Trading Away the Constitution

The Trans-Pacific Partnership being debated in Washington is riddled with flaws, but people should be particularly troubled by the potential loss of U.S. sovereignty at the heart of this massive international deal.

Essentially, the TPP is a government-managed trade scheme. The overall agreement runs to roughly 6,000 pages, with over 50 side letters containing additional deals and carve-outs. As such, it’s hard to envision such a complex arrangement truly producing the open, unfettered market so cherished by free-trade advocates.

A case in point: Trade with Japan alone constitutes 14 specific side letters in the agreement, and each one lays out special conditions for Japanese participation. Among other things, TPP reduces the already too low NAFTA parts-content standard, and permits Toyota and other Japanese automakers to export vehicles to the United States that contain a large percentage of parts produced in non-TPP countries. And so, other Asian countries such as China, which are not TPP partners but do produce parts for Japanese automakers, become some of the main beneficiaries.

In order to square such endless details regarding trade, investment, intellectual property, labor issues, and environment practices with current U.S. law, the Obama administration will submit to Congress a massive package of so-called implementing legislation. This bill, written by the executive branch, contains the trade deal itself and all of the changes to U.S. law that it dictates.

If a current U.S. food-safety standard conflicts with a less stringent standard dictated by the TPP, then the administration and Congress must change U.S. law

In practical terms, this means, for example, if a current U.S. food-safety standard conflicts with a less stringent standard dictated by the TPP, then the administration and Congress must change U.S. law to come into conformity with “TPP law.” Otherwise, the U.S. government, if Congress passes the implementing legislation and the president signs it, could be sued by an aggrieved TPP partner and face potential sanctions.

The precedent for the U.S. acceding to such overarching requirements was established after North American Free Trade Agreement took effect. While the U.S. had maintained laws for dolphin-safe tuna, such requirements were deemed to be a restraint of trade by Mexico’s fishing industry, and thus the target of legal action. The Mexicans won the case and the dolphin-safe labeling disappeared.

To adjudicate the different values and standards among TPP partners, the trade agreement establishes the same type of NAFTA dispute resolution panels, which are composed of three “judges.” These individuals switch between representing countries and governments before the panels and judging cases, seemingly a clear conflict of interest. Further, there is no appeal from their decisions. So TPP sets up a new 12-nation judicial system, one that could include hostile countries that decide to join the TPP in the future. In fact, Secretary of State John Kerry recently invited both China and Russia to join the TPP.

Perhaps most disturbing is the establishment of a new “TPP Commission.” Like the World Trade Organization, this TPP Commission is an unelected body of international bureaucrats empowered to promote the TPP as a separate institution, with an agenda independent of and potentially opposed to U.S. interests. Thus TPP will set in place a new international executive body capable of making its own rules — and not bound to respect the U.S. Constitution.

The mandate of the commission allows it to alter or adjust TPP rules as it sees fit, without any input from Congress.

What’s particularly vexing is that the mandate of the commission allows it to alter or adjust TPP rules as it sees fit, without any input from Congress. The creation of such a commission represents a giant step away from Congress’s constitutional duty to regulate international trade.

Unfortunately, in recent decades, there has been a proliferation of such global institutions. If Congress ratifies the TPP, not only will another bunch of international and unaccountable bureaucrats be added to the global rolls, but it will also set the template for a similar Trans-Atlantic Commission being set up during the current Trans-Atlantic Trade and Investment Partnership negotiations between the U.S. and the European Union.

Once President Obama signs the TPP agreement and submits the implementing legislation to Congress, the legislative branch will have 90 legislative days to vote on it, with no changes or amendments of any kind allowed. Ironically, the agreement is so complex that any one chapter would likely take far longer than 90 days to become law under normal circumstances.

Congress should reject the TPP as an unreasonable, constitutionally questionable surrender of U.S. sovereignty in exchange for little or nothing in return.

TPP is not, as Obama has so often claimed, a progressive trade agreement that will help America compete in the 21st century. Voting down the TPP would be a healthy sign that the U.S. is tired of being a trade patsy and that our trading partners, such as TPP members Mexico and Japan, are no longer free to run up large trade surpluses at the expense of domestic U.S. manufacturers and workers.

Rejecting the TPP would also demonstrate to U.S. multinational corporations, investment houses, banks, and insurance companies that they no longer have the executive and legislative branches of government in their pockets. That alone is reason enough for rejection — no less the subordination to a faceless international body that does not have America’s best interests at heart.

Kevin L. Kearns is president of the U.S. Business & Industry Council, a national business organization advocating for domestic U.S. manufacturers since 1933.