By Joel D. Joseph, Chairman, Made in the USA Foundation
The Senate passed Trade Promotion Authority (TPA) 62-38 giving President Obama the authority to negotiate the Trans Pacific Partnership and other trade deals. This TPA legislation is clearly unconstitutional. The President of the United States is required to submit all proposed treaties to the United States Senate for approval under the Constitution and approval must be by a two-thirds vote.
The Constitution provides in Article II, Section 2, Clause 2: "He (the President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur."
The first question is whether the Trans Pacific Partnership is a treaty. There are some minor international agreements other than treaties that the Supreme Court has allowed. However, these lesser agreements were entered into under the President's power to receive ambassadors. The President's proposed Trans Pacific Partnership does not involve his power to receive ambassadors, nor any other presidential power except the treaty clause and thus cannot be implemented without Senate approval by a two-thirds vote.
Black's Law Dictionary defines a treaty as "an agreement between two or more independent states." By independent states the dictionary means nations. It is hard to imagine agreements that are more important than a trade agreement with 11 nations. If the treaty clause has any meaning left it must be applied to this agreement because they will outlive President Obama's term of office and will affect the nation for decades to come. This is not a simple agreement that the President can enter into by himself, or with a simple majority in Congress.
Agreements involving international trade are no less treaties than those involving war and peace. The first U.S. trade agreement in a treaty was the Jay Treaty, or more formally, The Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America entered into in 1795 with two-thirds Senate approval. Since this was enacted soon after the Constitution was approved, the treaty clause was fresh in the country's mind. Two hundred and thirty years later, however, we have disregarded the treaty clause.
Ignoring the Treaty Clause
The North American Free Trade Agreement bypassed the treaty clause because it failed to achieve two-thirds Senate approval. It was signed by President Clinton as simple legislation, not as a treaty. The Made in the USA Foundation and the United Steelworkers Union challenged NAFTA under the treaty clause. The 11th Circuit Court of Appeals found that we had raised a "political question" and would not decide the case. Courts in China often use the "political question" argument to allow the Chinese government to do anything that it wants to. The U.S. Supreme Court ducked the issue as well by declining to review the case. Mexico, on the other hand, called NAFTA a treaty (tratado) and approved it as such under the Mexican constitution.
The political question doctrine is a judge-made concept. A recent Supreme Court decision (Zivotovsky v. Clinton) has severely undermined the political question doctrine paving the way for the courts to review a challenge to a Presidential agreement that is not ratified as a treaty by the Senate. In an eight to one decision the Supreme Court ruled in 2012, "At least since Marbury v. Madison, we have recognized that when an Act of Congress is alleged to conflict with the Constitution, '[i]t is emphatically the province and duty of the judicial department to say what the law is.' That duty will sometimes involve the '[r]esolution of litigation challenging the constitutional authority of one of the three branches,' but courts cannot avoid their responsibility merely 'because the issues have political implications.' INS v. Chadha (1983)."
Presidents have regarded the Article II treaty process as necessary where an international accord would bind a future president. For example, Theodore Roosevelt explained in his 1913 autobiography:
The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo (Dominican Republic). But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two years before the Senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be proceeding under a treaty which was the law of the land and not merely by a direction of the Chief Executive which would lapse when that particular executive left office. I therefore did my best to get the Senate to ratify what I had done.
President Obama should follow President Theodore Roosevelt's advice and submit his proposed Trans Pacific Partnership treaty to the United States Senate for its advice and consent as our Founding Fathers wisely engrained into the Constitution of the United States.