Congress finally voted to give the president what is officially called trade promotion authority [TPA], dumbed down to “fast-track” authority, for the next six years. This means the Trans Pacific Partnership [TPP] and other trade deals will still have to be approved in the Senate, and enabling legislation will have to pass in the House, but neither chamber will be permitted to amend the agreements. While business interests are pleased and labor and environmental groups are upset, the truth is this is the only way to get trade deals done.
This comes just 12 days after the House Democrats voted against the president, delaying the passage of the TPA. They don’t like the Trans Pacific Partnerhship, and so they sought to prevent it from happening by denying TPA to the president. Then, they could amend any deal to death. To do this, they voted against measures that would provide programs to train displaced workers, which the Republicans hate. So, the solution was to separate the two. TPA passed largely on Republican votes, and the workers’ bill probably get by with mostly Democratic votes and support from pork-seeking Republicans.
Senator Mitch McConnell (R-KY) said, “This is a very important day for our country. America is back in the trade business.” Meanwhile, Senator Bernie Sanders (I-VT), who is seeking the Democratic presidential nomination, said, “It is a great day for the big money interests, not a great day for working families.”
Outside Congress, “This looks like a big, strategic piece,” said Ian Bremmer, president of the Eurasia Group, a global risk analysis firm. “It’s a global strategy doctrine that will move the world in a direction that, in the long term, is useful for the investments of America.” Simon Rosenberg, president of the liberal think tank NDN, said, “All of a sudden, if you’re a student of history, you’re seeing him [President Obama] use all the tools in the toolbox in a far more traditional manifestation of American power than just bombing people into the Stone Age. The conventional wisdom in Washington on the way Obama approaches foreign policy is largely wrong and unfair in many ways.”
Interestingly, all of the commentators were not discussing the TPA but rather the deals on trade themselves. That is odd since the text of the Trans Pacific Partnership is still not publicly known. Members of the Senate may read it in a secure room without recording devices and without taking notes. Whether it is good, bad or indifferent is still an unknown. The same applies to more inchoate arrangements with Europe.
One cannot find an example of anyone discussing the TPA on its own. However, it is exceedingly important to understand that such authority is vital to any trade measures, as well as to many other foreign policy issues. The international system demands that each nation speak with but one voice. However, the American Constitution gives some foreign policy power to Congress in the form of appropriations and senatorial advice and consent on treaties.
This creates a tension whereby America has a duty to have but a single view while having to create it out of a separation of powers, and therefore of interests. The Vienna Convention on the Law of Treaties, which the US signed but has yet to ratify, states that once a treaty has been signed, no action shall be taken contrary to its term or that may undermine it. This applies whether the signatory has ratified the treaty in question or not.
So, if the American president signed a trade agreement, America must not do anything to undermine or and may do nothing contrary to it. Meanwhile, under the Constitution, the Senate could amend the treaty to death. Clearly, this is no way to run a foreign policy.
Love the Trans Pacific Partnership or hate it, the duty of America under international law (which the Constitution recognizes as part of the country’s fundamental law) can only be discharged with the Congress from time to time passing TPA legislation. And if Congress doesn’t like a treaty, they can still just vote it down. That gives the White House some incentive to take Congressional concerns into account.