Thursday, April 21, 2011

Trade Agreements without Fast Track

In response to my cry for reader-generated content, I received a question from textile guru David Trumbull, the gist of which is:
If President Obama negotiates a Trans-Pacific Partnership free trade agreement and submits it to congress without Trade Promotion Authority would it be subject to the "Treaty Clause" (2/3 vote in Senate with no House vote needed)? Or, would it be treated as a congressional-executive agreement and would need a simple majority vote in both houses as would any other law?
Personally, I have always been suspicious of the congressional-executive agreement as a means of managing international relations (including trade). It simply does not show up in the Constitution, which specifies that the President can make treaties with the advice and consent of the Senate. On the other hand, Congress has the power to regulate trade with foreign nations. So, the congressional-executive agreement is basically a delegation of authority from Congress to the President to negotiate a deal, which then goes before both the House and Senate for approval by a simple majority. It sounds a lot like Fast Track (now "Trade Promotion Authority"), but is more ad hoc. Some scholars have opined that the process is unconstitutional, but the Supreme Court has upheld it (at least according to Wikipedia).

I don't know the answer to the questions. I invite those who might know or just want to express an opinion to do so in the comments.


Anonymous said...

Throughout my career in Customs, I've always been mystified by the "difference" between trade agreements and treaties. They're ALL international agreements, which in my mind says "treaties." The "agreements" language seems to be a Congressional extra-Constitutional scheme to pull off something somewhat fraudulent, and pass the blame to the Executive Branch.

They're ALL treaties and should be treated Constitutionally as such, requiring consent of 2/3 of the Senate, differentiating without a difference notwithstanding.

Your loyal Customs retiree

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