Congress Should Decide Whether Trade Agreements Abide the Terms of Trade Promotion Authority

Trade Promotion Authority (TPA or Fast-Track Negotiating Authority) is not an executive power grab.  It is a compact between the legislative and executive branches, which each have distinct authorities under the Constitution when it comes to conducting trade policy. The purpose of forging such a compact is that negotiations would be impracticable – and likely interminable – if each provision were subject to the whims of 535 legislators.

Opponents of trade liberalization have smeared TPA as a wholesale capitulation to the president, who allegedly is freed of any congressional oversight and given a blank check to negotiate unamendable trade deals in secret without any input from Congress – only the capacity to vote up or down on the final deal. In reality, though, TPA is the vehicle through which Congress conveys its trade policy objectives, conditions, and demands to the president, who negotiates with those parameters in mind. Provided the president concludes a negotiation that abides those congressional parameters, the deal is given fast track consideration, which means essentially that legislative procedures are streamlined and expedited.

The trade committees are reportedly close to introducing trade promotion authority legislation, although there remains some debate about what it should include. Enforceable provisions to discipline currency manipulation would be a bad idea, as would be including provisions to reauthorize the ineffective and misguided Trade Adjustment Assistance program (which is widely acknowledged to be a payoff to organized labor).

But one important provision (or set of provisions) that has created a bit of an impasse between Senate Finance Committee Chairman Orrin Hatch (R-UT) and its Ranking Member Sen. Ron Wyden (D-OR) concerns certification that an agreement abides the requisite congressional conditions to be afforded fast track treatment. Those of us who argue that TPA is not an executive power grab, but a practical, constitutional solution to a policymaking quandary must acknowledge the propriety of such a provision – or a provision that accomplishes as much. There must be a mechanism through which the president is held to account – that the deal reflects the broad wishes of Congress.

Under previous TPA legislation, Congress was afforded opportunities to offer “Resolutions of Disapproval” over procedural concerns (including whether the trade deal advanced the objectives and goals of Congress). Such resolutions were required to be reported to and approved by the respective trade committees in each chamber. Certainly, any new trade promotion authority legislation will include similar provisions. But Sen. Wyden is reportedly believes that stripping an agreement of fast track treatment should be easier to accomplish than it was under previous TPA legislation – perhaps by allowing for more channels through which such “resolutions” could come to the floor for a vote and requiring 60, as opposed to 67, votes in the Senate to pass the resolution.

Talk of an affirmative need to “certify” that the agreement comports with congressional objectives – as opposed to passing a resolution that it doesn’t comport – would also seem to present another bottleneck that would amount to a second TPA vote. Of course, many Democratic Party constituencies that oppose trade liberalization generally would appreciate these lower thresholds, which make derailing trade agreements easier.  And that concern explains Chairman Hatch’s view that Wyden’s position would “make it so that fast track won’t work … the whole purpose of fast track is to be able to get these things … either rejected or approved.”

Congress must have the authority to decide whether an agreement qualifies for fast track treatment, otherwise there is nothing to hold the president to account.  But that authority should not be so vast as to negate the purpose and effect of trade promotion authority. Ensuring necessary checks and balances should not be a partisan matter.