Column on Fast Track from the Boston Post-Gazette Newspaper

Res Publica
Not So Fast!
by David Trumbull -- April 24, 2015

This week Congress started work on a Trade Promotion Act ("TPA"). Formerly called "fast track," TPA is an Act of Congress that authorizes the President to negotiate and sign a free trade agreement ("FTA") with another country or countries, with the provision that the FTA will be brought to congress for approval by both houses on an up-or-down vote with no amendments. TPA is important because no nation would negotiate with the U.S. if Congress, after the agreement is reached, could amend the agreement. TPA also puts a bill on a "fast track" in that it imposes a relatively compressed time schedule for consideration and vote on the bill.

My progressive friends say that fast track is a way to ram through Congress unpopular trade deals that kill U.S. jobs, grant special favors to nations with poor environmental and labor standards, and reward multinational corporations who, through a system of legalized bribery, have inordinate power in Washington. My TEA Party friends say that fast track is an unwise (possibly unconstitutional) handing over to the Executive of Congresses power to determine trade policy with a tendency to promote dangerous foreign entanglements. Both are, of course, at least partially correct.

What is fast track or TPA?

Under TPA procedures, a free trade agreement ( "FTA") is approved as a Congressional-Executive Agreements, rather than a treaty. This is due to the separation of powers under the U.S. Constitution --

• "[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." – Article 2, Sec. 2

• "Congress shall have power to lay and collect duties..." – U.S. Constitution, Article 1, Sec. 8

• "All bills for raising revenue shall originate in the House of Representatives..." – Article 1, Sec. 7

Therefore, an FTA is not, in the US, a "treaty." Treaties are negotiated by the President and approved by two-thirds of the Senate with no vote in the House. An FTA adjusts duties, which affects revenue and is therefore (Art. 1, Sec. 7) a "money bill," which must originate in the House.

Under TPA procedures the negotiation is entirely in the hands of the Executive (however Congress may include negotiations objectives in the TPA bill), but the President must negotiate an agreement that can get a majority vote in each of the houses of Congress, where his party may not have a majority.

TPA is important as a signal to our negotiating partners that Congress has confidence in the President to negotiate an agreement that can be passed by Congress.

TPA is also important as the bill provides a vehicle for Congress to instruct the President, via the negotiation objectives set forth in the TPA bill, as to what he needs to do to get those majorities in the House and Senate.

However, it is not the case, as some have said, that you must have TPA to do an FTA. If you have the votes to pass the FTA you have the votes in the House to bring the FTA up for a vote under a "closed rule," meaning no amendments are allowed. It is commonly stated that Senate does not have the "closed rule," however, that is clearly mistaken, as TPA is, effectively, a closed rule, and if the Senate can operate under a closed rule in the case of TPA it can find a way to use a closed rule without TPA. (Which brings us to one of Trumbull's maxims, "At any given time the rules are what the majority says the rules are.")

The U.S.-Jordan FTA was implemented in 2001, though not under TPA. It was passed by a voice vote in the House followed by a voice vote in the Senate.

Is fast track or TPA constitutional?

A federal appeals court held in 2001 that the issue of whether the NAFTA should have been approved as a treaty was a nonjusticiable political question (Made in the USA Found. v. United States, 242 F.3d 1300 (11th Cir. 2001)). The U.S. Supreme Court denied review in the case. In other words, if you think Congress violates the Constitution by treating FTAs as Congressional-Executive Agreements rather than as treaties, the only remedy is to elect a Congress that won't do that. But that won't happen because the people who object to fast track, progressive and TEA Party members will never work together to elect any one.

As early as 1890, Congress delegated tariff bargaining authority to the President and authorized him to suspend existing duty-free treatment on particular items by proclamation. The Supreme Court subsequently held that the authorizing statute, § 3 of the Tariff Act of 1890, 26 Stat. 612, did not unconstitutionally delegate either legislative or treaty-making authority to the President.