President Barack Obama is finishing 6 years of negotiations on a broad economic agreement with 11 other nations on the Pacific Rim. Enacting this pact -- The Trans Pacific Partnership (TPP) -- is the president's top legislative priority in these last two years of his presidency.
The importance of the thousands of details in the TPP cannot be overstated for they will define the 21st-century rules that will define the economic relationships and commerce for what is now more than 40 percent of the world's annual Gross Economic Product. TPP, moreover, will be the foundation for future negotiations of a North Atlantic Free Trade Agreement between Europe and North America.
Importantly, the TPP is being crafted under the rules of the Vienna Convention on the Law of Treaties. If adopted, this pact will have the force of a treaty on U.S. laws, regulations and administrative actions, and the U.S. will honor the TPP as a treaty. Thus, even by any other name, such as an "Executive Agreement," the TPP will in reality be a treaty.
However, President Obama is unable to secure the two-thirds majority vote in the Senate required by the U.S. Constitution to ratify the TPP as a treaty. Because a strong majority of Democrats and many Conservative Republicans oppose this pact, he also cannot secure Congressional approval under the Regular Order rules of Congress.
Thus, if the TPP is to be ratified, President Obama needs the Republican leadership in Congress to ignore the Constitution's Treaty provisions, set aside Regular Order in both Houses, and adopt a "one-issue-only," much-weakened set of rules by which the TPP will be considered. These weak rules, first used in 1974 by President Nixon, are known either as Fast Track Trade Negotiating Authority (FT), or more recently as Trade Promotion Authority (TPA).
After the 2014 elections, Senate Majority Leader McConnell (R-KY) and House Speaker Boehner (R-OH) jointly and separately announced that they would support President Obama's request for Trade Promotion Authority and give its implementing legislation a priority consideration.
Such support is baffling since President Obama, throughout the TPP negotiations, has refused to allow members of Congress or the American people to see the text of the treaty, claiming such transparency would impede negotiations. Now that the negotiations are effectively finished, Mr. Obama continues to keep the text secret, claiming that public disclosure of the text would impede ratification. The question, of course, is what mysteries and surprises lie therein?
At the recent House Democrats' retreat in Philadelphia, the president told the members that he would provide a short summary of the TPP provisions before they voted on weakening House rules. As with the 2010 Affordable Care Act vote, President Obama seems to want Congress to use the "Pelosi Rule" - vote first; learn the TPP's details afterwards.
While Congress and the public does not know what is in the text of the TPP, the key provisions of the rules under which Congress would consider ratification of this treaty if Fast Track rules are adopted include:
• Retroactively approve the president's authority to choose which nations (past and future) the U.S. will negotiate similar economic pacts.
• Authorize the president to select the issues that will be negotiated.
• Authorize the president to sign those pacts without prior Congressional approval.
• Authorize the president to include in these economic agreements not only changes in tariffs and quotas, but also in federal, state and local laws on taxes, food and health safety, patents, financial regulation, copyrights, trademarks, immigration, environment, labor standards, and Buy America provisions, among many other issues.
• Authorize the presidential advisory system, comprising 700 industry representatives who are appointed by the president. Grant these corporate advisors access to confidential negotiating documents that are kept secret from Congress and the public.
• Empower the president to draft the TTP treaty's implementing legislation without Congressional input.
• Require House and Senate Leaders, after receipt of this implementing legislation, to introduce the bill on the following first legislative day their House is in session.
• Require that the legislation be discharged from Committees 45 days after submission.
• Prohibit any amendments to TPP either in Committee or during the floor debate.
• Require a floor vote 15 days after the bill is discharged from Committees.
• Limit floor debate in each House to only 20 hours.
• Eliminate several floor procedures, including Senate cloture rules,
• Prohibit any Senator from filibustering the ratification vote.
• Require only a simple majority vote in each House for enactment.
• Provide these Fast Track authorities to both president Obama and his successor.
Once ratified, the TPP mandated changes on federal, state and local laws cannot be altered without 100 percent approval by all other nations in this pact. Any changes in U.S. law, thus, are effectively permanent.
In the past, implementing legislation for such pacts contained non-germane provisions, allowing prior presidents to buy support and enact other legislation they could not get enacted by Regular Order.
The mystery about all this is two-fold:
(1) Why do so many members of Congress publicly support a trade treaty whose details they do not know, and
(2) Why do Majority Leader McConnell and Speaker Boehner -- who won reelection on a platform of "Stop Obama" -- support weakening Senate and House legislative processes to ratify a treaty whose text was negotiated without Congressional input and which the president keeps secret from them, their Members and the public.