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OpEdNews Op Eds    H3'ed 5/10/15

Myth vs Facts on Fast Tracking Trade Authority

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There has been a lot of talk lately about giving the president Fast Track Trade Authority, and in fact a bill came out last month that would do just that. While there are many against the bill, the corporate controlled media is talking over them with points of their own, pushing an agenda that does not have the best interest of the United States in mind. With all the debate, what are the facts and fiction -- the truth and lies? There are five main questions everyone should be asking and the answers should wake everyone up to the true facts of the situation.

  1. Is Fast Track Constitutional?

Article I, Section 8 gives the Congress power over trade, or more specifically it allows Congress to "regulate Commerce with foreign Nations." Article II, Section 2 grants the president the power "to make Treaties." It is true that the president is required to obtain authority from Congress to work our trade treaties. However, the treaties the executive office is working on presently have been done without permission, President Obama is now asking for permission after the fact.

In addition, while our "free trade" agreements are not treaties, as they do not follow the Constitutional vote of two thirds of the Senators, they are treated as treaties. Having the same or greater standard as the Constitution, they are -- for all intents and purposes -- treaties. This means that the executive office is currently overstepping its bounds by making agreements behind Congress' back.

While some may claim this is Constitutional, as the Congress willingly gives up their power over trade, it is barely so. As long as Congress gives all of its power over trade to the executive office to create a treaty that is not a treaty, as defined by the Constitution, yet holds all the powers of a treaty, the whole process skirts the law and ignores the intent of the Founding Fathers.

The president is not a king to make laws and treaties in secret allowing Congress only an up or down vote without being a party in a greater way in making a deal that supersedes U.S. laws without even taking the steps needed to be a Constitutional treaty. While some may argue that Fast Track is needed to stop amendments, this is a moot point. Amendments should come before the presidents signs, and should not even be an issue if the executive office is doing it due diligence to work with Congress.

  1. Does Fast Track/TPA allow Congress a meaningful role in the negotiations?

The short answer here is no, it does not. To begin with, the current bill gives suggestions on what the executive office should include in the negotiations (years after the fact) without any mandates on what is required from Congress. Thus, the bill is full of items Congress would like to see, but Fast Track cannot be pulled if none are met. In fact, there are only two mandates in the bill. After the president signs the agreement(s), Congress may pull Fast Track if the president (1) fails to make (undefined) progress or (2) does not consult with Congress at times appointed in the bill.

This means that if the executive office shows up and tells Congress they are ignoring their wishes as stated in the Fast Track bill, and yet makes progress on any one thing, such as say recognizing "the growing significance of the Internet as a trading platform in international commerce," (page 4 of the bill) any attempt to pull Fast Track would be denied by both the House Ways and Means Committee and the Senate Finance Committee. Fast Track stays in. Congress has no power, other than an up or down vote, in the end.

  1. Does Fast Track/TPA cede to the president U.S. trade negotiating objectives or decide if the executive office met Congresses goals?

Without mandating instructions, the executive office is free to set its own objectives, in fact -- it already has. The Trans-Pacific Partnership is already mostly finished. In 2013, President Obama's trade negotiator, Michael Froman testified before the Senate Finance Committee stating that the deals was set to wrap up in a "small number of months." About two years later, the executive branch is expected to throw out the objectives it has not only outlined without Congressional approval but on a deal that is clearly finished, if Froman's 2013 testimony is to be believed. The idea that the executive branch will take Congress seriously now when it has been working in secret without authority or cooperation for years seems ludicrous.

  1. Does the Fast Track/TPA bill allow for the executive branch to rewrite U.S. laws, or undermine U.S. sovereignty by usurping U.S. law?

Yes the Fast Track/TPA bill will allow the executive office to write the implementing legislation that will in effect change current U.S. laws, though not unilaterally. The president will be able to change laws as the executive sees "strictly necessary or appropriate" (page 42 of the bill). This is extremely vague language. There will then be an up or down vote, and this will be the only say Congress has in the matter. No amendments are allowed by Congress. They would be required to pass new laws to replace the usurped laws made by past Congresses, and these would be required to pass the "free trade" tribunals as these mock treaties will be held to the same or greater standards and the Constitution as they are treated as treaties - regardless of their classification as Executive Agreements.

In fact, this is how the agreements will usurp U.S. law. Article VI of the Constitution states that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." Section 8 of the Fast Track/TPA bill talks of sovereignty yet becomes irrelevant once the agreement has been signed and approved by Congress. After all, if these agreements are not treaties, why would anyone bother to sign them -- they would not be binding. All past free trade agreements have been Executive Agreements, yet we have and do change U.S. law to meet our obligations. There is no reasons to assume we would stop now. This is all just fancy word play to create loopholes in U.S. laws.

  1. Will Fast Track/TPA destroy more jobs than it creates?

Looking at other trade agreements signed under past Fast Track/TPA bills, yes. Any new trade agreements made under Fast Track/TPA will continue, as Ross Perot put it in 1992, the "giant sucking sound" of American jobs leaving the country. Many plants closed after NAFTA was signed, the U.S. has lost millions of good paying American jobs as "free trade" agreements have been signed. This is due to many factors, but the biggest is actually the new mercantilism used by other nations but ignored but the United States.

These new mercantilistic tactics include currency manipulation that creates a huge burden on American products while making foreign goods less expensive, value-added taxes (VATs) that replace tariffs at foreign borders for our goods while creating subsidies for their exporters, and state owned enterprises that use their government's funds to put our companies out of business. While our trade negotiators are fighting to get rid of tariffs averaging 2.5 percent, our foreign competitors are hiking up their VATs and manipulating their currencies to gain unfair trade advantages.

The reality is that Congress must reign in the executive branch, make pending trade deals transparent and find out why our past agreements are not working and fix them before making more disastrous agreements that sell out the American economy and the American people. While Republicans may like to vilify President Obama, the reality is that this is a problem Congress has created for itself with every president over the past few decades. It is easy for Congress to blame Reagan, Bush, Clinton, Bush, Obama, and the next president. However, the reality is that executive overreach exists due to Congress passing more and more of its power to the Executive office and voters in both parties want to see this fixed.

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A graduate of Franklin University with a degree in Digital Communications, David is the co-president of the Church of Jesus Christ in Christian Fellowship, a nondenominational Latter Day Saint/Mormon movement. In the past, he was a full time (more...)

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