Wednesday, December 4, 2013

And Now for a Brief, but Important, Lesson on Trade Promotion Authority

Claude Barfield's latest piece emploring the GOP to advocate free trade has a great rejoinder to the persistent-yet-silly arguments from some on the right that Trade Promotion Authority is unconstitutional or unconservative:
Two arguments explain the incipient dissent: one, though not stated openly, is a reaction against giving any kind of victory to the Obama administration; and two, on more substantive grounds, broader constitutional arguments have been raised against TPA as ceding congressional power to the executive and eroding national sovereignty. As for the personal and political distaste for giving Obama a victory, opposition to TPA - and thus, by extension ratifying TPP and TTIP - for Republicans is akin to the proverbial "cutting off your nose to spite your face." Ultimately, a defeat for TPP and TTIP, if and when they come before Congress, would represent a defeat for longstanding Republican policies and principles and a victory for those elements of the Democratic party that are deeply suspicious of globalization and global free enterprise (The Elizabeth Warren wing of the party would be ecstatic).

On the constitutional questions, despite claims from anti-global activists on the left (and right: viz., Pat Buchanan and Clyde Prestowitz), conservative judicial experts have consistently defended the limited grant of authority on trade from Congress to the Executive as within the bounds of the division of powers envisioned by the Founding Fathers.

They make two points: first, through the TPA process, Congress exercises the power to dictate specific negotiating goals, and it mandates constant consultations with congressional leaders during the course of extended bargaining sessions. Second, and of paramount importance, Congress through TPA reaffirms that the provisions of trade agreement cannot force changes in US domestic law. Legislation implementing trade agreements all contain the following language:

"No provision of the Agreement...which is inconsistent with any law of the United States shall have effect." "Nothing in this Act shall be amend or modify any law of the United States...unless specifically provided for in this Act."

A decade ago when similar questions were raised about the constitutionality of similar trade legislation, two legal experts with impeccable conservative credentials - former Attorney General Edwin Meese and Judge Robert Bork - both endorsed the Executive-Legislative partnership on trade agreements. As Bork wrote at the time: "No treaty or international agreement can bind the United States if it does not wish to be bound. Congress may at any time override such an agreement or any provisions of it by statute."

As Meese and Bork affirm, US sovereignty and congressional prerogatives are not threatened by TPA or the proposed new trade agreements. Thus, Republicans should get on with the job of reaffirming their traditional commitment to open markets and vigorous international competition.
The whole Barfield piece is worth reading, so be sure to check it out.  My only quibble: Republicans should support all forms of free trade, not just free trade agreements which require TPA.  Indeed, as I argued recently, unilateral liberalization of US trade barriers is not only an economic no-brainer, but also a manifestly constitutional, conservative and moral policy that any fan of free markets and limited government (I think that still means Republicans) should strongly support.  And, of course, my preffered free trade policy doesn't require messy reciprocal trade agreements, politically difficult TPA or the costly, Big Government things (*cough*TAA*cough*) that are so often attached to such measures.

Yet here we are, debating TPA and hoping against hope that somehow the President can complete new FTAs.  That seems... misguided.

(p.s. Bill Watson's recent review of Republicans and TPA is also worth your time.)

No comments: