Trade Promotion Authority: The Voluntary Cession of Major Constitutional Authority From Congressional Republicans to President Obama

By Martin M. McSherry 

Introduction

            In a historically unproductive Congress,[1] one policy area of tremendous legal consequence is on a fast track to becoming law with bipartisan support. Two international regulatory and investment treaties, the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP), are currently under negotiation between the United States, the European Union and Pacific Rim nations. At the heart of these negotiations are questions over their content and the process through which the treaties will cease to be proposals and become international trade agreements. The role of the executive and legislative branches also enter uncharted territory as the administration’s trade negotiators strike deals with foreign nations that would seriously alter U.S. law with limited transparency. While Congress will get the final say on the passage of TPP and TTIP, top Republicans in the House and Senate are racing to empower the Democratic president with Trade Promotion Authority (TPA). TPA, or fast track authority, is legislation that would give the administration the power to negotiate the terms of an international trade deal, facilitating only an up-or-down vote from Congress on a final agreement.[2] Why are congressional Republicans so eager to cede their legislative authority to President Barack Obama? More broadly, what does TPA mean for executive-legislative relations?

            In seeking answers to these questions, one finds scant coverage of TPP and TTIP in mainstream media sources. The secrecy of the negotiations precludes much beyond rumors from entering into the spotlight concerning talks that could have profound consequences for labor relations, environmental protection and the bottom line of businesses in nearly every sector of the economy. Stakeholders are only left with speculation about the content of the negotiations; however, the process of finalizing TPP and TTIP is a discussion that is worth having.

Powers of the President

            The Office of the United States Trade Representative (USTR), currently occupied by Michael Froman, operates within the Executive Office of the President.[3] The USTR is responsible for negotiating the terms of trade agreements at bilateral and multilateral levels, and is currently overseeing TPP and TTIP.[4] The Appointment Clause of Article II of the Constitution therefore grants the president considerable power in the realm of trade, though the appointment of the USTR requires Senate confirmation.[5] International “free trade” agreements often focus on removing and altering barriers such as import taxes, or tariffs, duties and even regulating the value of currency.[6] Senator Charles Schumer (D-NY) implored USTR Michael Froman at a Senate Finance Committee hearing to more forcefully address currency manipulation in TPP, referencing China’s practice of devaluing its currency to make domestic products appear artificially cheaper when compared to American imports.[7]

Despite this, the president’s authority to regulate foreign commerce is very limited by the constitution. Article I gives Congress the power to “lay and collect Taxes, Duties, Imposts and Excises,” and to “coin Money, regulate the Value thereof, and of foreign Coin.”[8] These appear to be huge legal contradictions that could be actionable constitutional violations of power. However, they are not. In fact, under a new paradigm of executive-legislative relations that defines current trade negotiations, members of Congress are demanding a member of the executive branch to lay and collect taxes, duties, imposts and excises and regulate the value of foreign coin.

Trade Promotion Authority

            First granted to the president in the Trade Act of 1974, Trade Promotion Authority (or fast track authority) delegates negotiating power in trade agreements to the president with the commitment that Congress will consider the final outcome of the negotiations under special procedural rules.[9] When the finalized agreement is submitted by the president to Congress, it is not open to any changes or amendments.[10] Once submitted by the president to the committees of jurisdiction (Senate Finance and House Ways and Means), each committee has 45 days to report it and put it to a floor vote.[11] The House and Senate must vote within 15 days of the introduction of the bill. The bill can be debated for no more than 20 hours on the House and Senate floors and, therefore, cannot be subject to a filibuster in the latter chamber.[12]

            The Constitution does not allow the president to draft or introduce legislation in Congress, nor compel Congress to vote on legislation in a particular timeframe. The Constitution provides little guidance on treaty-making, though it is now understood that the president negotiates treaties, which the Senate must confirm. Article II, section 2 grants the president the power, “by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.”[13] This differs from the process outlined in TPA because of the two-thirds threshold, a significant hurdle that executives like President Woodrow Wilson found impossible to clear. In these ways, TPA represents a tremendous and historically significant, though voluntary, transfer of authority from one branch of the federal government to another.

The Office of the United States Trade Representative, a major proponent of fast track, disagrees in the definition on its website: “TPA does not provide new power to the Executive Branch. TPA is a legislative procedure, written by Congress, through which Congress defines U.S. negotiating objectives… Under TPA, Congress retains the authority to review and decide whether any proposed U.S. trade agreement will be implemented.”[14] That TPA provides the Executive Branch with new power is incontrovertible. It is power the president does not currently have and will have if TPA is passed. TPA is new power.

In 2011, trade agreements with South Korea and Panama passed under TPA, which was still in effect from a 2007 renewal.[15] Typically, TPA lasts for five years and applies to any and all agreements that are finalized by the administration during that time.[16] Since 2012, the Obama Administration has been actively lobbying Congress for a renewal of this authority. In a Congress controlled by Republicans who revile the president but are proponents of free trade, congressional leaders and administration officials are in an awkward position as they attempt to persuade dissenters on both sides of the aisle to embrace fast track.

The Current Situation

            With the end of TPP and TTIP negotiations in sight, the Republican-controlled 114^th Congress is racing to pass TPA. Senate Finance Chairman Orrin Hatch (R-UT) and House Ways and Means Committee Chairman Paul Ryan (R-WI) are both enthusiastic supporters of expanding President Obama’s authority, with Ryan calling it his top priority for economic growth. At the same time, members of the president’s own party are the most vehement opponents of TPA. In response to the administration’s push to pass TPA, progressive Reps. Rosa DeLauro (D-CT) and Louise Slaughter (D-NY) released a statement saying, “Congress can no longer give this administration—or any future one—the benefit of the doubt, especially given the scope of these particular deals. America’s trade policy has not improved the lives of the middle class and leading economists overwhelmingly agree that trade has contributed to the rise in income inequality.”[17]

DeLauro leads a broad coalition of Democrats who are opposed to the deal. Most experts agree that TPA will pass with the majority of its support coming from Republicans, who have been eager in recent years to deny President Obama any legislative victory. Labor unions, which traditionally support Democrats, oppose TPA and both of the pending trade deals. Business groups, such as the Chamber of Commerce, will benefit from market access provisions in the agreements. In his 2015 State of the Union Address, President Obama said, “I’m asking both parties to give me trade promotion authority to protect American workers, with strong new trade deals from Asia to Europe that aren’t just free, but fair.”[18] When there was an audible groan from Democrats in the chamber, the president went on to say, “Look, I’m the first one to admit that past trade deals haven’t always lived up to the hype, and that’s why we’ve gone after countries that break the rules at our expense. But ninety-five percent of the world’s customers live outside our borders, and we can’t close ourselves off from those opportunities.”[19]

Chairman Ryan inserted a bit of humor at a hearing with USTR Michael Froman, highlighting the political tightrope pro-trade Republicans must walk as they seek to give President Obama significant new power. In persuading his more conservative colleagues on the House Ways and Means Committee to support giving the administration sweeping authority on trade, the Wisconsin Republican quipped, “I’d no sooner trust this administration with total power than I would trust the Patriots with all of the footballs on Lambeau Field.”[20] At the hearing, most members objected to the veil of secrecy surrounding the negotiations for both TTIP and TPP, to which Froman replied that members could access the text of certain parts of the deals at his office. This failed to satisfy much of the concern over transparency, as access for members is still limited until the negotiations are finalized.

The significance of these deals should not be understated. The 12 nations in TPP represent 40 percent of global domestic product alone.[21] In current negotiations for TPP, there is even a potential for the final deal to include “an unconditional and complete ban on agricultural export subsidies” in the 12 nation partnership.[22] This means that direct expenditures enacted by Congress for billions of dollars may be, in essence, repealed by the administration and introduced to Congress as part of the larger deal. Under special procedural rules, Congress would be compelled to vote on a proposal drafted by administration officials in a certain timeframe with limited debate and no filibusters.

Conclusion

            While, indeed, TPA represents an unprecedented expansion of executive power, concluding high-level trade negotiations would be impossible without it. Negotiators must be able to make concessions with the trust and confidence of their counterparts that the final deal is final. Were Congress able to examine each line item of the deal and strike down provisions some members do not like, it would undermine the entirety of the negotiation. Each concession is contingent upon a separate victory. If Congress failed to grant the president TPA, the entire deal would unravel.

            After all, a member of Congress beholden to a population of 500 thousand may have a governing perspective influenced by one industry or even one factory. With regard to a deal encompassing 40 percent of the world’s GDP, it is not practical to reconcile 435 of these perspectives individually. The president, elected by the entire country, must do his or her best to represent the aggregate interests of Americans in the negotiations. Of course, it makes sense for Congress to vote yea or nay on the final product, but this must be done without amendment to the delicate balance of international interests spanning radically different cultures and economic systems.

            However, pretending that this is somehow an insignificant transfer of power between branches with little or no constitutionality is dishonest. This may be a necessary political tactic to garner support from both progressives and conservatives, but that statement is simply not true. In writing the majority opinion for the 1936 United States v. Curtiss-Wright case, Supreme Court Justice George Sutherland determined that the president makes treaties with foreign countries with the advice and consent of the Senate, “but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.”[23] The Constitution does not explicitly give the president this power, but the Supreme Court thought President Roosevelt should have plenary authority to conduct foreign policy as the United States became a major global actor. Since 1936, the process of globalization has only become more rapid.

            If Congress adheres to strict interpretations of the role of the executive from an isolationist era long gone and rejects TPA, globalization will not halt or reverse. In the absence of American leadership in the global economy, nations like China will fill that power vacuum and write the rules of international trade. Congress, as Justice Sutherland believed, is unable to participate in international negotiations but must approve treaties in their final form. That said, one should not lose sight on how significant a departure TPA is from the separation of powers prescribed by the Constitution. Instead of ignoring the legal implications of TPA, it should be regarded as a necessary adaptation to a rapidly changing world.

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[1] Desilver, Drew. 2014. In late spurt of activity, Congress avoids ‘least productive’ title. Pew Research Center. Pg 1.

[2] Hunter,Richard J.,,Jr, John Shannon, and Hector Lozada. 2013. Presidential Trade Promotion Authority. Mustang Journal of Law and Legal Studies 4, : 75-85.

[3] Umberger, Alison. 2008. Free trade visas: exploring the constitutional boundaries of Trade Promotion Authority. Georgetown Immigration Law Journal. , 22 (2), p. 319.

[4] Mission of the USTR, available at ustr.gov/about-us/mission.

[5] U.S. Constitution art. II, § 2, cl. 1.

[6] Hunter,Richard J.,,Jr, John Shannon, and Hector Lozada. 2013. Presidential Trade Promotion Authority. Mustang Journal of Law and Legal Studies 4, : 75-85.

[7] Needham, Vicki. 2014. Schumer presses for currency provisions in Asia-Pacific trade deal. The Hill. Pg. 1.

[8] U.S. Constitution art. I, § 8, cl. 1 and 3.

[9] Hunter,Richard J.,,Jr, John Shannon, and Hector Lozada. 2013. Presidential Trade Promotion Authority. Mustang Journal of Law and Legal Studies 4, : 75-85.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] U.S. Constitution art. II, § 2.

[14] What is TPA? Available at https://ustr.gov/trade-topics/trade-promotion-authority

[15] Hunter,Richard J.,,Jr, John Shannon, and Hector Lozada. 2013. Presidential Trade Promotion Authority. Mustang Journal of Law and Legal Studies 4, : 75-85.

[16] Ibid.

[17] French, Lauren. 2015. Obama cranks up trade pitch to Dems. Politico. Page 1.

[18] 2015 State of the Union Address Text as Prepared for Delivery. Available at http://www.whitehouse.gov/the-press-office/2015/01/20/remarks-president-barack-obama-prepared-delivery-state-union-address.

[19] Ibid.

[20] Higgins, Sean. 2015. Republicans affirm support for Obama’s trade agenda. The Washington Examiner. Pg. 1.

[21] Beshudi, Adam. 2015. TPA Spurs TPP Progress. Politico. Pg. 1.

[22] U.S. Signals Willingness to Agree to Ag Export Subsidies Ban in TPP Deal. 2015. World Trade Online. Pg. 1.

[23] United States v. Curtis-Wright Corp., 299 U.S. 319.

Juror Selection in High-Profile Capital Punishment Cases

By Caitlin Barbas 

The long-awaited Boston Marathon trial in the Federal Court of the District of Massachusetts has been further delayed, but not only due to the blizzard. Concerns over the composition of the jury pool in the capital punishment case have also led to a reduction in the efficiency of the trial process. The difficulties to find a suitable jury in this high profile case underline the problems often associated with federal court juror selection and the eventual jury composition when trying capital punishment cases. 

It is critical to remember that Dzhokhar Tsarnaev is facing charges brought forth by a Federal Prosecutor and will therefore be tried in the Federal Court System in the District of Massachusetts. The Federal Court Systems, composed of 94 court districts, and State Court Systems are geographically overlapping, however, they are directed by separate constitutions, the U.S. Constitution for Federal and the individual State Constitution for State Courts.[1]

Within the Federal Court System, the judge is typically responsible for interviewing potential jurors rather than the attorneys of the case.[2] In Tsarnaev’s case, the judge received a reduced number of potential jurors for direct interviews, as potential jurors were first required to complete a questionnaire.[3] As a means of further rooting out jurors, both the prosecution and the defense teams may submit questions ahead of the judge’s interviews.  Prosecutors and Defense can further their influence on the jury composition through the use of peremptory challenges and challenges of cause. Peremptory challenges allow an attorney to dismiss a potential juror without explanation, while challenges of cause allow attorneys to challenge the potential juror members for a specific reason, such as a strongly held belief, a bias, or extensive knowledge of the case.[4] In a federal death penalty case, both lawyers receive 20 peremptory challenges and an unlimited number of challenges of cause. Ultimately the judge and the lawyers of the case will settle on a jury of 12 peers with a range of two to six alternates. All members of jury, including the alternates, must be members of the district where the case is being tried.

There are multiple factors which can impact the selection of potential jurors and external factors can often play an important role in the ability of the jury to remain fully impartial while listening to the facts of the case. Important factors to consider when studying juror composition in a death penalty case include the location of the trial, the diversity of the jurors, and the level of publicity the case receives. These three factors will be analyzed through the study of the search for jurors in the Boston Marathon bombing.

The location of the Tsarnaev trial provides difficulties for both the prosecution and the defense. First, federal prosecutors will be searching for a death penalty conviction in a state which does not have a strong history of the death penalty. While Massachusetts has not allowed for capital punishment in its State court system since 1984 (when it was found unconstitutional by the State legislature), Tsarnaev is being tried in the Federal Court System. Jurors from a state where the local governing body has determined capital punishment to be unjust are likely to have underlying and subconscious aversions to the use of the death penalty against the defendant.[5] On the flip side, the location of the trial in Boston could also harm the defense. According to the questionnaires filled out by the potential jurors, nearly 68% already believe Tsarnaev is guilty.[6] The jury of peers will consist of Massachusetts residents who may have a connection to the defendant’s alleged actions, whether this is through residency in the area, attending the marathon, acquaintance with victims, or watching the news covering the high profile case.[7] This predetermined guilt, even if a subconscious association of the defendant with the crime, can present a much more difficult trial for the defense.

            The diversity of a jury is often criticized during death penalty trials as being too like-minded. Though opinions vary between individuals, many groups are often viewed as a whole in their opinion of capital punishment.[8] As the court seeks to dismiss jurors who are either strongly for or against the death penalty, the result is a group of jurors who typically believe the death penalty is a suitable punishment in certain instances.[9] There is argument that the loss of potential jurors who would be opposed to the death penalty allows for supporters to gain access to the jury and often results in a lack of representation from groups such as Women or Democrats.[10] In Tsarnaev’s case, Catholic groups were cited as being frequently rejected from the jury due to their aversion to the death penalty.[11]

            Adding further to the issue of diversity, lawyers note that when all jurors believe the death penalty is justified in certain instances the jury will be easily convinced of applying the death penalty due to the fact that their government is proposing the punishment. In an interview with the Washington Post, former military lawyer and defense attorney for Khalid Sheik Mohammed, Jason Wright explained this phenomenon: “In any death penalty case the deck is stacked against you the moment you walk …The government has already notified the jury that it is seeking to kill someone. So there is a bias already built into the system.”[12]

            The high-profile levels of the case can also prompt difficulties, as potential jurors try to hide strong beliefs or biases in an effort to gain a spot in a publicized trial. This can undermine both the prosecution or defense arguments, depending on which side the juror supports. A Boston Globe interview with former Federal prosecutor, George Vien, explained the difficulty this could bring to the prosecution team as “prosecutors — given the need for a unanimous verdict — have to be particularly alert for the juror who hides an aversion to the death penalty but ‘wants the celebrity of being the controversial juror.’”[13]

            Juror selection remains a difficult challenge to defense and prosecution teams of capital punishment cases. The juror composition and juror selection process on these death-penalty cases have caused considerable controversy. As can be seen in the Tsarnaev trial, where the initial pool of jurors was 1,373, the practices necessary for cutting down the juror pool can be costly and time-consuming. Prosecutors and defense attorneys have attempted to rectify some of these problems faced by lawyers in capital punishment cases. For example, prosecutors may provide a specific detailing of events leading to the execution of the defendant, which will often be graphic enough for a potential juror to change his or her mind regarding their stance on capital punishment.[14] Despite these efforts, there is no easy way to uniform the juror selection process as each case possesses unique qualities that will impact the juror selection.

           

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[1] United States Courts. Federal Judiciary, n.d. Web. 26 Jan. 2015. <http://www.uscourts.gov/FederalCourts.aspx>.

[2] "What Happens in a Federal Criminal Case." Federal Defenders of New York. Federal Defenders of New York, 2015. Web. 26 Jan. 2015. <http://federaldefendersny.org/information-for-client-and-families/understanding-my-federal-case.html>.

[3] Wen, Patricia, and Milton Valencia. "Lawyers hunt too-eager Tsarnaev jurors." Boston Globe. The Boston Globe, 26 Jan. 2015. Web. 26 Jan. 2015. <http://www.bostonglobe.com/metro/2015/01/25/lawyers-watch-for-too-eager-tsarnaev-jurors/Uzq8Xf0Vq29oLMVahcpSAO/story.html>.

[4] Legal Dictionary. LAWCOM, n.d. Web. 26 Jan. 2015. <http://dictionary.law.com/>.

[5] Seelye, Katharine Q. "Surveys Show Bias of Potential Jurors in Boston Bombing Trial." The New York Times. The New York Times, 22 Jan. 2015. Web. 26 Jan. 2015. <http://www.nytimes.com/2015/01/23/us/boston-marathon-case-surveys-tell-of-troubles-in-selection-of-a-jury.html?_r=1>.

[6] Ibid.

[7] Ibid.

[8] Lavoie, Denise. "'Death-Qualified' Juror Search Slows Marathon, Theater Cases." Associated Press. The Associated Press, 25 Jan. 2015. Web. 26 Jan. 2015. <http://hosted.ap.org/dynamic/stories/U/US_DEATH_PENALTY_JURIES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>.

[9] Ibid.

[10] Ibid.

[11] Macdonald, G. Jeffery. "Boston bombing jury excludes some Catholics." The Washington Post. The Washington Post, 26 Jan. 2015. Web. 26 Jan. 2015. <http://www.washingtonpost.com/national/religion/boston-bombing-jury-excludes-some-catholics/2015/01/26/f6ae9cde-a594-11e4-a162-121d06ca77f1_story.html>.

[12] Goldman, Adam. "As Bomb Trial Nears, Boston Braces for a Painful Recounting." The Washington Post. The Washington Post, 25 Jan. 2015. Web. 26 Jan. 2015. <http://www.washingtonpost.com/world/national-security/as-bomb-trial-nears-boston-braces-for-a-painful-recounting/2015/01/25/79fd7988-a0b9-11e4-903f-9f2faf7cd9fe_story.html>.

[13] Wen, Patricia, and Milton Valencia. "Lawyers hunt too-eager Tsarnaev jurors." Boston Globe. The Boston Globe, 26 Jan. 2015. Web. 26 Jan. 2015. <http://www.bostonglobe.com/metro/2015/01/25/lawyers-watch-for-too-eager-tsarnaev-jurors/Uzq8Xf0Vq29oLMVahcpSAO/story.html>.

[14] Ibid.