4 Things You Didn’t Know About the TPP… Or is it the TPA?

The Far Left and the Far Right finally have something to agree on: opposition to the package of legislative endeavors leading up to what has been dubbed “Obamatrade”. The issue has given rise to the most bizarre coalitions, with Senators Rand Paul and Mike Lee joining Harry Reid and Elizabeth Warren in opposing the deal, and Sen. Ted Cruz and Rep. Rod Blum siding with President Obama and John Boehner to support it. Broad criticisms have been matched against vague praise, and nobody really seems to know what’s going on.

Meanwhile, social media has gone become a political Chernobyl – a radioactive chaos of arguments on an issue where the typical battle lines have become irrelevant. At least half of the conservative internet has simply decided to give a confused shrug and side with their presidential candidate of choice, using the rare alliances to leverage guilt by association.

The fact of the matter is that there is no conservative – or liberal – consensus on trade promotion authority or the Trans-Pacific Partnership. Good people are on all sides, with libertarians and conservatives split just as much as progressives. But despite a lot of intelligent people on both sides, there is a tremendous amount of confusion surrounding the whole thing, and the confusion is quickly turning to suspicion and animosity. International trade is a critically important issue, and so is national sovereignty – there’s no reason to give up on either of them by taking a side in this debate.

So before we line up our ships and broadside each other, let’s step back from this whole thing and make sure we have our facts straight. To that end, here are some lesser-known facts that have been trampled in the stampede of hyperbole blazing a trail across the conservative blogosphere.

1. The TPA is not the TPP. No really, they’re not interchangeable, and the differences are important. The bogeyman in this whole affair is the Trans-Pacific Partnership (TPP), an agreement between a total of 12 nations that together constitute over a third of Global GDP. The deal purports to strengthen free trade, address the growing intellectual property problems that US companies are encountering, establish labor and environmental standards in partner nations, and (unofficially) provide an economic counterbalance to China. While negotiations on the TPP have not yet been completed, concerns already abound that the administration could use the agreement to override US law on a wide array of issues – from corporate arbitration to gun rights. Trade Promotion Authority (TPA) or so-called “fast-track” status, establishes standards for the negotiation, review, and passage of the TPP, but is not part of the TPP itself. Different versions of the TPA have been passed many times under several different administrations since the Trade Act of 1974, which actually limited Presidential Authority in trade deals, and brought congress back into the equation. The terms set forth in the TPA are intended to increase foreign confidence in any finalized deal by foregoing the amendment process in final passage, as well as allowing Congress to set the negotiating terms for the President, and leaving final passage entirely in the hands of Congress by way of an up-or-down vote.
2. The TPP is not a treaty. Article II of the US Constitution clearly spells out that treaties with foreign nations can only be negotiated by the President, and require “advice and consent” from 2/3 of the Senate for ratification. The TPP will not be subject to such a vote, and therefore is not, and cannot be, a treaty. Rather, the TPP is a Congressional-Executive Agreement – recognized to be separate and distinct from treaties since at least 1890, when Congress delegated authority to the President to negotiate tariffs without congressional approval. This delegation of Congressional authority was challenged in 1892 before the Supreme Court in Field v. Clark, and was upheld (NOTE: this was not a case of judicial supremacy, since all three branches agreed upon the intent and application of the action). Since the TPP is not a treaty, it does not supersede other US Laws. It can’t destroy gun rights or parental rights or replace current immigration law. It’s an international handshake.
3. No, we don’t have to pass the TPP to find out what’s in it. For some time now this snide comment has been applied to the TPP, since the deal has been kept confidential by the administration while under negotiation. While the image of a heavily-guarded document in a secret Washington bunker a la National Treasure is provocative, it’s hardly the truth. Tons of information on the TPP is available through the office of the United States Trade Representative. It’s important to note that the TPP currently being discussed is still a draft – until it is brought up for Congressional review, the deal is still under negotiation. This means that the deal available now, will probably not be the deal voted on by Congress in a few months. Ironically, a recent article intending to highlight the secretive nature of the TPP ended up debunking the myth of inaccessibility. In a Breitbart exclusive, Sen. Rand Paul discussed his trip to the Chamber of Secrets to read the text of the TPP agreement, and detailed the harrowing measures necessary to access it. He and his staff were required to submit DNA samples at the door and accompanied at all times by a full detachment of armed marines.

   Just kidding.

   Actually, he and his legal staff waltzed right in – without so much as signing a non-disclosure agreement. They managed, according to Paul, to read through all 800 pages in 45 minutes. Paul came away saying he had more questions for the office of the Trade Representative, but mentioned no major concerns with what he found. In fact, his biggest criticism of the confidential nature of the TPP was that it hurt proponents of the trade bill by making it seem unnecessarily shushed. The text is accessible to all of Congress already. Additionally, (pending passage of the TPA), the President must post the finalized text of the TPP publicly for a review period of at least 60 days, prior to Congressional vote on the agreement – which leads to the final point…

4. The TPA is a tool of accountability, not an expansion of executive power. Outside the readily-available terms of the TPA, the President has the ability to negotiate sole-executive agreements that need no congressional approval whatsoever. This is the same approach that the Administration has already taken with Iran – sparking a massive bipartisan backlash in congress. Sole executive agreements, while certainly not explicitly Constitutional, have nearly a century of legal precedent, multiple Congressional initiatives to limit them having failed since the 1950s, and are virtually immune to legal challenge. Translation: If the TPA is not passed, the President can enter the TPP without Congressional consent anyway. The Trade Act of 1974, the predecessor to the modern TPA, was passed with the intent of bringing Congress back into an international discussion that had long been dominated by the Executive Branch. Under the Trade Act, the President was required to present the negotiated agreement for approval by both houses of Congress (as opposed to a treaty, which requires only Senate approval), as well as follow strict Congressional priorities and guidelines during negotiation. In return, Congress agreed to limit debate and amendment before the final vote, in order to allow timely passage of deals brokered with often-skittish and frequently-replaced foreign governments. The 2015 TPA is cast in the mold of its predecessor, requiring that the President make the final agreement text public a minimum of 60 days before it comes up for a vote in Congress, and maintaining a high level of Congressional input on the priorities and parameters of the agreement. In fact, the majority of the TPA text is about what the President must do, not what the President may do. For instance, the President must present any changes to the negotiated agreement before the Ways and Means Committee for at least 60 days so that they can review and consult with the President on any changes. This prohibits last-minute tweaks from being snuck through Congress. The rest of the text is equally limiting to the executive, placing extensive restrictions on the powers of the President in the trade negotiation and specifically calling out the right of Congress to revoke trade promotion authority at their discretion. Take this section:

   “Section 6(b)(3) and (4) creates a new Consultation and Compliance Resolution process for the Senate and House, respectively. The Consultation and Compliance Resolution is an additional mechanism to withdraw trade authorities procedures for legislation implementing a trade agreement when it does not comply with TPA, in particular because the President fails or refuses to consult, or the agreement fails to make progress in achieving the purposes, policies, priorities and objectives of the bill.”
   

   The above is just a single example of dozens of provisions legally binding the Executive to the terms laid out by the legislature. Dozens of other terms exist in the text. Those trashing the TPA should take the time to read it, and draw specific objections based on what is actually there, not what they think might be there.

There are valid reasons to support both the TPA and the TPP, and there are valid objections to both. But standing between the nation and honest debate on both of these measures, is a toxic atmosphere of bipartisan paranoia – counterproductive even if well-deserved. It’s understandable to distrust a President who has routinely exceeded his authority while in office. It is equally understandable to distrust the motives of anti-Capitalist progressives in the Senate who have routinely demonized and hampered American businesses. But when it comes to important decisions affecting millions of American workers and a third of the world’s economy, suspicions and doubts aren’t enough. Read, research, discuss, debate. The TPP could be a great trade bill, necessary for the advancement of American Industry in the wake of an increasingly unfair global market. Or it could be a terrible agreement packed with poison pills from a liberal president looking for help to push his domestic agenda past a hostile Congressional majority. Either way, we owe it to ourselves to get informed about the text of the TPA and the TPP, and make our decision based on facts, not fear.