I have been a part of a team going to Washington DC every other week all year, talking to Republicans in the House. So far, it looks like TPA will not pass the House thanks to Democrats and Tea Party members that understand what the stakes are -- at least from their own points of view. Democrats have been heard this tune before and do not want to be fooled again. Meanwhile, many in the Tea Party are for so-called "free trade," but they are not willing to pass such agreements at the expense of the Constitution.
There are three ways our Founding Fathers designed our government to allow for amending the Constitution, all in ways to create a balance of power. Article V gives power to Congress by a vote of two thirds from both Houses. It also allows for two thirds of the States to call for a Convention for proposing Amendments.
However, there is one more. Article VI states that treaties are "the supreme Law of the Land," in spite of the very Constitution itself. The president may, in a sense, amend the Constitution through diplomacy and the vote of two thirds of the Senators, according to Article II, Section 2 of the Constitution.
This, in effect, makes treaties a form of Constitutional Amendment. If, for example, Congress approved a treaty that voided the Second Amendment, all Americans would legally lose the right to bear arms. While the right would hate it, this would be perfectly Constitutional.
This treaty clause includes our agreements with the United Nations, the International Monetary Fund, the World Trade Organization, etc. This also includes our agreements with other countries in trade, such as the North American Free Trade Agreement, the Trans-Pacific Partnership and other trade agreements that President Obama is currently working on.
Some will falsely argue that this is not true, as these are Executive Agreements. A treaty, they would argue, must have the vote of two thirds of the Senators. So, Executive Agreements -- which only need 51 percent of the votes from both houses of Congress -- are not treaties. But this isn't correct both in legal reality and in practice.
It is easy to see that when using TPA, given to the Executive office by Congress, the Senate is giving up its power to ratify treaties in the manner prescribed by our Founding Fathers. While Executive Agreements are not new, the United States did far more Executive Agreements than treaties in the first fifty years of the existence of our nation, TPA was not used back then. The first TPA was not written until the 1970's. The Executive Agreements may have been a loophole without TPA, but with it the argument can be made that the Senate gave up its need for a two thirds vote for an agreement to be a treaty.
However, even this argument is moot. The third branch of government, the Supreme Court, has stated that Executive Agreements are in fact treaties and are thus the supreme Law of the Land. In 1912, the Supreme Court ruled this so in B. Altman & Company v. United States No. 228. The question was asked if a U.S. court could make a ruling on a case where the treaty was an Executive Agreement, rather than a treaty by the Constitutional definition. The court ruled that "a treaty is defined as a compact made between two or more independent nations, with a view to the public welfare."
They went on to conclude:
"If not technically a treaty requiring ratification, nevertheless it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the circuit court of appeals act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court."
Thus, the Executive Agreement would not be trumped by the Constitution, as the Supreme Court has ruled as an agreement between two countries it is a treaty and thus the Law of the Land.
Even if this ruling were to be ignored, the fact remains that we bow to these agreements, even when they go beyond their scope. Look at the recent WTO ruling on the U.S. COOL law. Nowhere in the WTO nor in any of our trade agreements have we agreed not to label our food. Yet time and time again the WTO ruled COOL illegal using a test that we never agreed to. Now, we will likely lose our food labeling, which is a shame. We know our iPhones are made in China and where our shirts come from, but the WTO won't let us label the food we put inside our bodies.
Clearly, the WTO is the supreme Law of the Land.
The Founding Fathers didn't want a king, that's why the bulk of power in government was given to the Congress. The president signs or vetoes laws and the Supreme Court makes rulings based on these laws as prescribed by the Constitution, our treaties, and Executive Agreements. Yet these new agreements not only tie the hands of Congress, they also make our courts irrelevant as cases go to the WTO and relevant trade agreement tribunals instead. TPA allows the president to write the implementing legislation that change our current laws and Congress gets an up or down vote -- no amendments. These make our courts and our Congress inept creating a king of the president, bound by foreign supranational bodies that appear to be managed more by corporations than governments.
While this may sound like a right-leaning argument, the fact is that Americans need to stand up as sovereignty lost by our Constitutional government is power gained by corporate America and the 1 percent. This is an issue that both the right and the left agree on, they just don't realize it due to conflicting talking points. The fact is that everyone, regardless of political preferences, must contact their Representative in the House now. If they are right leaning, let them know you do not support TPA on sovereignty grounds. If they are left, tell them you do not support TPA as free trade ships jobs overseas. Either way, speak up, speak out, and speak often before we lose the right to speak at all.
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