For much of our history, trade agreements were considered treaties. According to the Constitution they had to be ratified by a two-thirds vote of the Senate. The House does not participate in ratification of treaties (Article II, Section 2).
By the late 19th century Congress realized it was far too cumbersome to require a Congressional vote to change individual tariffs, so they delegated to the President the authority to use tariffs as a flexible tool in the exercise of foreign policy.
In the 1970s trade agreements stopped focusing on tariffs and began addressing an increasingly broad group of rules (e.g. procurement, copyrights and patents, product standards, subsidies, environmental standards) called non-tariff trade barriers. Modern multi-faceted trade pacts have more to do with pre-empting national, state and local rules that could favor communities or regional economies or domestic businesses or the environment than with lowering tariffs.
Article I, Section 10 of the Constitution gives Congress a little wiggle room by making a distinction between “treaties” and “agreements”. Congress can change the ratification process for agreements. But it is highly probable that the Constitution’s Framers would have expected Congress to do so only with respect to agreements of limited importance.
In 1974 Congress made clear it thought otherwise. That year Congress acquiesced to a dramatic reduction in its and by extension the citizenry’s authority over trade rules. Under the new procedure the President was allowed to unilaterally negotiate the final terms of a trade agreement. He would then present the final agreement to Congress, which would be unable to change it in any way and would have a limited time for debate. Instead of requiring ratification by a two-thirds vote of the Senate, trade pacts would require only a simply majority from both chambers.
In 1993 Congress ratified the far-reaching North American Free Trade Agreement (NAFTA) under the new fast track provisions. NAFTA not only limited national and state sovereignty over a variety of issues but it also established for the first time what has come be known as investor state dispute settlement procedures. Corporations, rather than only governments would have the right to sue. And they could sue for loss of potential profits. And they would do so via a new extra-territorial judicial system that favors commerce over community and corporations over governments.
The NAFTA vote in the US House of Representatives was close: 234-200. Three-quarters of Democrats voting against while 80 percent of Republicans voted in favor. The ratification process of NAFTA was challenged in federal courts, but the courts rejected the challenge, ruling in essence that Congress can at its discretion decide when a treaty is not a treaty and can make the process for ratification as undemocratic as it sees fit.
The authority to pursue fast track expired in 2007. But in December 2009, the United States Trade Representative (USTR), on behalf of the President, notified the country that the President intended to enter into negotiations for a regional, Asia-Pacific trade agreement as if that authority continued to apply.
Now the President is asking Congress to ratify his illegal use of the fast track.
Last week, after the House overwhelmingly rejected a trade assistance act that was formally tied to the approval of fast track authority it passed a standalone fast track bill by a tiny majority of 219-211. Eighty-five percent of Democrats voted against while 78 percent of Republicans voted in favor.
As Paul Ryan (R-WI) has noted, “We’re not talking about passing a trade agreement right now. TPP is still being negotiated. It doesn’t exist yet as an agreement. We’re talking about whether we can even consider a trade agreement...” Representative Ryan is correct that Congress is not voting on TPP. But he’s wrong that if fast track fails Congress will be unable to “even consider a trade agreement”. Of course it can. The question before Congress right now is about how transparent and democratic that consideration will be.
We the people would like it to be as transparent and democratic as possible. Public opinion consistently favors trade but just as consistently solidly opposes fast track. We oppose the remarkable, indeed unprecedented secrecy in which the trade pact has been drafted and the inability of the average citizen, unlike giant corporations, to play a part in that drafting. We condemn the prohibition against changing the document in any way after submission.
And perhaps most of all we are furious about fast track’s foreclosure of extensive and intensive debate on a complex document of far reaching consequence.
If fast track fails the President can still submit a trade bill. And we can then launch a much needed and long overdue national conversation about the benefits and limitations of trade and the dangers of ceding sovereignty to a new international constitution whose goal is to limit democracy and expand corpocracy.