The following first appeared in The Hill on March 21, 2018, under the title: How Congress Can Shut Down Trump's Latest Power Grab
In 2015, Trade Promotion Authority, commonly known as Fast Track, was voted down in the House of Representatives by a bipartisan majority. Then, multinational corporations teamed up with the Obama administration to do some arm-twisting, and it passed three days later by one vote. That initial defeat, and the ultimate demise of the Trans-Pacific Partnership, was thanks to the hard work of thousands of organizations and millions of people around the country standing up for democracy and a trade negotiating process that works for people and the planet, not just the big guys.
Fortunately, Fast Track expires in July. But, last Tuesday, the Trump administration applied for a 3-year extension of the law. Congress, already skeptical of the Trump tariffs on steel and aluminum, should exercise its authority and deny this request. Doing so would be a win, not just for fairer trade, but for democracy.
Under the Constitution, Congress has authority to set duties and regulate commerce with foreign nations. Over the years, it has ceded much of that authority to the president — and Fast Track is exhibit one. The legislation that forms the basis of current Fast Track laws was conceived by the Nixon administration in 1974.
According to Lori Wallach and Todd Tucker‘s book “The Rise and Fall of Fast Track,” John Connally said the Nixon administration approached executive-legislative relations in this way: “If the legislature wants to give you a new power — you take it. Put it in the corner like an old shotgun. You never know when you might need it.” One congressperson returned to this frame decades later, noting that “Fast Track operates like a gun to our head — no amendments, no reservations.”
Here’s what that means: Under Fast Track, trade agreements are not treaties, but instead a congressional-executive agreement, whereby Congress cedes much of its responsibility in exchange for advance notice of the intent to negotiate and approval of the negotiating objectives.
Congress then is required to give an up or down vote within 90 days of the agreement being signed by the president, with limited debate, meaning no filibusters and no amendments. While this might seem to be an acceptable trade-off were trade agreements limited to tariffs and quotas, that’s not what modern trade agreements are about. Indeed, since the Reciprocal Tariff Act of 1934, the president has already had that power. No, modern so-called free trade agreements are about changing domestic laws and rules in each country to conform to a similar standard, often lowering those standards to favor private trading corporations.
The Supreme Court debated whether a congressional-executive agreement is even constitutional in the case Made in the USA Foundation v. United States in 1999. The court declined to rule on the case, citing the political question doctrine, meaning they thought it was best left up to the president and Congress to sort out. Fast Track’s constitutionality was never decided by the court.
For many of us though, the fundamental assault on participatory democracy inherent to the negotiations is reason enough to oppose free trade agreements; never more so than in the Trump era. The advisory panel system has been sidelined and there have been no overtures for public consultation since the two-day public testimony prior to the initiation of NAFTA negotiations.
The Obama-era practice of providing opportunities for stakeholders, including civil society, to make presentations directly to negotiators has been abandoned. Negotiations with South Korea to significantly amend the KORUS trade agreement have proceeded without formal notice to Congress, meetings with committees, agreement on negotiation objectives or consultation with advisory panels. And the Trump administration still hasn’t appointed a chief transparency officer for trade negotiations as required by law.