It would appear that such an international agreement would comprise a "treaty" under the Constitution, requiring Senate approval.
In general, the Senate doesn't like being bypassed.
Is there an end-run here I don't know about?
In general, the Senate doesn't like being bypassed.
Is there an end-run here I don't know about?
I like the EFF in general, but they have an unfortunate tendency toward being shrill and incomplete in their public statements. The NY Times here is clearly not endorsing any specific language, but the concept of a well-formed trade agreement. In fact they directly acknowledge the challenge of getting the IP provisions right-- which is the main concern of the EFF.
You're correct in the abstract that such an agreement would need Senate review, but as noted in the piece and as we described in a letter to the Senate signed by Amnesty International, FSF, Free Press, and a bunch of others, the USTR is currently seeking "fast track authority" to bypass that process.
Read the editorial: the NY Times is endorsing an agreement that the public can't read. If they wanted it to be conditional, they could have written it that way. But instead, they acknowledged concerns and then dismissed them without a good explanation. And the public can't explain it themselves because we can't read the text.
I did. It isn't.
So when are we gonna get to read it? After the Fact? Who is supposed to "analyze" this? WTF
Are you taking issue with the premise of fast-track (ie, that it will go regular track)? Because based on the structure, it comes up for a vote in Y/N only. So debate is essentially pointless (unless the whole thing is rejected) as its take-it-or-leave-it. So all of the non-pointless debate needs to occur beforehand. Which is certainly inconsistent with complete secrecy. Or is everybody missing something?
It's possible that Congress could choose to renew fast track, but that would not mean they are being bypassed--since they themselves would be putting the restrictions in place, and they obviously all know that the TPP is coming down the track.
Also--Congress could not even pass a budget to keep the federal government open. Personally I am not worried that they will move too fast on anything in the foreseeable future.
Also, that's how the Senate votes on judicial and other nominees (Y/N, rather than having any control over a shortlist or setting criteria), and Article II says that treaty votes come before the Senate the same way. I have the impression that you and several other posters would prefer a more parliamentary system of government where the executive was a member of the legislature and directly subject to its authority* but that's not our constitutional scheme.
* A key difference in a parliamentary system being that a vote of no confidence in the executive can force a general election.
It's a plausibly deniable cheerleading article for the Obama administration with almost no real content other than the fact that negotations are in progress.
It's too bad that the linked EFF article is so overblown, because I think that transparency is badly needed, and that media outlets should cover any TPP dealings better. By sensationalizing things, you've discredited the positive message of the post.
I'm sympathetic to your concerns around IP enforcement in TPP. But instead of discussing those, I find myself having to educate people about the basics of legislative procedure, like whether a treaty will be reviewed by the Senate. Even under TPA, the answer is yes.
I don't understand why you guys write this way. It creates massive distraction from your central points (see: most of this discussion), and it turns off folks who have the best understanding of the issues--the folks who theoretically should be most helpful to your cause.
I'm not quite sure I understand how an up or down vote in the senate that is certain to pass counts as 'review.' The time to mount any public criticism will be very small and there will be enormous pressure to approve the agreement as amendments will not be possible.
It's not like the effect of TPA would be a surprise to the Senate. Senators understand very well what it would mean for their ability to amend trade agreements. If they want the chance to review and amend the TPP, they won't pass TPA.
In other words: Everyone, not just Americans, should worry even more about the contents of such an agreement if the US Senate chooses to allow such an agreement to be fast-tracked, because you can be virtually certain the reason will be because the Senate power brokers are worried the content would not withstand a longer public debate.
Even without fast track approval the agreement would be structured as a congressional-executive agreement that would not require a two thirds majority. With fast track approval congress would still have to approve the agreement although a filibuster would not be possible.
The TPP is going to be terrible for some countries, including patent agreements that will multiply the cost of drugs, forced disconnection for copyright infringement and the ability for multi-nationals to sue governments who make laws that will hurt their future profits (eg safety, regulation, security, environmentalism, etc).
It's something the public should be actively involved in now, while negotiations are occurring rather than being placated by the New York Times for it to later roll through the senate.
The underlying legal theory is that modern trade agreements require extensive changes to domestic law and thus must involve the regular legislative process. And so long as the Congress passes a law that implements all of the U.S. obligations under the trade agreement, and the executive agrees to enforce those obligations, our trading partners don't care that there isn't a Constitutionally-defined "treaty".
Politically, in addition to avoiding the potentially damaging effects of bypassing the House, passing trade agreements this way give the executive a more credible (and thus powerful) negotiating position, since he doesn't need to be sure of pulling 67 Senators on board.