by Michael Stumo
Paul Ryan and Barack Obama have been pushing the Trans-Pacific Partnership as a trade agreement. We know from past experience these deals promote other countries’ market access to US consumers more than they promote exports. But the TPP is more about global governance and sovereignty than trade.
President Obama spoke at Nike headquarters to promote Fast Track trade authority in May 2015 saying “No trade agreement is going to force us to change our laws.” Ten days later, a World Trade Organization tribunal ruled that a popular US law requiring country of origin labeling for beef must be struck down. The US Congress passed that law in 2002. The Supreme Court, which traditionally determines whether laws are valid under our constitution, had no say in the WTO decision. Obama never admitted he was wrong.
The majority of the TPP’s 5,500 pages delve deeply into the domestic laws of the US and other signatory countries rather than traditional trade issues. Issues include government procurement, investment and banking, food and product safety rules, telecommunications, electronic commerce and administrative rulemaking. Whether you support the new TPP rules is not the issue. Whether the TPP rules impact our ability to govern ourselves under our constitutional system is the issue.
The TPP creates three ways American law can be changed or challenged. First, other countries can bring a claim against the US challenging laws they disagree with. That is similar to the WTO tribunal process that struck down our country of origin labeling law. Increasingly, these tribunals issue rulings based upon their own personal views but not based on the text of the WTO agreement or other trade agreements.
Second, private or state-owned companies in other countries can use the “Investment” chapter provisions of the TPP to bring a claim against the US challenging national or local laws that interfere with their business expectations. This process has a mind-numbing name, Investor-State Dispute Settlement (ISDS). TransCanada, a Canadian pipeline company, filed suit last month against the US for rejecting the infamous Keystone pipeline. They are using the ISDS rules under the North American Free Trade Agreement to do so. TransCanada is claiming $15 billion in damages for violation of its expectations.
TransCanada does have access to US courts to challenge our laws or regulatory decisions on the grounds that they are unlawful. The US constitution established our federal courts under Article II. Foreign companies that do business here have standing to use our courts. But TransCanada chose to bypass our courts and use the international tribunal process. If a US pipeline company was similarly denied by the Obama Administration, that company would have to use the US court system because it would have no access to the NAFTA tribunal to resolve its complaint.
Third, and less well known, is the TPP Commission. It could be used to cause the most damage to our sovereignty. The TPP agreement establishes this TPP Commission giving it various powers including issuing “interpretations of the agreement”.
A future President could use the TPP commission to bypass Congress and the courts by convincing other countries to issue “interpretations” of the agreement that overrule acts of Congress or establish new rules that Congress refused to consider or pass. For example, if a President could not persuade Congress to change a law prohibiting use of foreign military components for the Department of Defense, he or she could persuade the TPP Commission to issue an interpretation of the agreement that concluded that the US law was invalid under the TPP. A foreign company or country could then use the TPP tribunals to rule against the US and force us to change the law or suffer trade retaliation. The US courts and Congress would be powerless.
While the “foreign military component” example may not be likely, the point is that the TPP Commission can be used to further erode our sovereignty, which is at its core our ability to govern ourselves through our constitutional system of government. As we sign more “trade” agreements, the globalist lobby tends to insert provisions to create more powerful global institutions that issue periodic decisions which accumulate, create new international law, and increasingly erode our self governance.