Today, trade policy has been taken over by the executive branch and Congress graciously cedes this power. Transferring authority under fast-track legislation defies the intent of the Constitution. Trade treaties are not entered into, since senatorial approval by two-thirds would be required and more difficult to pass. This has led to international trade agreements such as WTO [World Trade Organization], NAFTA, and CAFTA that sacrifice national sovereignty to international governmental organizations.
WND has reported the Obama administration appears determined to ram through Congress not only the TPP but also a similar agreement with the EU, the Transatlantic Trade and Investment Partnership, or TIPP, a key part of a massive trade plan that transcends the vision for a “North American Union,” encompassing both Europe and Pacific Rim nations.
WND has also reported President Obama declared in his 2013 State of the Union address his intent to complete negotiations for a Trans-Pacific Partnership and announced the launch of talks “on a comprehensive Transatlantic Trade and Investment Partnership with the European Union.”
The reason Obama wants to obtain fast-track authority is to permit the administration to negotiate directly all arrangements under the TPP, restricting congressional prerogatives to an up-or-down vote, with the goal of passing it before or shortly after he leaves to attend the October ASEAN meeting in Brunei.
Fast-track authority is a provision under the Trade Promotion Authority that requires Congress to review a Free Trade Act, or FTA, under limited debate, in an accelerated time frame subject to a yes-or-no vote.
Under fast-track authority, there is no provision for Congress to modify the agreement by submitting amendments. Fast-track authority also treats the FTA as if it were trade legislation being negotiated by the executive branch, not as a treaty that would require a two-thirds vote from the Senate. The purpose is to assure foreign partners that the FTA, once signed, will not be changed during the legislative process.
Obama fights for TPP
A report released Jan. 24 by the Congressional Research Service, titled “The Trans-Pacific Partnership Negotiations and Issues for Congress," makes clear the Obama administration does not have fast-track authority to negotiate the TPP, even though the office of the U.S. Trade Representative is acting as if it were in place:
The present negotiations are not being conducted under the auspices of formal trade promotion authority (TPA) – the latest TPA expired on July 1, 2007 – although the Administration informally is following the procedures of the former TPA. If TPP implementing legislation is brought to Congress, TPA may need to be considered if the legislation is not to be subject to potentially debilitating amendments or rejection. Finally, Congress may seek to weigh in on the addition of new members to the negotiations, before or after the negotiations conclude.
The CRS report makes clear that the TPP is being negotiated as a regional free-trade agreement that U.S. negotiators describe as a “comprehensive and high-standard” FTA. The administration hopes it “will liberalize trade in nearly all goods and services and include commitments beyond those currently established in the World Trade Organization.”
The fact that the Obama administration is treating the TPP like a TPA and not a formal treaty obligation strongly suggests the Obama majority will seek passage of the TPP by a simple majority vote in Congress, not by a two-thirds vote of the Senate, as required for the ratification of a formal treaty obligation. Still, the impact of the TPP will be equivalent to a formal treaty obligation. Agreements made within the TPP will be enable regional authorities to supersede U.S. law.
One of the few remaining strategies left to opponents of the TPP is to make sure Congress rejects any fast-track authority.
International tribunal dispute resolution
A leaked copy of the TPP draft makes clear in Chapter 15, “Dispute Settlement,” that the Obama administration intends to surrender U.S. sovereignty to adjudicate disputes arising under the TPP to an international tribunal.
Disputes involving interpretation and application of the TPP agreement, according to Article 15.7, will be adjudicated by an “arbitral tribunal” composed of three TPP members whose purpose under Article 15.8 will be “to make an objective assessment of the dispute before it, including an examination of the facts of the case and the applicability of and conformity with this Agreement, and make such other findings and rulings necessary for the resolution of the dispute referred to it as it thinks fits.”
The TPP draft agreement does not specify that the arbitral tribunals must render decisions in compliance with U.S. law or that the decisions of the arbitral tribunals are invalid should such decisions violate or otherwise contravene U.S. law.
Investment disputes under the TPP appear to be relegated for resolution to the International Center for Settlement of Investment Disputes, an international authority created by 158 nations that are signatories to the ICSID Convention created under the auspices of the World Bank.
The TPP draft agreement specifies that foreign firms from Trans-Pacific signatory countries that seek to do business in the U.S. are exempt from American laws and regulations that would make doing business cost-ineffective, including certain environmental and financial disclosure regulations.
The Obama administration appears intent on creating a judicial authority higher than the U.S. Supreme Court, capable of overruling the decisions of U.S. federal courts regarding foreign corporations.
As a result, foreign companies could operate in a legal and regulatory environment that would give them decided economic advantages over U.S. companies, which would remain subject to American laws and regulations.
Ignored by Romney
During the 2012 presidential campaign, Republican challenger Mitt Romney never made the TPP into a major campaign issue by questioning the authority or intentions of the Obama administration – not even to refute Obama charges that Romney was a “vulture capitalist” who sought to outsource U.S. jobs to the detriment of U.S. workers.
Moreover, his strategists enthusiastically supported the Obama administration’s pursuit of TPP negotiations, objecting only that Japan should not be permitted to join the discussions until it opens its markets more to U.S. competition.
Last month, Japan entered the TPP negotiations as part of Prime Minister Shinzo Abe’s plan to restore Japan’s economy, which has suffered a prolonged downturn since the collapse of its real estate market in the 1990s.
The TPP currently includes Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, Japan and the United States, nations that together comprise roughly 40 percent of global domestic product and about a third of world trade.
Fast-track authority expired in 1994, but only after President Bill Clinton pushed through Congress the North American Free Trade Agreement in 1993 and what was then known as the “Uruguay Round” of the General Agreement on Tariffs and Trade, or GATT treaty in 1994. In 1997, and again in 1998, the House of Representatives blocked legislation to grant Clinton the fast-track authority he desired to negotiate anticipated free-trade agreements in Latin America and Asia. Fast-track authority was restored by the Trade Act of 2002 under President George W. Bush, only to expire July 1, 2007.
Attorney Fein has represented Edward Snowden in the current controversy over Snowden’s flight to Russia after leaking classified or otherwise confidential National Security Agency information about surveillance practices regarding U.S. citizens.
On June 13, in a press conference attended by Fein, Sen. Rand Paul announced his intention to challenge the constitutionality of the court order that set the stage for the NSA to collect “all American cell phone data all of the time.”
Fein graduated from Harvard Law School with honors in 1972. After a federal judicial clerkship, he joined the U.S. Department of Justice, where he served as assistant director of the Office of Legal Policy. He also was the assistant counsel of the Federal Communications Commission, followed by an appointment as research director of the Federal Communications Commission. He has worked for the American Enterprise Institute and the Heritage Foundation. He currently practices law as Bruce Fein & Associates Inc. in Washington, D.C.