The TPP's Last Stand

This article originally appeared at Dissent.

The controversial Trans-Pacific Partnership (TPP) will likely come up for a vote during the "lame-duck" session of Congress--that is, after November's election but before the next government is seated at the beginning of January.

The TPP would establish a free trade area with twelve Pacific Rim countries representing an estimated 40 percent of the global economy. Supporters laud its projected economic benefits, although a report by the U.S. International Trade Commission forecasts negligible gains for the U.S. economy over the coming decades. The gains are also expected to be unevenly spread: U.S. agriculture will benefit the most from reduced tariffs, while many manufacturing sectors will see further declines. Regardless of the uncertain economic benefits, supporters claim the TPP is a critical part of the "pivot to Asia" in U.S. foreign policy.

Critics, meanwhile, call it NAFTA on steroids. Most controversial is the TPP's proposed expansion of investor-state dispute settlement (ISDS) provisions. ISDS allows foreign corporations to bring claims against the U.S. government for regulations that reduce their bottom line, if these regulations can be construed as violating any of several vaguely defined standards. Moreover, disputes are decided by arbitral panels of private lawyers, appointed on an ad-hoc basis, not full-time judges. In addition to spirited street protests from New York to New Zealand, the ISDS provisions in the TPP have prompted hundreds of professors of law and of economics to sign a public letter denouncing the trade deal as a threat to democratic sovereignty and the rule of law.

But beyond ISDS, which has gotten the lion's share of attention, there are many reasons that progressives are worried about the TPP, from the risks it poses to internet freedom to a possible regulatory "race to the bottom" on core issues such as labor rights to the way it was negotiated behind closed doors with outsized attention to the demands of powerful corporations.

Even before this unusual election season, the TPP was a tough sell on both sides of the aisle. It is now widely reckoned that the lame-duck session remains its best and maybe only chance to pass in Congress. On a recent state visit to Singapore, President Obama admitted that he expects the TPP to go through "after the election is over and the dust settles." He added, "We've got a pretty good record of getting stuff done when I think it is important."

The problem is that what President Obama thinks is important should count for very little "after the election is over," when he will have a newly elected successor. The legitimacy and constitutionality of lame-duck legislation is called into question every time another lame-duck session arrives, when the country faces the awkward gap of time between the exit of one set of legislators and the formal seating of their elected successors. The lame-duck session allows yesterday's lawmakers to rule without representing the current will of U.S. voters. It is when governmental accountability is at its lowest level.

This legitimacy problem is particularly acute when politicians who were defeated or are retiring give their support to legislation that the newly elected government would likely oppose. This would be precisely the case with lame-duck passage of the TPP, given that neither presidential candidate supports it and many representatives don't dare voice support for it before the election. This is one thing that the Republican Party platform gets right in declaring that significant trade deals "should not be rushed or undertaken in a Lame Duck Congress." In fact, no significant legislation of any kind should be passed by yesterday's representatives. Lame-duck legislation is precisely the wrong way to restore the radically eroded public trust in government, which this election cycle has revealed like nothing else. Yet advocates of the new trade agreement are counting on lame-duck passage because they need legislators willing to act against both public opinion and their own successors.

After the Twentieth Amendment to the Constitution, we weren't supposed to be in this mess any longer. That amendment, as Yale law professor Bruce Ackerman explains, was meant to eliminate the lame-duck session, by moving up the beginning of the presidential, vice-presidential, and congressional terms of office from March to January. When it was ratified in 1933, it was widely assumed that legislators would simply go home for the holiday season after the November election, rather than rush to make new laws, and that their successors would take office soon afterward. The Twentieth Amendment was meant to deprive a departing government of the chance to secure a final agenda behind the backs of the American people.

Just as lame-duck governments may be required to respond to national emergencies--which they did, even after the Twentieth Amendment, during both the Second World War and the Korean War--there are reasons to distinguish Congress's enactment of new legislation from its performance of routine administrative functions. The Senate's confirmation of presidential appointments, including to the judicial branch, may fall into the latter category.

But the TPP is neither a routine matter nor a national emergency. Creating a new free trade area covering almost half the world economy could mean major changes to our country's laws--not just on tariffs but a vast array of administrative regulations. It's no emergency either: the TPP has been under negotiation for almost a decade, in active debate for several years, and available in final negotiated draft form for almost a full year.

The reason to push it through during the lame-duck session is simply that a group of departing politicians reckon they want it more than the American people do. And the lame-duck period allows for the kind of corruption--institutionalized and otherwise--that will smooth its otherwise uncertain passage. There will be a lot of trips for wavering congressmen on Air Force One come later November.

Moreover, the TPP will enjoy a reduced threshold for congressional approval under the "fast-track" authority that President Obama narrowly secured last year. If pushed through in the coming months, it will be both a lame-duck and a fast-tracked trade agreement. It will be passed using special procedures unavailable for other legislation, by yesterday's government, and in the face of a newly elected one that would likely oppose it.

It's disappointing that a former constitutional law professor, President Barack Obama, wants to operate against the spirit of the Constitution--within what amounts to a legal loophole--in signing a lame-duck TPP into law. To be clear, the TPP wouldn't be the first lame-duck, fast-tracked trade agreement in our history. In fact, U.S. membership in the World Trade Organization (WTO) was passed on December 1, 1994, the only day of the lame-duck Congress of that year. It was much less controversial than the TPP and would likely have passed in the next Congress, but its implications were no less far-reaching.

The WTO and the North American Free Trade Agreement (NAFTA) inaugurated the transition to so-called "next generation" trade issues--away from reducing tariffs, already historically low, and into contentious issues of cross-border regulatory convergence and global governance. This is not a popular agenda, having been widely criticized as too favorable to multinational corporate interests. The TPP doubles down on the "next generation" push with its expansion of ISDS and its emphasis on regulatory harmonization. Only lame-duck passage seems likely to secure it--and, once secured, it will generalize the NAFTA model to a large portion of U.S.-Asian trade. The consolidation of this global economic order now awaits only a handful of lame-duck congressional votes--a final, essentially undemocratic step in what has already been a minimally democratic process.

There is time enough beginning in January 2017 to continue the national debate on trade policy. Come November, President Obama will be nearing the end of his two terms in office and the American people will have already chosen his successor. He should not mar his record by pushing through lame-duck legislation of dubious constitutionality. And Congress should help him do the right thing by declaring this lame duck a dead one.