June 10, 2003

TPA v. Treaties

Brett Marston, and in response James Joyner, have commented on the issue of Trade Promotion Authority (once known as "Fast Track") in the context of current Senate filibusters of President Bush's Appeals Court nominees.

The main issue being Bret's contention that Republican Senators are being hypocritical by insisting on a strict constitutional standard for nominees (i.e., a straight majority vote v. the supermajority of the filibuster), while voting for TPA which creates a simple-majority vote system for trade deals, which Bret sees as violating the super-majority standard for treaties in the Constitution.

For the sake of clarification, I would note that TPA doesn't actually apply to treaties, but to the more narrowly defined "trade agreement" and is a legislatively created legal category that it took both Houses of Congress to pass.

TPA works like this: the President negotiates a trade deal with a foreign country (or countries) and submits the proposal to Congress. BOTH Houses of Congress then have an up or down vote on the proposal, and the vote is a normal majority. The goal is to allow all negotiations to take place during the actual negotiations with the foreign government in question, rather than allowing the Senate to amend the deal post-negotiation. The logic being that foreign governments will not want to negotiate, or will hold back, knowing that even once a treaty is signed that it would potentially have to negotiate with the US Senate. NAFTA was approved in this fashion.

In short, trade agreements have the character of regular legislation, not a treaty, and therefore the comparison to the confirmation process is not really accurate.

Now, one could argue that this is doing an end-run around a constitutional provision, but still, having a legal category created by the full Congress is several degress different than the issue of Senate rules. Indeed, it is possible, I suppose, that Congress created an unconstitutional category that violates the treaty powers outlined in the Constitution. However, the only way to know that for sure would be for the US Supreme Court to say so.

Also, TPA originally dates back to the 1970s, and was renewed several times before it was allowed to lapse during the Clinton administration. As such, it has not historically been a partisan issue, as Democratically-controlled Congresses originally created, and renewed several times, said authority.

Posted by Steven Taylor at June 10, 2003 11:01 AM | TrackBack

Interesting post. Two problems, though:

1) So NAFTA is not a treaty? That's weird. Sounds fishy to me. The decision of whether or not these trade agreements go into the box of treaties for the purposes of Article II, Section 2, or into the box of "legislation," is a decision that is apparently governed by considerations of political expediency and ideology rather than "strict" constitutional construction. Once you open the door here, it's really hard to close it without recourse to extraconstitutional principles.

2) You can't rely on the Supreme Court to bail you out of this; some constitutional values are not enforced by the court and probably shouldn't be, and at the very least there is a wide realm where even the courts are willing to find political questions. Some constitutional provisions are addressed primarily to non article III actors and should be viewed as enforceable through political pressure, not through courts.

Posted by: Brett at June 10, 2003 02:35 PM

Yup--consider the name: "The North American Free Trade Agreement" and it went into effect as the result of passage in both Houses of Congress by a stright yes or no vote.

It really wouldn't be an Article II "treaty".

And actually, I am not looking to be bailed out, per se, but was pointing out that the Supremes might be the only way to have a definitive answer. As I think about, I think that there are actually some SC cases that may ber relevant, but Conlaw isn't my area of expertise.

Posted by: Steven at June 10, 2003 03:57 PM

OK, so whether it's called "an agreement" or "a treaty" determines whether or not it actually is a treaty? I thought that there were independent standards for evaluating these things, especially if one holds to certain views about finding framers' intent.

As Jim points out, the Senate's own website argues that the distinction between the two was primarily a matter of congressional conveniece: it's hard to pass treaties, so Congress and the Senate created a different category with different procedures. And someone should tell the press that these things aren't "treaties."

Reminds me of the argument that Vietnam wasn't a war but a "police action." Small consolation to those sent to fight. . .

Posted by: Brett at June 10, 2003 04:12 PM

No, I wasn't suggesting that the name, per se, meant it wasn't a treaty, but that there is legal significance that it is a "trade agreement" rather than a treaty, and yes, that legal category was created at least in part (if not totally) because "real" treaties are hard to pass.

The bottom line is, that Fast Track Authority, and now TPA, were legislatively created, and are in a different category than the rules a given chamber sets for itself (i.e., I would argue that you are comparing apples and oranges in the post that started all of this--although I take the point that started the thread--but as I pointed out in my other post--you were right that cloture votes and confirmation votes are also apples and oranges: you can't have it both ways :).

And legally the Vietnam War wasn't a war, as least constitutionally. That matters, depending on the kind of conversation one is having. Legal categories have significance. Like the cloture vote v. confirmation vote issue--they are different legal categories, and calling them both "votes" misses part of the institutional significance of their existence.

Posted by: Steven at June 10, 2003 04:43 PM
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