by Larry Laibson

The general public is significantly confused on the complex “alphabet soup” trade proposals being talked about in Congress and the Media. Something as important as this 11 Nation deal that encompasses a broad spectrum of areas, including but not limited to “Trade, should be transparent at least on its overall scope and general objectives.  The absence of this transparency, especially with the many time spoken goals of this President to “fundamentally change America” appears by design by both he and Congress to facilitate mutual objectives.

There are three items on the table: Trade Promotion Authority (TPA), Trade Adjustment Assistance (TAA), and Trans-Pacific Partnership (TPP) and this by itself has proven to be extremely confusing to many citizens and not clearly discussed.

Before and after critical recent Congressional votes, there have been many misleading or highly debatable statements by elected officials on both sides of the aisle further cloud the issue.

Whether you are pro or con multinational Free Trade Agreements, it is important to understand what is currently being addressed in Washington as there are significant long term implications.  All Presidential candidates should express their positions on this very important issue.

Background
First, it is imperative to understand the Constitutional issues that are involved, how they are being addressed and what Administration/Congressional motives may be as relating to the passage of the multinational trade deal.

Congress, not the President, has the Power “To regulate Commerce with foreign Nations” while the President, not Congress, “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties…”
There are two important implications here. A Treaty would require a 2/3 vote in the Senate while a Trade Deal would only require a majority vote!  This lowers the vote threshold in the Senate from 61 to 51…..a significant difference.

Since Congress is assigned the Power to regulate Commerce, they would need a mechanism to pass this Power to the Executive Branch and this mechanism is the Trade Promotion Authority (TPA).  To address potential impact on American workers who may be hurt by the trade agreement, funding for unemployment and other benefits would be addressed by a Trade Adjustment Assistance (TAA) Bill.

Remember, the President always has the Power to negotiate a Treaty.
In general, TPA sets ground rules for the President’s negotiations on Commerce, requires the President to present his final package, TPP, to the public for a 60 day “open” period before Congress votes on it in a Fast-track, “up-down” Vote, meaning Congress can vote either “Yes” or “No” but cannot change any provisions in the final TPP.  Senators and Representatives who are supporting TPA say “This provides necessary control because if we do not like parts of it we won’t vote for it.”

The Senate passed both TPA and TAA. June 12, 2012, the House rejected TAA, 302-126, but “passed” TPA on a very close, 210-211 vote (both need to be passed or TPA fails since the Senate package has both).
Speaker Boehner needs both the TPA and the TAA to pass to provide Fast-track authority.

Discussion
It is interesting to read or hear representative statements from GOP Congressmen after their recent votes on TPA. All support trade agreements (as I do) but give incorrect or misleading statements in defense of their “Yes” vote for TPA. Contrarily, one GOP Congressman, who voted “No”, gave a short and cogent statement of his concerns on expected actions by the President if TPP is ultimately passed.

Representative Ryan stated “TPA is about getting economic growth and jobs, but doing it the right way, adhering to the Constitution and holding the President accountable.

I agree on this in principle.

Representative Loudermilk incorrectly stated that the President had the Constitutional authority to negotiate the trade agreement. He then added that the wording of TPA was readily available for all to read.
Again, the President has the Constitutional authority to negotiate a “Treaty” not a “trade agreement”. TPA passes Congressional Power for the latter to the President under specific conditions.  Also, the wording on TPA was never in question as it was always readily available for everyone to read.  The concern of many was the 1000 page, 29 chapter, TPP which has been closely held by the President and just recently released with tight secrecy provisions to allow cleared Congressional members to read behind closed doors.  Most Senators and Representatives voting on TPA will not admit they have read TPP.
Representative Hice said “TPA prevents the President from negotiating Trade Deals without Congressional Direction, which includes 150 Congressional directives that the Executive branch must adhere to as it negotiates trade agreements on behalf of the United States and requires periodic reporting to Congress as to the status of trade negotiations. If the Congressional directives are not being adhered to, Congress has the ability to “switch off” TPA. Without the Congressional limitations included in the TPA legislation, any President would be free to negotiate however they choose.  Voting down the TPA bill would result in President Obama having zero constraints as he negotiates trade deals on behalf of our nation.  Because I do not trust this President, I am choosing 150 constraints over zero.”

Representative Hice’s argument is incredulous and ignores differences in Constitutional Powers given to Congress and the President.  Again, Congress, not the President, has the Power to regulate Commerce with foreign Nations while the President has the Power to make Treaties.
Accordingly, without any action on Congress’ part, the President’s negotiation on TPP could proceed as any other “Treaty” and could be presented to Congress where it would require a 61 vote (2/3 approval) in the Senate versus a 51 vote majority as would be required under TPA. As a Treaty, Congress would have the ability to modify provisions, which they will not have under TPA.

Contrarily, Representative Westmoreland so clearly stated after his “No” vote on TPA on June 12, 2015 “I strongly support free and fair trade, and my no vote on the Trade Promotion Authority (TPA) was not a reflection of the policy – it was about the lack of trust with this President. Having taken the opportunity to read the available sections of TPP, I don’t believe it would circumvent any existing laws in regards to global warming or immigration.  But the President’s past actions show no evidence of obeying congressional intent or that he would follow any of the guidelines set forth in TPA after TPP is passed.  During his six and a half years in office, President Obama has threatened to veto almost every major Republican bill and has refused to extend a hand of cooperation or compromise with Republicans on jobs bills and key legislation like the Keystone Pipeline or on the defense our nation, such as the National Defense Authorization Act.”

The status as of June 12, 2015 is that TPA/TAA is approved in the Senate. In the House, TPA is approved but TAA is rejected.
A potential plan of Boehner and fellow Republicans supporting TPA is to find the appropriate amount of payoff/funding to provide to TAA to satisfy Pelosi, other Democrats and the Unions and to bring TAA up for another vote.  If it passes, the TAA/TPA package would then be passed in both Chambers and the approved Bills would give President Obama the fast track on TPP.

The re-vote on TAA could be as early as June 16.

I have not seen any projections on when TPP would be completed, the 60 day “open review period” begun and Senate/House debates begun for the “up-down” vote if TPA/TAA passes. My projections, based on the relatively short time remaining in Obama’s term and his innate propensity for changing Congressional Law, are for near term completion of TPP and Congressional debate by September 2015.

My Thoughts
Congress is only holding President Obama “accountable” until TPP is passed. Obama’s “Pen” can and likely will make any change he wants after TPP is passed as he has on so many other Congressional Laws and which Congress has been totally ineffectual in stopping.

I urge Representatives to vote “No” on any reintroduced TAA. This would stop TPA from being passed and going to President Obama’s for his “Pen” which is ready and waiting to amend any future passed TPP to his personal satisfaction regardless of Congress’ strong protections and intent.

TPP negotiation should continue and be reintroduced to Congress either as a Treaty, requiring a 2/3 vote in the Senate, or under a new President who would, hopefully, not be expected to use Executive Pens and Agencies to modify passed Congressional Laws.

I would like to hear the explanation from the Republicans, both those supporting TPA/TPP and those opposing, on why this is not being treated as a “Treaty” and what steps Congress has built into TPA to address the expected President Obama’s unilateral changes to TPP when and if Congress passes it.

I would like to hear the positions on all Presidential Candidates for 2016 on TPP and the process leading up to its passage. So far, one of the people participating in its drafting, Hillary Clinton, is silent while her opponents, Sanders and O’Malley are against it.  Huckabee is concerned about fast track and Fiorina is concerned about its secrecy. Bush, Perry, Paul and Cruz support TPP.