November 28, 2001
By Edwin Meese III and Todd F. Gaziano
Congress is expected to vote soon on whether to
grant trade promotion authority (TPA) to President George W. Bush.
Some critics of TPA have suggested that it might compromise
national sovereignty and may actually be unconstitutional. But an
important aspect of national sovereignty is the right to enter into
international agreements and to participate in their enforcement.
Being bound by agreements, such as mutual defense treaties, does
not weaken sovereign power even though it obligates nations to
abide by these pacts while they are a party to them.
Another aspect of sovereignty is the right
of nations to withdraw from treaties that no longer suit them,
although nations do not abandon most treaties over minor
disagreements or unforeseen circumstances. America's NATO allies
are now in a situation they never imagined: helping patrol our
skies with NATO surveillance planes. Even as they shoulder this
obligation, their assistance does not diminish their sovereignty or
America's in any way. In fact, the NATO Treaty still makes each
nation stronger than it would be by itself.
concern some lawmakers have expressed, that TPA would somehow
diminish American sovereignty, is misplaced. If anything, the
opposite is true.
President Needs TPA. By granting TPA to the President,
Congress agrees to take a straight up-or-down vote on trade and
investment agreements the President negotiates before June 1, 2005.
Congress has extended TPA to the previous five U.S. Presidents, and
such authority is granted by most other nations to their heads of
state. Without TPA, the President is denied an equal footing when
he attempts to negotiate trade agreements on behalf of America.
is extremely difficult for any U.S. President to negotiate
significant trade deals if he cannot assure other nations that
Congress will refrain from adding numerous amendments and
conditions that must then be taken back to the negotiating table.
Congress has not granted TPA for seven years--which is one reason
why the United States is a party to only three of 131 trade and
investment agreements currently in force worldwide.
TPA legislation currently being debated (H.R. 3005) is clearly
constitutional because 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 is not at issue. Congress may always kill any future
international agreement by withholding its final approval. The only
difference under TPA is that Congress consents not to kill the
agreement by amendment (i.e., the "death by a thousand cuts"). The
Constitution grants each house of Congress the authority to
establish its own rules of procedure, and it makes perfect sense
for Congress to limit itself to straight up-or-down votes on
certain resolutions, such as base closures and its own adjournment
Is Not Eroded. Some critics of TPA point 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
U.S. sovereignty. It should be noted that this is not an argument
against TPA legislation itself but against a future, hypothetical
trade deal that might be negotiated with the aid of TPA.
Although unrelated labor and environmental
conditions do not belong in trade agreements, TPA legislation
should not attempt to mandate or prohibit them outright. Under
well-established constitutional rulings, it would raise serious
constitutional concerns for Congress to try to mandate the
President's negotiating positions. Moreover, some Members of
Congress want to require labor and environmental protections in all
future trade agreements, and others want to prohibit them in any
future agreement. The President must be sensitive to these
conflicting sentiments when he negotiates future trade deals if he
wants congressional approval. TPA would assist him in trying to
reconcile these conflicting desires. If he cannot negotiate
agreements that satisfy both houses of Congress (as the TPA
legislation requires), 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.
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.
ruling by an international tribunal that calls a U.S. law into
question would have no domestic effect unless Congress changes the
law to comply with the ruling. If Congress rejects a ruling or
fails to act, other countries might impose a trade sanction or
tariff, but they are more likely to impose high tariffs now without
any agreement. The fact remains that no international body or
foreign government may change any American law. Moreover, Congress
may override an entire agreement at any time by a simple statute.
Nations also may withdraw from international agreements by
executive action alone. That is one reason why such agreements do
not interfere with the underlying sovereignty of each nation to
chart its own course in the world. In short, the U.S. Constitution
and any laws and treaties we enact in accordance thereto are the
only supreme law of our land.
Finally, while labor and environmental
conditions generally should not be a part of trade and investment
agreements, submitting these issues to an international tribunal
for an initial ruling is no different (constitutionally) from
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 its determination. Congress and past
Presidents have concluded that these tribunals are effective
overall in eliminating unfair trade practices that hurt American
producers and consumers.
Conclusion. Whether a given trade
agreement should include labor or environmental provisions or
should provide for disputes to be heard by an international
organization are questions of policy. Agreements that include such
provisions are not unconstitutional and do not diminish national
sovereignty. The only action that will weaken overall U.S.
sovereignty is for Congress to hobble the President's ability to
negotiate trade deals with other nations by denying him enhanced
trade promotion authority.
III is the Chairman and Todd
Gaziano is the Director of the Center for Legal and Judicial
Studies at The Heritage Foundation.
Nothing written here is to be
construed as legal advice on any matter, as an attempt to create an
attorney-client relationship, or as an attempt to aid or hinder the
passage of any matter pending before Congress.
The only action that will weaken overall U.S. sovereignty is forCongress to hobble the President's ability to negotiate trade dealswith other nations by denying him enhanced trade promotionauthority.
Edwin Meese III
Ronald Reagan Distinguished Fellow Emeritus
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Todd F. Gaziano
Director, Center for Legal & Judicial Studies
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