TPA “Fast Track” – What Every American Should Know

When everyone seems to be contradicting everyone else, it’s a good bet that at least someone is ill-informed, confused or straight-up lying.  We’re going to try to explain TPA as we understand it and as clearly as we can.  If any of the below is wrong, we will be first to admit and correct it.  But after reading the TPA, we think we have this right.

In order to understand what’s going on with the TPA, a little background civics is necessary.

Our Constitutional Structure:

We’ve seen a lot of nonsense being spread about U.S. trade policy as if it were bound by some completely separate constitutional structure than every other area of U.S. policy.  U.S. trade policy is, in theory, under the same general constitutional structure as every other area of U.S. policy.

Under the U.S. Constitution, there are three separate branches of government—the Legislative, the Executive and the Judicial.  Their general responsibilities in lawmaking are as follows:

Legislative (Congress)

Executive (White House)

Judiciary (Courts)

Enact STATUTORY LAW.

Issue and enforce REGULATORY LAW.

Interpret and apply STATUTORY and REGULATORY law; develop CASE LAW.[3]

In theory, the three branches are separate and coequal, with each having its role to play in lawmaking.

The Supremacy Clause and the Hierarchy of Law:

In addition to the separate branches, the U.S. Constitution also sets up a hierarchy of law.[4]  Whenever there is a conflict between two laws, the law having a higher position in the hierarchy controls.  Here is the basic hierarchy of law under the Constitution:

U.S. Constitution

Federal Statutory law, U.S. Treaties

Federal Regulatory Law / Executive Order

State Law

Thus:

A federal statute that conflicts with the U.S. Constitution is null and void.

A regulation or executive order that conflicts with a federal statute is null and void.

A state law that conflicts with a treaty is null and void.

Understanding this hierarchy is critical to understanding what’s going on with TPA “Fast Track.”

Amendment of the Law:

In general, bodies of law higher up in the hierarchy of law are more difficult to change:

U.S. Constitution Congress three-fourths of the state legislatures
Treaty President two-thirds of the U.S. Senate
Federal Statute House 60% of Senate[5] President
Federal Regulation / Executive Order Executive Branch

Thus, the President can negotiate international agreements, issue Executive Orders and issue new regulations, but only within the boundaries established under constitutional and statutory law.  Any international agreement, Executive Order or federal regulation that conflicts with federal constitutional or statutory law is null and void.

The President’s Role in Trade Policy:

All that said, the Constitution and federal statutory law place in the hands of the President a great deal of power over international matters.  There are certain areas of international relations which the President controls almost unilaterally, without any need for the consent of the Congress.  One example of this power relates to the importation of firearms.  Under existing law, the President of the United States has a great deal of power over the importation of firearms, and recent presidents have used this power from time to time as a lever, to reward and punish foreign governments.[6]  With or without the proposed “Fast Track” TPA, the President will continue to retain this power, and will be able to wield the power with or without the specific consent of Congress.

So, What is TPA “Fast Track” For?

If Obama already has power over the actions of the Executive Branch, and controls so many areas of trade policy, what is TPA “Fast Track” all about?

The short and simple answer: TPA “Fast Track” is largely about changing federal statutory law via expedited congressional procedures.

Obama can issue Executive Orders and revise regulations to his heart’s content, but he can only do so to the extent that the Executive Orders and regulations do not conflict with federal statutory law.  Under the hierarchy of law, executive orders and regulations by Obama inconsistent with statutory law are, in theory, null and void.  Obama cannot, however, rewrite federal statutory law unilaterally.  In order to rewrite federal statutory law, Obama needs the cooperation of Congress (see above).

Unfortunately for Obama and his allies, passing statutory changes through Congress can be a difficult and lengthy process.  Both chambers must conduct hearings and receive public input, the proceedings are generally open to the public, there is extended debate on the pros and cons of the bills, there is the potential for amendment and both chambers must pass the bill in the exact same form.   There are many procedural rules that must be followed, including but not limited to the Senate’s “cloture” rule, by which most bills require a 60-vote supermajority in order to be voted on in the Senate.  TPA “Fast Track” does away with a great deal of this—in particular, it eliminates the possibility for extended debate, for amendment and the 60-vote threshold in the Senate for any bills that fall within its scope.

The fundamental change brought on via TPA “Fast Track” is that Obama can pass portions of his agenda by “fast-tracking” controversial changes in federal statutory law that would simply not be possible without it.

Let us repeat this: TPA “Fast Track” is designed to fast track changes to U.S. law that would not be possible under normal congressional procedures.

What Changes to U.S. Statutory Law Will be Implemented via TPA “Fast Track”?

At this point, we have no way of knowing which of our existing laws will be changed via TPA “Fast Track” or how they will be changed.  The actual changes are considered top secret and highly confidential.  After passage of TPA “Fast Track,” Obama is (theoretically) required to advise Congress as to the changes to be made to U.S. law.  This is expressly provided in the TPA bill.  Some examples:

Section 3 (b)(3)(B)(ii):

if changes in existing laws or new statutory authority are required to implement such trade agreement or agreements, only such provisions as are strictly necessary or appropriate to implement such trade agreement or agreements, either repealing or amending existing laws or providing new statutory authority.[7]

Section 5 (b)(2)(C):

…the implementation of the agreement under section 6, including the general effect of the agreement on existing laws.[8]

Section 6 (2)(A)(i):

…an explanation as to how the implementing bill and proposed administrative action will change or affect existing law[9]

Section 6 (a)(1)(C):

…within 60 days after entering into the agreement, the President submits to Congress a description of those changes to existing laws that the President considers would be required in order to bring the United States into compliance with the agreement.[10]

So, to the extent there was any confusion on this point: TPA “Fast Track” authority is largely about a means of changing U.S. law.

The Congressional Research Service has expressly addressed this question, as follows:

Would legislation implementing the terms of a trade agreement submitted under the TPA supersede existing law?

If the implementing legislation amends or changes U.S. law, then it would supersede existing U.S. law. However, under previous grants of TPA, changes to U.S. law made by an implementing bill are to be “necessary or appropriate” to implement the commitments under the trade agreement. TPA-2015 changes this provision to “strictly necessary or appropriate.”[11]

If anyone tells you that the above is in some way incorrect, you can ask them this simple “yes or no” question:

“Will “fast track” authority be used to make changes in the laws of the United States?”

If they give you some long-winded answer, demand a simple, “yes or no.”  The honest answer is “YES.”

Does TPA Require 60-days of Review of the Final Agreement?

In a word, NO.  The TPA bill does not require the final legal text to be published for 60 days before congressional action.  The TPA bill merely requires that Obama publish the text of the agreement in whatever form it exists 60-days prior to his signature:

Section 6 (a)(1)(B):

the President, at least 60 days before the day on which the President enters into the agreement, publishes the text of the agreement on a publicly available Internet website of the Office of the United States Trade Representative[12]

Later on, after he signs an agreement, Obama IS required to submit to Congress the “final legal text” of the agreement as signed:

the President, at least 30 days before submitting to Congress the materials under subparagraph (E), submits to Congress—

(i)a draft statement of any administrative action proposed to implement the agreement; and

(ii)a copy of the final legal text of the agreement;[13]

Obama is obligated to publish “the text” of the proposed agreement in whatever form it may exist 60 days prior to execution.  He is then obligated to publish “the final legal text” of the agreement that he actually signed.  In other words, “the text” and “the final legal text” refer to two different things.  If the “final legal text” was exactly the same as “the text” published 60 days prior to signature, there would be no need for “the final legal text” to be submitted to Congress.  In other words, the “text of the agreement” refers to a preliminary text of the agreement, 60 days prior to final agreement and signature.

Question for you to ponder: do you think there’s any chance in the world that Barack Obama might delay the inclusion of controversial provisions until after the publication date and then work those in within the last 60 days?

 


[1] Member, State Bar of Texas; Juris Doctorate, University of Texas School of Law, 1999.  (Ken@Emanuelson.us, 469-363-5808)

[2] Member, State Bar of Texas; Juris Doctorate, Texas A&M University School of Law. (wnorred@norredlaw.com, 817-253-9999).

[3] Some may dispute whether it is proper to refer to the body of judicial decisions as “case law.”  The terminology, while interesting to discuss, is not particularly relevant to this discussion.  While there may be a better term, the body of judicial decisions is generally referred to as “case law.”

[4] See U.S. Const, Article VI, para. 2. (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”)

[5] The 60-vote cloture rule in the Senate is a product of Senate procedure.

[6] See, e.g., Obama Administration Bans Import of Popular Russian Firearms,  https://www.nraila.org/articles/20140717/obama-administration-bans-import-of-popular-russian-firearms

[11] Congressional Research Service, “Trade Promotion Authority (TPA): Frequently Asked Questions,” p. 30. (emphasis added).  Beyond the up / down vote, there is no specific enforcement mechanism for the “strictly necessary or appropriate” language.

What’s Wrong with ObamaTrade / TPA / TPP /

Fellow Patriots:

As you may have heard, the Senate Republicans have voted for TPA, and the House Republican leadership is bringing it up this Friday.

TPA will, in turn, “fast track” a series of so-called “trade agreements” from Obama (TPP, TTIP and TISA) that are being kept SECRET and unavailable to the American public.

Grassroots Americans on both the RIGHT and the LEFT are incensed by what is perceived as a rush by Republican leadership to pass this controversial legislation.  Here are a few of the reasons why:

Another TPP lie exposed: How Medicare is getting stiffed in Obama’s massive trade deal

As National Committee to Preserve Social Security and Medicare President and CEO Max Richtman told the National Journal, “Apparently using Medicare as a piggy bank to pay for everything under the sun has become the new legislative norm for Congress.” The signature single-payer health care program for seniors has become a Congressional slush fund.

http://www.salon.com/2015/05/19/another_trans_pacific_partnership_lie_exposed_how_medicare_is_getting_stiffed_in_obamas_massive_trade_deal/

Groups Fume That Medicare Cuts May Pay for Trade Bill

A coalition of provider groups, including the American Hospital Association and the American Medical Association, sent a letter to senators Tuesday opposing the bill.  “Hospitals, physicians, nursing homes, and home health and hospice providers have already absorbed hundreds of billions of dollars in cuts to the Medicare program in recent years,” they wrote. “Additionally alarming is the use of Medicare cuts to pay for non-Medicare-related legislation, a precedent that we believe is unwise.”

http://www.nationaljournal.com/health-care/outside-groups-fume-that-medicare-cuts-may-pay-for-trade-bill-20150421

EFF: What Is the Trans-Pacific Partnership Agreement (TPP)?

The Trans-Pacific Partnership (TPP) is a secretive, multinational trade agreement that threatens to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement. The main problems are two-fold:…Leaked draft texts of the agreement show that the IP chapter would have extensive negative ramifications for users’ freedom of speech, right to privacy and due process, and hinder peoples’ abilities to innovate.

https://www.eff.org/issues/tpp

CONSERVATIVE TALK RADIO SLAMS TRANS-PACIFIC PARTNERSHIP

Nationally syndicated host Mark Levin on his show Wednesday evening slammed big business lobbying over the agreement. “Don’t you see the pressure waged by the Chamber of Crony Capitalism and all the rest?” Levin remarked, referring to the U.S. Chamber of Commerce, the largest corporate lobbying group in Washington.

https://firstlook.org/theintercept/2015/06/11/conservative-talk-radio-turns-trans-pacific-partnership/

MUST LISTEN: Mark Levin interviews Sen. Jeff Sessions (R-AL) on ObamaTrade deal

Jeff Sessions explains to Mark Levin how bad this this ObamaTrade bill is, that it even creates an international community that is in many ways similar to how the European Union began, putting us in partnership with 12 countries and giving them the power to make laws or rules that put us in a bind, essentially ceding our sovereignty to them.

http://therightscoop.com/must-listen-mark-levin-interviews-jeff-sessions-on-obamatrade-deal/

Revealed Emails Show How Industry Lobbyists Basically Wrote The TPP

“[T]he USTR has now released a bunch of internal emails concerning TPP negotiations, and IP Watch has a full writeup showing how industry lobbyists influenced the TPP agreement, to the point that one is even openly celebrating that the USTR version copied his own text word for word.”

https://www.techdirt.com/articles/20150605/11483831239/revealed-emails-show-how-industry-lobbyists-basically-wrote-tpp.shtml

PAUL RYAN’S PELOSI-ESQUE OBAMATRADE MOMENT: ‘IT’S DECLASSIFIED AND MADE PUBLIC ONCE IT’S AGREED TO’

Right now, TiSA and T-TIP text are completely secretive and unavailable for even members of Congress to read while TPP text is available for members to review—although they need to go to a secret room inside the Capitol where only members of Congress and certain staffers high-level security clearances, who can only go when members are present, can read the bill.

http://www.breitbart.com/big-government/2015/06/11/paul-ryans-pelosi-esque-obamatrade-moment-its-declassified-and-made-public-once-its-agreed-to/

REVEALED: THE SECRET IMMIGRATION CHAPTER IN OBAMA’S TRADE AGREEMENT

“The existence of these ten pages on immigration in the Trade and Services Agreement make it absolutely clear in my mind that the administration is negotiating immigration – and for them to say they are not – they have a lot of explaining to do based on the actual text in this agreement,” Rosemary Jenks, the Director of Government Relations at Numbers USA, told Breitbart News following her review of these documents.

http://www.breitbart.com/big-government/2015/06/10/revealed-the-secret-immigration-chapter-in-obamas-trade-agreement/

GOP Sellout? As #ObamaTrade TPA Vote Nears, More Ugly Details Emerge

For example, in addition to the privacy threats exposed by Forbes writer Emma Woollacott, Breitbart reporter Alex Swoyer reveals that “technically any Republican voting for Trade Promotion Authority (TPA) that would fast-track trade deals like the Trans-Pacific Partnership (TPP) trade deal would technically also be voting to massively expand President Obama’s executive authority when it comes to immigration matters [emphasis added].”

http://www.redstate.com/2015/06/10/gop-sellout-obamatrade-tpa-vote-nears-ugly-details-emerge-stopfasttrack/

ALERT! Border Security Funding at Risk in Texas!

A conference call with JoAnn Fleming (Grassroots America) and Dale Huls (Clear Lake TEA Party) sounded the alarm to start calling key TX House Committee members this week.  At stake is continued funding for the Texas National Guard, which has been drawn down to 200 members.  Last week, Lt. Gov. Dan Patrick called for continued funding for border security.  According to public statements and news accounts, Speaker Joe Strausshrugged off Patrick’s call with a notable lack of enthusiasm.
This is NOT about Joe Straus and Dan Patrick.  This is NOT about a political squabble. This is about the safety and security of Texas.  Since Texas is the largest border entry into the US from Mexico, it is a gateway to the interior of the US.  With the dithering of the GOP leadership in Washington, we cannot count on them to secure the border, and Obama’s executive amnesty will attract more and more illegal border crossers!  We are also sitting ducks for terrorists.
 
The people of Texas elected Gov. Greg Abbott and Lt. Gov. Dan Patrick with a mandate to secure the Texas border and deal with the high cost of illegal aliens and criminal activity related to cartels and transnational gangs running rampant in our state.  Abbott and Patrick did not run to the mushy middle in the General Election.  They ran as reformers, and that is what the people of Texas elected them to do.  Now, “We the People” must hold them accountable.
 
If you want funding for border security to continue, you must make your voice heard beginning today!  The Homeland Security & Public Safety Committee meets tomorrow 2/17/15 at 8 am.  Ways & Means meets tomorrow at 8:30 am, and a subcommittee of Appropriations meets on Thursday at 8 AM.  Those are the committees (see below) to call first, but every person on the committees listed below needs to hear from you.  They will make decisions on bills that impact border security.
 
Keep this list handy.  As bills come to the floor of the House, you will need this list again.  It also contains phone numbers for Governor Abbott.  He needs to hear from all of you as well.  Remind him that it is time for Texas to lead on border security and the rule of law!
 
Call these committee members (only GOP listed since they all ran as conservatives and all say they support a secure border).  Simply tell them that you support continued funding of the Texas National Guard and DPS for border security.  Tell them you want funding for the Guard and Operation Strong Safety continued until the end of the budget year and then funded in the upcoming new budget, and you will watch how they vote.
 
TX House – Appropriations Committee Austin phone # Austin Fax # District phone # District Fax #
Chairman, John Otto (Rep) Dist. 18 (512) 463-0570 (512) 463-0315 (936) 258-8135 (936) 258-7190
Trent Ashby (Rep) Dist. 57 (512) 463-0508 (512) 463-5896 (936)634-2762 none listed
Cecil Bell (Rep) Dist. 3 (512) 463-0650 (512) 463-0575 (281)259-3700 (281)259-3706
Greg Bonnen (Rep) Dist. 24 (512) 463-0729 none listed (281)338-0924 none listed
Cindy Burkett (Rep) Dist. 113 (512) 463-0464 none listed (972) 278-7276 none listed
Giovanni Capriglione (Rep) Dist. 98 (512) 463-0690 (512) 463-1004 (817) 431-5339 (817) 431-9885
Sarah Davis (Rep) Dist. 134 (512) 463-0389 (512) 463-1374 (713)521-4474 (713)521-4443
Larry Gonzales (Rep) Dist. 52 (512) 463-0670 (512) 463-1469 (512) 248-2558 none listed
Bryan Hughes (Rep) Dist. 5 (512) 463-0271 (512) 463-1515 (903) 569-8880 (903) 569-8889
Linda Koop (Rep) Dist. 102 (512) 463-0454 (512) 463-1121 (469) 319-0879 none listed
Rick Miller (Rep) Dist. 26 (512) 463-0710 (512) 463-0711 (281) 980-0117 none listed
Dade Phelan (Rep) Dist. 21 (512) 463-0706 (512) 463-1861 none listed none listed
Four Price (Rep) Dist. 87 (512) 463-0470 none listed (806) 374-8787 none listed
John Raney (Rep) Dist. 14 (512) 463-0698 (512) 463-5109 (979) 260-5040 (979) 260-5097
J. D. Sheffield (Rep) Dist. 59 (512) 463-0628 (512) 463-3644 none listed none listed
Gary VanDeaver (Rep) Dist. 1 (512) 463-0692 (512) 463-0902 none listed none listed
27 committee members – majority (16) GOP        
         
         
TX House – Ways and Means Committee  Austin phone # Austin Fax # District phone # District Fax #
Chairman, Dennis Bonnen (Rep) Dist. 25 (512) 463-0564 (512) 463-8414 (979) 848-1770 (979) 849-3169
Dwayne Bohac (Rep) Dist. 138 (512) 463-0727 (512) 463-0681 (713) 460-2800 (713) 460-2822
Angie Chen Button (Rep) Dist. 112 (512) 463-0486 none listed 972-234-8980 972-470-0789
Drew Darby (Rep) Dist. 72 (512) 463-0331 (512) 463-0517 (325) 658-7313 (325) 659-3762
Jim Murphy (Rep) Dist. 133 (512) 463-0514 (512) 463-8715 (713) 465-8800 none listed
Tan Parker (Rep) Dist. 63 (512) 463-0688 (512) 480-0694 (972) 724-8477 none listed
Drew Springer (Rep) Dist. 68 (512) 463-0526 (512) 463-1011 (940) 665 – 8400 none listed
John Wray (Rep) Dist. 10 (512) 463-0516 (512) 463-1051 none listed none listed
11 committee members – majority (8) GOP        
         
         
TX House – Homeland Security & Public Safety  Austin phone # Austin Fax # District phone # District Fax #
Chairman, Larry Phillips (Rep) Dist. 62 (512) 463-0297 (512) 463-1561 (903) 891-7297 (903) 870-0066
DeWayne Burns (Rep) Dist. 58 (512) 463-0538 (512) 463-0897 none listed none listed
Tony Dale (Rep) Dist. 136 (512) 463-0696 (512) 463-9333 none listed none listed
Will Metcalf (Rep) Dist. Dist. 16 (512) 463-0726 (512) 463-8428 (936) 539-0068 (936) 539-0066
Molly White (Rep) Dist. 55 (512)463-0630 (512)463-0937 none listed none listed
John Wray (Rep) Dist. 10 (512) 463-0516 (512) 463-1051 none listed none listed
         
9 committee members – majority (6) GOP        
         
         
TX House – Select Committee Emerging Issues In Texas Law Enforcement Austin phone # Austin Fax # District phone # District Fax #
Chairman, Allen Fletcher (Rep) Dist. 130 (512) 463-0661 (512) 463-4130 (281) 373-5454 (281) 256-9213
Dan Flynn (Rep) Dist. 2 (512) 463-0880 (512) 463-2188 (903) 567-0921 (903) 567-0923
Linda Koop (Rep) Dist. 102 (512) 463-0454 (512) 463-1121 (469) 319-0879 none listed
James White (Rep) Dist. 19 512-463-0490 512-463-9059 (409) 283-3700 (409) 283-3702
         
7 committee members – majority (4) GOP        
         
         
TX House – Select Committee State & Federal Power & Responsibility Austin phone # Austin Fax # District phone # District Fax #
Chairman, Phil King (Rep) Dist. 61 (512) 463-0738 (512) 463-1957 (817) 596-4796 none listed
Paul Workman (Rep) Dist. 47 (512) 463-0652 (512) 463-0565 same same
Charles “Doc” Anderson (Rep) Dist. 56 (512) 463-0135 (512) 463-0642 (254) 754-3892 (254) 754-1604
Travis Clardy (Rep) Dist. 11 (512) 463-0592 (512) 463-8792 (936) 560-3982 (936) 564-0051
Tan Parker (Rep) Dist. 63 (512) 463-0688 (512) 480-0694 (972) 724-8477 none listed
         
7 committee members – majority (5) GOP        
         
         
Also call the House Speaker and Governor Greg Abbott Austin phone # Austin Fax # District phone # District Fax #
House Speaker Joe Straus (Rep) Dist. 121 (512) 463-1000 (512) 463-0675 (210) 828-4411 (210) 832-9994
         
Governor Greg Abbott (512) 463-1782 opinion    
  (512) 463-2000 main #    
Register opinion on the Governor’s web site click here.        
Social media contacts for Governor Abbott:        
Twitter @GregAbbott_TX      
Facebook Greg Abbott      
         
Social media contact info for TX House members can be found here.        
 
For Texas,