Article 1 Section 8 of the Constitution of the United States says that Congress has the power (listed with its other legislative powers) “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” In the first 200 years of our history Congress fully exercised these powers and many important debates on tariff and other issues engaged the legislature. Over the last few decades, however, as multi-national corporations have increasingly dominated our commerce and our economy has been integrated into a global one, presidents have seized those congressional powers using the Fast Track mechanism.
Fast Track has only been used 16 times in the history of our nation, often to enact the most controversial of “trade” pacts, such as the North American Free Trade Agreement (NAFTA) and the establishment of the World Trade Organization (WTO). Meanwhile, hundreds of less controversial U.S. trade agreements have been implemented without resort to Fast Track, showing that the extraordinary procedure is not needed to approve trade agreements.
Fast Track allowed the executive branch to unilaterally select partner countries for “trade” pacts, decide the agreements’ contents, and then negotiate and sign the agreements — all before Congress had a vote on the matter. Normal congressional committee processes were forbidden, meaning that the executive branch was empowered to write lengthy legislation on its own with no review or amendments. These executive-authored bills altered wide swaths of U.S. law unrelated to trade – food safety, immigration visas, energy policy, medicine patents and more – to conform our domestic policies to each agreement’s requirements. And, remarkably, in our system of theoretically co-equal branches of government, Fast Track let the executive branch control Congress’ voting schedule. Unlike any other legislation, both the House and Senate were required to vote on a Fast Tracked trade agreement within 90 days of the White House submitting it. No floor amendments were allowed and debate was limited.
Because Fast Track’s dramatic shift in the balance of powers between branches of the U.S. government occurred via an arcane procedural mechanism, it obtained little scrutiny – until recently. Its use by Democratic and Republican presidents alike to seize Congress’ constitutional prerogatives, “diplomatically legislate” non-trade policy, and preempt state policy, has made it increasingly controversial.
A president cannot obtain Fast Track empowerment without a vote of Congress. President Clinton, renowned for trade expansion, only had Fast Track authority for two of his eight years in office due to congressional opposition. The last time Congress authorized Fast Track was in 2002, with a 3:30 am vote before a congressional recess in which the antiquated mechanism was approved by just three votes. Since 2007, Congress has refused to authorize this extreme procedure, even after its proponents tried to escape Fast Track’s bad reputation by renaming it “Trade Promotion Authority.”
As a candidate, President Obama said he would replace this anti-democratic process. But now he is asking Congress to grant him Fast Track’s extraordinary authority – in part to try to overcome growing public and congressional opposition to his controversial Trans-Pacific Partnership (TPP) and Trans-Atlantic Free Trade Agreement (TAFTA) deals. The Hatch Bill filed in mid-April 2015 is the strongest version of Fast Track to date and the intent is to rush it through congress. Unfortunately, President Obama has become its main champion and he is joined by the Republican leadership in the Senate and the House of Representatives. Fortunately courageous leaders like Senator Elizabeth Warren To prevent an expansion of this unfair “trade” model, Congress must not allow the executive branch to once again gain Fast Track’s undemocratic powers.