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New TPP Controversy: Fast Tracking Authority

As the Trans-Pacific Partnership (TPP) draws nearer to a conclusion, anxieties have been brewing over the possibility that Congress could thwart a resolution by opposing President Obama’s trade promotion authority, colloquially known as his “fast track” authority, or his executive power to negotiate treaties and trade agreements that also limits congressional prerogative to introduce amendments to such agreements.

And since a preponderance of evidence suggests that the TPP is steadily progressing towards a resolution–the plan is to have a final round of negotiations in Singapore this December–the attention devoted to executive trade authority has continued to intensify. On November 12, a group of twenty-three Republican members of the House of Representatives sent a spirited letter to President Obama protesting his trade promotion authority, arguing that it unconstitutionally circumvented their jurisdiction to oversee trade. On the very same day, a collection of 150 House Democrats sent President Obama a similar letter of protest, echoing many of the same sentiments regarding the constitutionality of of his fast tracking authority. Apparently, the view of executive trade promotion authority as an unconstitutional usurpation of congressional power has rare bipartisan appeal.

The issue of fast track authority, until recently, has only lurked inconspicuously in the background, taking a back seat to more contentious issues like the role of Vietnam, the yarn-forward rule and the minimization of duties. But the prospect of the TPP’s imminent settlement has brought it to the foreground.

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This important issue has largely been neglected by the mainstream media, partly because its complexity makes it resistant to brief description. However, since the TPP is seen by many to be a historically significant trade agreement, and its passage could conceivably be frustrated by a full-frontal attack on executive trade promotion authority, disentangling its messy threads is a necessary task.

What exactly is fast tracking authority?

Rather than an executive grab of congressional power, trade promotion authority was actually created by Congress in 1974. The point was to streamline the process of treaty negotiating by allowing the president more latitude to settle terms regarding the reduction of foreign tariff and non-tariff barriers to American exports. The additional latitude for presidential authority comes in the form of limitations on congressional oversight: once a president submits a trade agreement under his fast-tracking authority, the majority leaders of both chambers of Congress must introduce the bill on the next day Congress is in session. No member of Congress is permitted to assign an amendment to the agreement. There are strict limitations on the time afforded each chamber for deliberation, depending on the type of trade agreement under consideration, and the bill must receive a simple up or down vote, and will pass by a simple majority.

Does Fast Track Authority Replace Congressional Oversight?

The point of fast tracking authority is not to eliminate congressional oversight but to channel it in such a way that it allows the president the authority represent the nation in negotiations with other nations. So the president must still consult with the House Ways and Means Committee, the Senate Finance Committee and an array of special advisors handpicked by Congress. Also, the final power to accept or deny any candidate treaty rests solely with Congress as well.

What is the Argument in Favor of Fast Tracking Authority?

Some believe that executive trade promotion authority is an essential instrument for the president to effectively engage in trade negotiations. If he cannot issue guarantees in good faith, then it would be impossible to other leaders to consider him a viable negotiating partner. Several key trade agreements have passed under fast tracking authority: the Tokyo Round of the GATT in 1979; the US-Israel Free Trade Agreement in 1985; the US-Canada Free Trade Agreement in 1988; NAFTA in 1993; and Uruguay Round Agreements in 1994.

The TPP has been a tinderbox of controversy ever since negotiations begun. The nineteenth round just concluded in Brunei and includes the U.S., Vietnam, Singapore, Australia, Peru, Brunei, New Zealand, Chile, Malaysia, Mexico, Canada and Japan.

And the opportunities, as well as risks, are unusually high. The eleven countries involved in the negotiations sent $15.1 billion worth of apparel and textile imports to the US last year.

Some see the TPP as a watershed moment in the gradual opening of other markets across the participating members. Julia Hughes, president of the US Association of Importers of Textiles and Apparel opined, “One of the goals of the TPP is to have it be a true 21st-century agreement and part of what that means is the ability of manufacturers in one TPP party to sell to all others with no new regulatory barriers, technical barriers [or tariffs].Part of the point of TPP is to create a new supply chain among the countries.”

It only makes sense that such an impactful trade agreement would not only inspire congressional infighting, but that it would raise fundamental questions about the nature of governmental trade authority, and even the separation of powers. Now that the end of TPP’s lengthy and sometimes meandering path is now coming to an end, both the ferocity and breadth of the debate continues to grow. If fast tracking authority is rescinded, that might be as consequential for the future of US trade relations as any outcome of the TPP discussions.