Trade Promotion Authority is Not the Free Trade Utopia it Seems

The Republican establishment is willing to give Obama this unconstitutional power because they’ve been bought by big business. Slick lobbyists for the National Association of Manufacturers, the Chamber of Commerce, and the Farm Bureau, among others, have warned Republican members of Congress that if they do not vote for TPA, they will lose huge campaign contributions in their next election.

By Rachel Alexander | July 25, 2013

Photo: Larry Downing/Reuters

Thirty-five of the 36 House Republican freshmen in Congress have said they would like to provide President Obama with “Trade Promotion Authority” (TPA), which would allow him to “fast-track” the negotiation of reciprocal trade agreements, instead of wrangling through the specifics with Congress. Ostensibly, it would make free trade agreements easier to implement. TPA would prohibit Congress from filibustering or adding any amendments to the agreements, instead they would simply be voted up or down within 90 days. Foreign countries wouldn’t need to negotiate with 535 individual members of Congress. Congress would still be required to ratify any agreements, although only a simple majority vote would be required.

Past presidents have asked for and received trade agreement negotiating authority from Congress, including George W. Bush. TPA started under President Nixon, who wanted the authority to negotiate complex issues like government procurement and intellectual property laws. Republicans got TPA passed for Bush in 2002 over the objections of Democrats. Once passed, TPA stays in effect for five years. It has not been renewed since it expired in 2007.

Obama wants TPA in order to negotiate the Trans-Pacific Partnership (TPP) with eleven countries that are mostly located along the Pacific Rim, and negotiate the Transatlantic Trade and Investment Partnership (TTIP) with the European Union. It would be very difficult and time-consuming for him to negotiate those agreements without TPA. Should it become law, the TPP will be the largest free trade agreement in U.S. history, covering approximately 40 percent of the world’s economy.

Making free trade agreements easier to negotiate sounds good on the surface. Most Republicans in Congress support TPA, while most Democrats oppose it. But there are two reasons why TPA is a bad idea. First, it unconstitutionally transfers the powers of Congress to the Executive Branch. Secondly, some of these trade agreements aren’t really free trade as they’re being described.

Senator Sherrod Brown (D-Ohio), called out the hypocrisy of Republicans, “It’s pretty interesting that Republicans, anything that has Obama’s name on it, they oppose, but this they’re willing to give huge power to the White House – in terms of negotiation authority; in terms of allowing them to do it in secret, which is what much of these negotiations have been about; in terms of giving away, in the Senate, the process of holds and filibusters and 60 votes and all that, timelines, are all just punted away to the administration.”

Congress cannot give up its constitutionally mandated authority to the Executive Branch. The Constitution charges Congress, not the president, with regulating commerce. Article I, Section 8 of the Constitution provides in part, “The Congress shall have Power … To regulate Commerce with foreign Nations.”

The Republican establishment is willing to give Obama this unconstitutional power because they’ve been bought by big business. Slick lobbyists for the National Association of Manufacturers, the Chamber of Commerce, and the Farm Bureau, among others, have warned Republican members of Congress that if they do not vote for TPA, they will lose huge campaign contributions in their next election.

There is also a very real fear that so-called free trade agreements like TPP and TTIP will erode U.S. sovereignty, as happened to European countries after they joined the European Union. Some of these “trade agreements” are really masked efforts to integrate the economies and political systems of sovereign countries. A leaked draft of the TPP revealed that it would “surrender U.S. sovereignty to an international tribunal to adjudicate disputes arising under the TPP.”

TPP has been called “NAFTA on steroids.” NAFTA already went too far by permitting foreign corporations investing in the U.S. extra-legal rights to challenge American environmental, labor or consumer protections in foreign courts favorable to corporate interests, and the ability to demand taxpayers’ money for being held to the same standards as American businesses.

Giving the president the power to negotiate free trade agreements allows him to craft domestic non-trade policy, areas that are constitutionally delegated to Congress and the state legislatures. According to an article in Salon, “TPP’s 29 chapters would set binding rules on everything from service-sector regulation, investment, patents and copyrights, government procurement, financial regulation, and labor and environmental standards, as well as trade in industrial goods and agriculture.”

Two-thirds of House Democrats sent a letter to House Democratic Leader Nancy Pelosi and Ranking Ways and Means Member Sander Levin last month objecting on this basis, as well as to the secrecy of the negotiations. “Negotiations on the TPP FTA delve deeply into many non-trade matters under the authority of Congress and state legislatures. …The administration has yet to release draft texts after more than three years of negotiations, and the few TPP FTA texts that have leaked reveal serious problems,” the letter stated in part. Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee, is also calling for the secretive process to be opened to scrutiny.

With this much unfettered power granted to him, the president could add undesirable parts to the agreement unrelated to free trade. Two years ago, the Obama administration tried to attach $1 billion in “Trade Adjustment Assistance” (TAA) to a vote on the free trade agreement with South Korea. TAA provides money to those allegedly “hurt” by free trade. In reality, overly generous benefits are provided to a small fraction of laid-off workers.

The legislation has provoked an odd alliance of opponents. Some on the far left, such as Ralph Nader, oppose it on behalf of organized labor. The conservative right, including World Net Daily and the Tea Party, oppose it for sovereignty reasons and because they do not trust Obama. It is a bad idea to unconstitutionally transfer this much power to an extremely liberal president. As the Heritage Foundation characterized it, “TPA was never intended to be a blank check.” Flawed trade agreements should not be permitted to sail through Congress without extensive analysis, debate and a chance to amend the bad parts. As time consuming as it may be to get these kinds of agreements implemented through the traditional route, ultimately the end product will prove to be more protective of U.S. sovereignty and respecting of the balance of powers.


Rachel Alexander is the founder of the Intellectual Conservative and an attorney. Ms. Alexander is also a contributor to SFPPR News & Analysis.