President Barack Obama is asking Congress to grant him trade promotion authority, the ability to “fast track” two massive trade deals with Europe and Asia: the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership. This would allow him to pass those deals in the form that his negotiators will soon deliver them.
Fast track commits Congress to an up-or-down vote on whatever the administration negotiates, without the possibility of filibuster or amendments. It essentially excludes Congress from oversight and enables an efficient, executive-driven approach to international commerce. The purpose is to keep the House and the Senate from inflicting death by a thousand cuts on delicate negotiating positions and specific concessions.
Most U.S. trade deals have been passed using fast-track authority, but the Asian and European partnerships under consideration now aren’t like the fast-tracked deals of the past. In significant respects, they’re not really trade agreements at all. Their new target is not trade tariffs but “behind-the-border” domestic regulations. Fast-tracking that kind of agreement would be a mistake.
Fast track was invented by President Franklin Roosevelt, and it became central to Depression-era trade policies and the liberalized post-World War II economic order. The original version of fast track allowed the president to enter into reciprocal deals that reduced tariffs within congressionally set limits. Congress pre-approved the broad terms of any agreement and otherwise delegated negotiating authority to the executive branch.
These trade policies, buoyed by fast track, were successful. Tariffs and export subsidies have mostly disappeared, except in the difficult and contentious case of agriculture. But instead of declaring victory, the trade agenda has become far more amorphous and consequential. What trade agreements now seek is to harmonize regulatory standards across countries. Fast track now serves a new purpose: not governance of trade but governance through trade.
What the American public has seen so far of TPP and TTIP comes from leaks by concerned negotiators. WikiLeaks recently released the Pacific deal’s chapter on investment, which appears to commit all parties to full liberalization of financial flows and the use of special arbitrators instead of normal courts. This will exacerbate concerns that public health, consumer advocacy, labor and environmental groups have already raised about previously leaked TPP chapters on intellectual property and the environment.
We know that the president has brought in industry groups — representatives of Big Pharma, Big Agriculture and Wall Street among others — to shape the closed-door negotiations, even though Congress is kept out. But congressional deliberation about these deals is not an obstacle to avoid; these policies are exactly what elected representatives should debate and decide.
Alas, Congress is riven by partisanship and hamstrung by its extremes; it is widely and perhaps properly mistrusted. And yet Congress is the branch of government charged by the Constitution to represent us in our legislation. It is only through congressional oversight that ordinary Americans can participate in deciding “behind the border” issues.
Presidents may require the authority to negotiate tariffs and subsidies within limits, but the current negotiations go far beyond such concerns. Congress, for all its flaws, should not be allowed to exclude itself — and with it, the American people — from the process.
David Singh Grewal is an associate professor at Yale Law School, where he teaches international trade law. He wrote this for the Los Angeles Times.
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