November 27, 2001 | Commentary on Foreign Aid and Development
An important aspect of national sovereignty is the right to
enter into international agreements and to participate in enforcing
them. Being bound by agreements such as mutual-defense treaties
does not weaken sovereign power. Yet some federal lawmakers have
expressed concern that granting trade promotion authority (TPA) to
President Bush would diminish our sovereignty - and may actually be
Such concerns are misplaced. If anything, the opposite is true.
With TPA, Congress agrees to take a straight up-or-down vote on
trade agreements the president negotiates before June 1, 2005. It
has been extended to the previous five U.S. presidents and is
granted by most of our trading partners to their heads of
It is much more difficult for the United States to negotiate
significant trade deals without an assurance that Congress will
refrain from adding numerous amendments and conditions the
president must take back to the negotiating table. Congress hasn't
granted TPA for seven years - one reason the United States is party
to only three of the 131 trade and investment agreements in force
The TPA legislation being debated is clearly constitutional.
Congress retains its authority to approve or reject all future
trade agreements. It might be unconstitutional if Congress tried to
delegate its authority to approve the final deal - but that's not
at issue. What's at issue is whether our president will be denied
an equal footing with other heads of state when he sits down to
negotiate such agreements.
Congress may always kill any future agreement by withholding its
final approval. The only difference under TPA is that Congress
agrees not to kill the agreement by amendment (i.e., the "death by
a thousand cuts"). The Constitution grants each chamber the
authority to establish its own rules of procedure, and it makes
sense for Congress to limit itself to straight up-and-down votes on
certain resolutions, such as base closures and adjournment
Some critics of TPA have pointed out that a subsequent trade
deal might submit certain disputes, including labor and
environmental matters, to an international body such as the World
Trade Organization. This, they argue, would undermine our
Although we generally oppose having labor and environmental
conditions in trade agreements, the TPA legislation shouldn't
attempt to mandate or prohibit them outright. Some members of
Congress want to require labor and environmental provisions in all
future trade deals, and some want to prohibit them. The president
should try to accommodate these conflicting sentiments when he
negotiates future trade deals, but it raises serious constitutional
questions for Congress to mandate the president's negotiating
Moreover, the president shouldn't be denied the assistance of
TPA to try to reconcile these conflicting congressional wishes. If
he cannot negotiate agreements that satisfy a majority of both
houses of Congress, nothing will have been lost in granting him
enhanced negotiating authority. But no one benefits if potentially
satisfactory trade negotiations are strangled in the crib.
As for the trade deals themselves, they would not be
unconstitutional and they would not undermine our 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 our domestic
laws provide. No future agreement could grant an international
organization the power to change our laws.
A ruling by an international tribunal that calls one of our laws
into question would have no domestic effect unless Congress agrees
to change the law to comply with the ruling. If Congress rejects
the ruling or fails to act, other countries might impose a trade
sanction or tariff, but they may do that now without any agreement
The fact remains that no international body or foreign
government may change any American laws. Congress may at any time
override an entire agreement by a simple statute. In short, the
U.S. Constitution - and any laws and treaties we enact in
accordance with it - are the only supreme law of our land.
Although we think labor and environmental side agreements
shouldn't be a part of trade and investment agreements, submitting
these issues to an international tribunal for an initial ruling is
no different (constitutionally) than submitting any other type of
dispute to such a body.
Many important multinational agreements provide for disputes to
be submitted to an international tribunal for such a ruling.
Congress and past presidents have concluded that these tribunals
are effective in eliminating unfair trade practices that hurt
American producers and consumers.
Whether a given trade agreement should include labor or environmental provisions, or provide for disputes to be heard by an international organization is a policy question. Agreements that include such provisions are not unconstitutional and do not diminish our sovereignty. The only action that will weaken our overall sovereignty is for Congress to hobble the president's authority to negotiate trade deals with other nations by denying him enhanced trade promotion authority.
Originally appeared in the Washington Times