Ways/Means misleads us on sovereignty, immigration and trade

April 27, 2015


"It contains a misleading impression, not a lie. It was being economical with the truth." Robert Armstrong

The Ways and Means Committee blog promotes Fast Track passage and sometimes "stretches the truth".  One can, of course, just tell enough of the truth to leave a misleading impression. A recent Ways and Means blog post on immigration and trade, in an effort to comfort us all into believing Fast Track is good for us, leaves the misleading impression that trade deals do not change US laws.

There has been recent controversy over the potential for President Obama, or any president, to use trade deals to cause changes in US laws on immigration.  While immigration is not CPA's issue, the fact that trade deals cause changes in many US laws is a CPA issue. For example, trade deals can weaken US "Buy American", labeling, and other laws.

Ways and Means tried to rebut the fact that trade deals impact our laws. The author of the blog post used just enough truth to mislead.  For example, the post says:

"[The Fast Track bill] confirms that trade agreements have no direct effect, and the administration cannot unilaterally change U.S. law." (emphasis added).

Technically, it is true that the 2015 Fast Track bill states that in the event of a conflict between US law and the trade agreement, US law prevails.  But the misleading impression that US laws are not ultimately changed is FALSE.  Why?

First, when a trade agreement is approved by Congress, it takes effect through "implementing legislation" that does change our laws. The agreement does not directly change our laws, but it causes changes through the implementing legislation.

Second, if the US does not change its laws to comply with the international deal, we will risk being sued by other countries in an international tribunal.  If we lose, the tribunal can allow the complaining foreign country to use the coercive power of retaliatory sanctions to force the Congress (or possibly state and local governments) to change laws or pay up. The tribunal does not literally or directly rewrite US law, but uses coercive means to achieve the same result.

Third, if the trade agreement is considered a treaty (still an open question), then Article VI of the Constitution provides that it becomes the law of the land directly. Specifically, Article VI says "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land".  But courts have refused to rule upon the question of whether a trade agreement is a treaty or not, so let's move on.

Ways and Means also says this to mislead us:

"[The Fast Track bill] contains a new provision affirming that trade agreements cannot change U.S. law without congressional action, nor prevent the U.S. from changing its law in the future."

Again, technically true.  Again the Fast Track bill says, in Section 8 called "Sovereignty", that US law is not directly changed. But we've seen above how that leaves a misleading impression that no changes will result.

Additionally, future changes in US law that violate trade agreement provisions are, in practice, avoided. Anyone following Congress with more than mild interest knows that virtually any proposed bill that would conflict with the WTO or other trade agreements are not approved.  So the ultimate impact is that we restrict future scope of lawmaking for the duration of any trade agreement's existence, which so far has been forever.

Ways and Means further says:

"[The Fast Track bill] includes improved provisions to ensure that implementing bills include “only such provisions as are strictly necessary or appropriate to implement” trade agreements."

So here they admit that US law is changed (albeit not "directly" by the trade agreement itself). But we are supposed to feel better because the only US laws that are changed will be "strictly necessary or appropriate". So... the argument now morphs from "US law is not changed" to the argument that "well, it is changed but only when strictly appropriate"... whatever that means.

Yet another Ways and Means misleading claim says:

"In addition, TPA retains procedures for consideration of a separate resolution to strip TPA."

I've already written about how this much-trumpeted mechanism to pull Fast Track procedures from trade agreement consideration is a farce.  It is impracticable.  Thus, it might as well not exist.

Lastly, Ways and Means brings out the oft-cited assertion:

"Congress retains the ultimate authority to vote for—or reject—the final trade agreement."

The point of Fast Track is that it is a unique mechanism to push through unpopular trade deals with potentially distasteful provisions without full debate and without amendments in an "up or down vote". If a few provisions - on immigration or Buy American laws, for example - are distasteful, the agreement is usually passed anyway because the lobbyists push it through.  The argument morphs into "well, you can't be against trade". So final passage by Congress is not a sufficient mechanism to prevent mischief in secret negotiations.

So there is a real issue of trust when listening to the claims of Fast Track proponents.

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