Ted Cruz: No, TPP is NOT a ‘living agreement’

The Right Scoop ^ | Jun 12, 2015

[SoConPubbie]

I know this is probably moot for now, but I think it’s important that we have all the information. Cruz went to the trouble of putting this on his website today as a further explanation of his position on TPA/TPP to conservatives.

Here is the portion mentioned in the title:

Isn’t TPP a “living agreement”?
That particular phrase—a foolish and misleading way to put it—is found in the “summary” portion of one particular section of the draft agreement. That section allows member nations to amend the agreement in the future, expressly subject to the approval of their governments. Thus, if some amendment were proposed in the future, Congress would have to approve it before it went into effect.

The full document is below:

Senator Cruz entirely understands the widespread suspicion of the President. Nobody has been more vocal in pointing out the President’s lawlessness or more passionate about fighting his usurpation of congressional authority.

Senator Cruz would not and will not give President Obama one more inch of unrestricted power.

There have been a lot of questions and concerns about the ongoing Pacific trade negotiations. Many of those concerns, fueled by the media, stem from confusion about Trade Promotion Authority (TPA) and the proposed Trans-Pacific Partnership (TPP). Let’s unpack the issues one by one.

 
What are TPA and TPP?
TPA stands for Trade Promotion Authority, also known as “fast track”. TPA is a process by which trade agreements are approved by Congress. Through TPA, Congress sets out up-front objectives for the Executive branch to achieve in free trade negotiations; in exchange for following those objectives, Congress agrees to hold an up-or-down vote on trade agreements without amendments. For the past 80 years, it has proven virtually impossible to negotiate free-trade agreements without the fast-track process.

TPP stands for Trans-Pacific Partnership. TPP is a specific trade agreement currently being negotiated by the United States and 11 other countries, including Canada, Japan, Australia, and New Zealand. China is not a negotiating partner. There is no final language on TPP because negotiations are still ongoing and have been since late 2009. Neither the Senate nor the House has voted yet on the TPP. There will be no vote on TPP until the negotiations are over and the final agreement is sent to Congress.

 
Some Key Facts:

• Neither the Senate nor the House has voted yet on the TPP.
• Congress is the only entity that can make U.S. law and nothing about TPP or TPA could change that.
• TPA gives the Congress more control up-front over free trade agreements.
• TPA mandates transparency by requiring all trade agreements (including TPP) to be made public for at least 60 days before the Congress can act on them.

 
Does TPA give up the Senate’s treaty power?
No. Under the Constitution, there are two ways to make binding law: (1) through a treaty, ratified by two-thirds of the Senate, or (2) through legislation passed by a majority of both Houses of Congress. TPA employs the second constitutional path, as trade bills always have done. It has long been recognized that the Constitution’s Origination Clause applies to trade bills, requiring the House of Representatives’ involvement.

 
Does the United States give up Sovereignty by entering into TPP?
No. Nothing in the agreement forces Congress to change any law. TPA explicitly provides that nothing in any trade agreement can change U.S. law. Congress is the only entity that can make U.S. law, and Congress is the only entity that can change U.S. law. Nothing about TPP or TPA could change that.

 
Does Senator Ted Cruz support TPP?
Senator Cruz has not taken a position either in favor or against TPP. He will wait until the agreement is finalized and he has a chance to study it carefully to ensure that the agreement will open more markets to American-made products, create jobs, and grow our economy. Senator Cruz has dedicated his professional career to defending U.S. sovereignty and the U.S. Constitution. He will not support any trade agreement that would diminish or undermine either.

 
Does Senator Ted Cruz support TPA?
Yes. Senator Cruz voted in favor of TPA earlier this year because it breaks the logjam that is preventing the U.S. from entering into trade deals that are good for American workers, American businesses, and our economy. Ronald Reagan emphatically supported free trade, and Senator Cruz does as well. He ran for Senate promising to support free trade, and he is honoring that commitment to the voters.

Free trade helps American farmers, ranchers, and manufacturers; indeed, one in five American jobs depends on trade, in Texas alone 3 million jobs depend on trade. When we open up foreign markets, we create American jobs.

TPA also strengthens Congress’ hand in trade negotiations, and provides transparency by making the agreement (including TPP) public for at least 60 days before the Congress can act on any final agreement. Without TPA, there is no such transparency, and the Congress’ role in trade agreements is weaker.

 
Is TPA Constitutional?
TPA and similar trade authority has been upheld by the Supreme Court as constitutional for more than 100 years.

 
Does TPA give the President more authority?
No. TPA ensures that Congress has the ability to set the objectives up-front for free trade agreements.

Trade Promotion Authority has been used to reduce trade barriers since FDR. When Harry Reid took over the Senate, he killed it. History demonstrates that it is almost impossible to negotiate a free-trade agreement without TPA. Right now without TPA, America is unable to negotiate free-trade agreements, putting the United States at a disadvantage to China, which is taking the lead world-wide. It is not in America’s interests to have China writing the rules of international trade.

Moreover, Obama is going to be president for just 18 more months. TPA is six-year legislation. If we want the next president (hopefully a Republican) to be able to negotiate free-trade agreements to restart our economy and create jobs here at home then we must reinstate TPA. With a Republican president in office, Senate Democrats would almost certainly vote party-line to block TPA, so now is the only realistic chance.

 
How can Senator Cruz trust Obama?
He doesn’t. Not at all. No part of Senator Cruz’s support for TPA was based on trusting Obama. However, under TPA, every trade deal is still subject to approval by Congress. If the Obama Administration tries to do something terrible in a trade agreement, Congress can vote it down. And most congressional Democrats will always vote no—because union bosses oppose free trade, so do most Democrats—which means a handful of conservative congressional Republicans have the votes to kill any bad deal. That’s a serious check on presidential power.

 
Isn’t TPP a “living agreement”?
That particular phrase—a foolish and misleading way to put it—is found in the “summary” portion of one particular section of the draft agreement. That section allows member nations to amend the agreement in the future, expressly subject to the approval of their governments. Thus, if some amendment were proposed in the future, Congress would have to approve it before it went into effect.

 
But isn’t TPA a secret agreement?
No, it is not. The full text of TPA (fast track) is public. What the Senate just voted for was TPA, not TPP.

Right now, the text of TPP is classified. That is a mistake. Senator Cruz has vigorously called on the Obama administration to make the full text of TPP open to the public immediately. The text being hidden naturally only fuels concerns about what might be in it. Senator Cruz has read the current draft of TPP, and it should be made public now.

Critically, under TPA, TPP cannot be voted on until after the text has been public for 60 days. Therefore, everyone will be able to read it long before it comes up for a vote.

 
Couldn’t Obama use a trade agreement to grant amnesty to illegal immigrants?
No. There is one section of TPP that concerns immigration, but it affects only foreign nations—the United States has explicitly declined to sign on to that section.

Moreover, Senator Cruz introduced a TPA amendment to expressly prohibit any trade deal from attempting to alter our immigration laws.

Two Republican Senators (Lindsey Graham and Rand Paul) blocked the Senate’s consideration of that amendment, but the House of Representatives has agreed to include that language in the final text of the trade legislation. Thus, assuming the House honors that public commitment, federal law will explicitly prohibit any trade deal from impacting immigration.

And, regardless, no trade agreement can change U.S. law; only Congress can change U.S. law.

[SoConPubbie]

The more he spins this issue, the more he convinces people they’re being hustled.

Nope, not so.

[savedbygrace]

This press release is so full of misstatements

Unless you list them and explain why each is a misstatement, this is merely an unsubstantiated claim.

[RKBA Democrat]

Blessed by the same scotus that blessed abortion on demand and obamacare. Their “blessing” isnt worth a pitcher of warm spit.

[SoConPubbie]

Blessed by the same scotus that blessed abortion on demand and obamacare. Their “blessing” isnt worth a pitcher of warm spit.

True, however, we shouldn't mix issues should we?

Just because they were wrong on Dred Scott, Abortion, Obamacare, does not mean or imply the were wrong on this issue.

[RKBA Democrat]

I went through that a few weeks ago. It wasn’t fun. I don’t like admitting I got taken for a ride.

I got taken big time.

The whole thing boiled down to... this is either (a) incredible stupidity or (b) treachery.

Ted Cruz isn’t a stupid man.

[napscoordinator]

I must admit I am enjoying the heck out of this. I LOVE it when people wake the heck up from a nightmare. I of course knew it all along. Some are slower then others but I am just glad they are realizing before our country made a huge mistake (which really never would have happened but just in case....I LOVE LOVE LOVE this).

[nathanbedford]

Unless you list them and explain why each is a misstatement, this is merely an unsubstantiated claim.

I trust by the time you reach the foot of this explanation you will count the claim as substantiated:

Congress is the only entity that can make U.S. law and nothing about TPP or TPA could change that.

FALSE: the courts have upheld congressional-executive agreements of which this is a type and even upheld naked executive agreements.

Congress is the only entity that can make U.S. law and nothing about TPP or TPA could change that.

FALSE: if a president must find 2/3 of the Senate to consent to his treaty he must as a practical matter invite the Senate in on the takeoff if he wants them there at the landing. This bill reverses the power structure so that the president need only find half the Senate to agree with his negotiating positions, he has less need of recalcitrant senators so he will concede less "control" to them in the negotiations. Since no president has ever been denied his fast-track treaty it is clear that Congress has exercised less not "more" control.

TPA mandates transparency by requiring all trade agreements (including TPP) to be made public for at least 60 days before the Congress can act on them.

TRUE BUT FALSE: The words are accurate but the meaning is utterly deceptive. By the time the treaty is presented under a fast-track regimen the game is over and 60 days of transparency simply will not undo all of the influences peddling that has brought us to that point.

Does TPA give up the Senate’s treaty power? No. Under the Constitution, there are two ways to make binding law: (1) through a treaty, ratified by two-thirds of the Senate, or (2) through legislation passed by a majority of both Houses of Congress.

FALSE:The Constitution specifies only one way to make a treaty and that is with two thirds consent of the Senate the second way described here is not provided for in the Constitution as asserted but has simply accreted over time.

TPA explicitly provides that nothing in any trade agreement can change U.S law.

FALSE: no Congress can bind the next.

Senator Cruz has not taken a position either in favor or against TPP.

TRUE BUT MISLEADING: because Senator Ted Cruz has helped put TPA in place, TPP is a done deal and so his final vote against it will be irrelevant just as other senators have indulged the fraud of voting for cloture of filibuster and then voting against the bill.

And, regardless, no trade agreement can change U.S. law; only Congress can change U.S. law.

FALSE!

[savedbygrace]

You are mis-reading and misunderstanding. I will number each example.

1) Only Congress can make U. S. law. The Court might have allowed the results of the two examples to remain, but the Court did not call it law.

2) It is true that Congress is the only entity that can make U.S. law and nothing about TPP or TPA could change that. Neither TPP nor TPA is a treaty, so your argument with regard to treaties is moot.

3) I suspect this President would not abide by the 60 day rule, so I’ll give you that one. Still, Cruz did not say the Obama would definitely abide by it, so it’s still a lose for you.

4) You mis-read this one. He said there are two ways to make LAW. Only one of the two ways is with regard to treaties. Also, once again, neither TPP nor TPA is a treaty, so your point is again lost.

5) Isn’t TPA for a specified number of years?

[savedbygrace]

Forgot to add this note of clarification:

I believe that the agreement that is being negotiated is actually a treaty, but this is not the first time that an administration and a Congress have agreed to call a treaty an agreement so they could avoid the 2/3 vote requirement.

If they actually called it a treaty, none of the nonsense we are discussing would be happening.

[cynwoody]

Is TPP genuinely unbeatable by anything short of a hurricane making landfall in the District, no matter how bad the bill is?

That's what the protectionists would have you believe. But the truth is, the 535 are free to vote as they will, having heard at least 60 days' worth of input from their constituents, re the final version of TPP.

The main collision here seems to be between the free trade view and the tariff view of the world—which is the Democrats' turf. That's where your goal is to pass special tariffs to protect your friends and contributors—as opposed to a free-for-all that rewards innovation. My read of history is that the latter system is more just and involves less government interference, and embodies what has made America succeed.

That's absolutely true!

[nathanbedford]

I think we live on different planets. Congressional-executive agreements i.e. laws between the United States and foreign countries have been routinely upheld by the Supreme Court. These have been upheld but nevertheless are substitutes for treaties requiring two thirds approval by the Senate. My view and the view of Lawrence Tribe (proving that law as well as politics makes for strange bedfellows) is that this is an unconstitutional act. My view and Lawrence Tribe's view is distinctly minority.

These are "laws." In addition to this manner of making laws there is a so-called "executive agreement" these are commitments made by the president of the United States without authority from Congress. The Supreme Court has upheld these naked executive agreements countless times and they have the effect of "law." I refer you to the 1983 Hofstra Law Review article which I cannot cite but which you can simply Google.

The main problem with all of this is that we know it is a flimflam. Once fast-track is made law on this trade agreement, the final product is inevitably going to be approved by the reduced majority required for the Senate and in the House. We have seen these omnibus bills with increasing frequency, a notorious example of which is Obamacare. Another example: the empowerment of the federal bureaucracy through the Environmental Protection Agency. If you deny that the Environmental Protection Agency has made "law" over the subsequent decades we do indeed live on a different planet.

I decline to reason backwards from admiration of an individual candidate. I prefer to form my political judgments about candidates reasoning from their position on issues toward the individual.

Ted Cruz has paved the way for this omnibus legislation which no doubt contains environmental and immigration provisions with which the executive will make law just as the executive is making law under the environmental protection act and under Obamacare. Now that fast-track has been approved with the help of Ted Cruz, it is all over.

Ted Cruz will now vote against the final TPP and claim that he has opposed it all along.

Many will believe him.

[savedbygrace]

Rather than defending your assertions, you chose to be non-responsive, and you demonstrated a lack of logic and reason.

Buh bye.

[nathanbedford]

Look up the law, read the damp law review article!

[savedbygrace]

Another non-responsive reply.

[savedbygrace]

I will place more stock in the constitutional legal opinion of a man who has argued a number of cases before the USSC, and won most of those, than the opinion of an unknown person posting on the Internet.

How many arguments before the USSC have you made?

[Democrat_media]

you are right 2/3rds lowered to only half. that is a dictatorship

The Constitution requires that 66% of the Senate approve any treaty (and amendments are allowed).

With this fast track or trade promotion Authority bill they want to lower it to 51% and no amendments. that's a dictatorship and the end of America. Obama can basically rewrite USA laws as treaties override USA laws.

It would be ridiculously easy to pass a treaty with only a 51% up or down vote , no debates and no amendments.

This is unconstitutional. We want amendments that could kill a bad bill as the Constitution allows. We want 66% approval not 51% .Call Congress . Tell them to vote no on TPA (Trade promotion authority).

[nathanbedford]

I decline to reason backwards from admiration of an individual candidate. I prefer to form my political judgments about candidates by reasoning from their position on issues toward the individual.

Do you realize that your method of argumentation consists of veering between adulation of the individual and ad hominem against those with whom you disagree? Your argument consists of resort to authority while accusing the other side of failing to produce evidence, evidence which you adamantly ignore.

[savedbygrace]

You must be quoting someone else, because I did not say that. Maybe you should ping that person with your comment.

[nathanbedford]

It is quite obvious that you either do not comprehend or simply do not read that which is addressed to you.

[nathanbedford]

It is quite obvious that you either do not comprehend or simply do not read that which is addressed to you.