TPP in Focus: Point-Counterpoint: TPA Doesn’t Put Congress in the Driver’s Seat

This blog post is part of a series about the Trans-Pacific Partnership trade agreement.

There have been a number of claims recently about how the Hatch-Wyden-Ryan TPA bill would put Congress in the “driver’s seat” and how the Administration would have to follow Congress’s lead should it become law. Many of these claims – discussed below – are simply not accurate and defy the basic provisions in TPA: limiting congressional debate, removing the possibility of congressional amendments, and ultimately forcing an up-or-down vote.

This TPA bill is inadequate with regard to ensuring that Congress has a meaningful role in the outcome of the trade agreements negotiated under it. This is of major concern as it relates to the Trans-Pacific Partnership because that negotiation is nearing the end with many issues still outstanding. Members of Congress must ask themselves: If you are not satisfied with the current status of TPP, and if you want to see provisions change – why would you fast-track the TPP as it is right now? The Hatch-Wyden-Ryan TPA does nothing to get TPP on the right track.

Consider these claims and some commonsense responses:

Point: TPA “puts Congress in the driver’s seat.”

Counterpoint: This TPA bill does not mandate anything. It merely includes negotiating objectives – essentially a wish list. The objectives are unacceptably vague and provide no real guidance as to how to resolve the major outstanding issues in the TPP negotiations. Some of the objectives are even misleading. For example, the agricultural market access objective suggests that Congress would be satisfied if Japan and Canada merely agree to “reduce” their tariffs on U.S. agricultural products, without ever eliminating them. But Congress most certainly would not be satisfied with the mere reduction in all agricultural duties. In fact, this negotiating objective, as it applies to TPP, is inconsistent with our WTO commitments, which require that regional trade agreements eliminate duties with respect to “substantially all” trade.

Point: “If the President meets all these requirements, Congress agrees to give the trade agreement an up-or-down vote.”

Counterpoint: This TPA bill relies on the President, not Congress, to certify whether a trade agreement “meets” the negotiating objectives. It is unacceptable to rely upon a President who negotiated the agreement to merely issue a statement “asserting that the agreement makes progress in achieving” the objectives. “Makes progress,” not meets.

Point: “Through trade promotion authority, [Congress] is asserting its power over the executive branch.”

Counterpoint: After conveying a “wish list” of negotiating objectives to the Administration, allowing them to certify that they have met these weak negotiating objectives and maintaining the status quo on consultations, Congress also limits the legislative process through this TPA.

Specifically, this TPA bill takes away congressional leverage in several ways: (1) it gives the President the power to determine when Congress must begin considering a bill to implement a trade agreement; (2) it limits the time Congress has to consider such a bill; and (3) it prohibits any Member of Congress from offering any amendment to a bill to implement a trade agreement.

Point: Congress can “cancel the vote, change the agreement, or even stop it altogether.”

Counterpoint: Everyone acknowledges that a trade agreement can’t be changed by Congress. Further, the two provisions cited by proponents to withdraw fast-track are basically unworkable, and the bill is actually weaker than previous fast-track bills. For instance, the 1984 and 1988 fast-track bills included a provision that would allow the committees of jurisdiction to remove an agreement from fast-track consideration before the President signed the agreement – a much more meaningful provision than any contained in this TPA bill.

The first provision cited in this TPA bill requires both the House and Senate to adopt “procedural disapproval resolutions” to remove an agreement from fast-track. While any Member of Congress may introduce a procedural disapproval resolution, a resolution must then pass the committee of jurisdiction – but the committee of jurisdiction is not even required to consider the resolution. If the resolution makes it out of committee, neither the House nor the Senate are required to vote on it. Thus, any movement on a resolution is entirely discretionary and unlikely to happen. History bears this out – the same exact provision was included in the 2002 TPA bill and was not used once.

The second provision allows either Chamber to complete a convoluted process in the committee of jurisdiction and on the floor to remove an agreement from fast-track. The biggest weakness of this provision is that it requires the committee of jurisdiction to disfavorably report a trade agreement’s implementing bill. Every modern U.S. trade agreement has been reported out by committee, yet a committee of jurisdiction has never disfavorably reported an implementing bill. Even so, if a bill were to make it past this step, the resolution to remove an agreement from fast-track could get stuck in the House of Representatives, as there is nothing that requires the House to vote on the resolution.

Point: TPA requires that the Administration consult regularly with Congress.

Counterpoint: While this TPA bill recognizes the need to “enhance” consultations with Congress, it does nothing to improve them. Specifically, this TPA bill leaves it up to the Administration “to develop within 120 days of enactment written guidance on enhanced coordination with Congress.” This provision is unacceptable for two main reasons:

First, Congress should not allow the President to decide how the Administration will consult with Congress. Congress should be writing these guidelines.

Second, this provision is particularly meaningless given the late stage of TPP negotiations. USTR Mike Froman has stated that TPP was in the “end game,” so 120 days after TPA passes (when the President is required to submit these guidelines to Congress), the TPP could well be finalized, which would render any new guidelines meaningless with regard to current trade negotiations.

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The role of Congress in trade negotiations is a bipartisan concern. Senator Sessions opposed TPA and wrote a Myths vs Facts document entitled, “Fast Track Would Reduce Congressional Power, Subject U.S. To Global Tribunals, And Pave Way For New Executive Actions”

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