Now Free Trade Is Unconstitutional?


The Trade Promotion Authority (TPA) legislation scheduled to come to the House floor Friday generally does one thing: establishes a process for international trade deals to give them an up-or-down vote in Congress.

But TPA opponents, driven by an understandable disdain for President Obama, are coming up with an increasingly unhinged and inscrutable reasons to oppose it.

The latest comes from Rep. Dave Brat (R-VA), who told the Daily Caller that despite his staunch free-trade views, he can’t back TPA because it’s “unconstitutional.”

“You know how it works,” Brat said, “There’s sort of a 90-10 proposition. If there’s 90 percent good stuff that both sides of leadership want and 10 percent is unconstitutional, ‘Well, that’s an unfortunate detail,’ but it passes.”

“And that’s not the way I operate. I operate on the fundamentals. The rule of law matters, the Constitution matters, the free market matters, telling the truth matters, and if any of those get violated, I’m a no,” he added.

In an article titled “Why Trade Promotion Authority Is Constitutional,” President Reagan’s attorney general Ed Meese and top Heritage legal expert Todd Gaziano explain why this is wrong.

“The concern some lawmakers have expressed, that TPA would somehow diminish American sovereignty, is misplaced. If anything, the opposite is true,” the two write.

“Future trade deals would not be unconstitutional, nor would they undermine U.S. sovereignty, if they contained an agreement to submit some disputes to an international tribunal for an initial determination. The United States will always have the ultimate say over what its domestic laws provide. No future agreement could grant an international organization the power to change U.S. laws,” they write.
Congress approving or denying trade deals negotiated by the president is exactly how the Constitution intends for the government to operate. And if Congress later enacts legislation to implement trade agreements, that too is how the Constitution intended for the process to work.
Brat also explains his opposition to TPA is driven by his fundamental distrust of Obama.

“I’m a total free trader,” Brat said. “It hurts my brain. I have constituents who I know need trade to take place, and so it hurts me, but the issue does come down to — do you trust the president and this process?”

Given that Obama has enacted policies he himself declared unconstitutional dozens of times, it’s obviously warranted for conservatives to treat his words and proposals with skepticism.
However, in this case, conservatives don’t need to trust Obama, they can trust rock-ribbed conservative leaders who have backed this deal. Meese and Gaziano are two, but Sen. Ted Cruz (R-TX) has also explained how under TPA, “before anything becomes law, Congress gets the final say.”
House Financial Services Committee Chairman Jeb Hensarling (R-TX) says TPA “sets in place a process to negotiate potential trade deals, while maintaining the constitutional authority of Congress to finalize any such agreement or treaty.”

Rep. Matt Salmon (R-AZ) says “Should TPP, or any subsequent free trade agreement, strike a bad deal for Americans, Congress can (and should) vote it down.”

Sen. Ben Sasse (R-NE). Rep. Tom McClintock (R-CA). Sen. Tom Cotton (R-AR). The list goes on and on.
On TPA, you shouldn’t trust Obama. But you can trust leaders that have been in the trenches with conservatives for years, helping fight the left and, when necessary, push GOP leaders to the right.

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June 11, 2015 11:45 am

It is not just a matter of trusting the President, though for the life of me, after 6 1/2 years I don’t know why anyone would be in favor of passing ANYTHING promoted by Obama, It is a matter of trusting Boehner and McConnell. If this issue is anything at all like the Iran negotiations, if the opposition to it is based on separation of powers, or shared powers, the definition of a treaty and the constitutionality of procedures involving foreign “policy”, then the line may be perhaps fine, but words mean things. Anything that smacks of submitting ANYTHING to… Read more »

June 11, 2015 7:41 pm

Congress already had the Constitutional authority to strike it down, fast track ended in 2007, all deals were ones already in the pipe. “Article II, Section 2, Clause 2 of the United States Constitution, includes the Treaty Clause, which empowers the President of the United States to propose and chiefly negotiate agreements, which must be confirmed by the Senate, between the United States and other countries, which become treaties between the United States and other countries after the advice and consent of a supermajority of the United States Senate.” You’ll note that trade deals already require a supermajority TPA lets… Read more »

Mike gamecock DeVine
June 11, 2015 10:39 pm

Agrred Pil’ and This article and Blatt, conflate two different issues: TPA and TPP. The first is a bill that would ensure that any agreement he signs with foreign nations will get an up or down vote with no amendments. Nothing un-constitutional there. Like all bills, it will be written, submitted and then voted on, just like Obamacare was. No matter what Pelosi said or whether she read it or not, nor how long it was available; it was written and made public at least one second before it was voted upon. Yes, it would be nice if we had… Read more »