Fast Track Calendar Means No Vote on TPP before February

Agathon Associates Calendar for Passing an Agreement under Trade Promotion Authority ("TPA").

Agreement is reached among the negotiating partner nations.
(In the case of the Trans-Pacific Partnership ("TPP') that happened in the early hours of Monday, October 5, 2015. TPP has not yet been signed.)

The Bipartisan Congressional Trade Priorities and Accountability Act of 2015 sets out certain deadlines--

• §106(a)(1)(A) President must notify Congress at least 90 days before entering (signing) an FTA.
  (Note that the President may "enter into trade agreements" but the agreements do not become effective in U.S. law until voted affirmatively in both houses of Congress.)

• §106(a)(1)(B) President must publish text of FTA at least 60 days before entering (signing) FTA.

• §106(a)(1)(C) President must submit description of changes to law to implement the FTA within 60 days of signing.

• §106(a)(1)(D) at least 30 days before submitting implementing bill to Congress the President must submit statement of administrative action proposed and final legal text of agreement.

• §106(a)(1)(E) President submits implementing bill.

• §106(a)(1)(F) Implementing bill passes. >§106(a)(1)(G) at least 30 days before agreement enters into force President submits notice to Congress that the partner(s) has/have taken necessary measures to comply.

That calendar places early to mid February as the soonest Congress can vote on the TPP. 2016 is an election year, and with trade being controversial, Congress could delay and take TPP up in a lame duck session after the November elections.

Agathon Associates Analysis of TPA in General.

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.

TPA in general--

• 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 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.

Clients of Agathon Associates, subscribers to Agathon Associates' Trade Advisor Service, and students in TMD 433 at the University of Rhode Island can learn more about TPA at http://agathonassociates.com/textile-pri/tpa/index.htm. You will need to enter your username and password. If you do not know your username and password email David Trumbull at david@agathonassociates.com.