In a diary earlier today, The Fast Track Trade Bill Assaults the Constitution, posted by Alan Grayson and co-authored by Bruce Fein, the authors assert that Trade Promotion Authority (TPA) better known as “Fast Track”, is unconstitutional, because it “violates the separation of powers guaranteed in our Constitution.” Naturally, those who strongly oppose the current trade agreement under consideration, or who are opposed to all such trade agreements, would be attracted to the idea that the process by which those agreements are passed violates the constitution. Unfortunately, Grayson and Fein are wrong—Fast Track is constitutional.
To understand why Fast Track is constitutional, it’s important as an initial matter to understand what Fast Track is. Fast Track is simply a law, passed by Congress, that gives the President the authority to formulate the provisions of a bill, and then requires the bill to be put before Congress for up or down votes in both houses, with no opportunity for amendment or filibuster. In this way, Congress bypasses its normal, “slow track” rules for considering and formulating law, or, as Grayson and Fein put it, handcuffs itself. Congress can conceivably use Fast Track for any bill, but here we’re concerned with Fast Track as it applies to trade agreements, and specifically the Trade Promotion Authority contained in the Bipartisan Congressional Trade Priorities Act of 2015.
The “Fast Track” system was specifically formulated (by none other than Supreme Court Justice Stephen Breyer—See “THE THOMAS F. RYAN LECTURE: The Legislative Veto After Chadha”, 72 Geo. L.J. 785) as a constitutional workaround to the “legislative veto,” which, as Grayson and Fein point out, was ruled unconstitutional by the Supreme Court in INS v. Chadha, 462 U.S. 919 (1983). The legislative veto worked like this: Congress passed a law essentially allowing the President to make a law. Under this delegation of Congressional authority, the President would then create a law. The President-made law would only take effect, however, if Congress failed to pass a resolution nullifying the President-made law within a specified period of time.
The legislative veto failed in Chadha because the Supreme Court found that it failed to satisfy the explicit Constitutional requirements of bicameral action—not satisfied because the president made law became effective through inaction of Congress—and the Presentment Clause, which was unsatisfied under the legislative veto because the Constitution requires legislation to be presented to the president for his signature or veto after such bicameral action. Grayson and Fein invoke “separation of powers” as the overriding problem with Fast Track and other delegations of Congressional legislative power, but it’s important to note that the Supreme Court in Chadha did not invalidate the legislative veto on separation of power concerns.
Examples brought up by Grayson and Fein illustrate the critical differences between unconstitutional procedures and Fast Track. For example, the Line Item Veto failed the explicit Constitutional requirements of bicameral action and presentment—the president, by lining out items, made a new and different law than the one Congress presented to him; the new law was never subjected to bicameral action and presented back to the president. Fast Track satisfies both the bicameral action and presentment provisions, through the up or down votes of Congress after the President formulates the trade agreement, and presentment of the bill to the President after that bicameral action.
Grayson and Fein imply that the fast track process violates Article I, Section 5, Clause 2 of the Constitution, which provides that “Each House may determine the Rules of its Proceedings.” They claim that this clause means that “[n]either the Senate nor the President shall have any say in House Rules; and, neither the House nor the President shall have any say in Senate Rules.” They are plainly wrong. The clause says nothing about how each house of Congress must determine its rules. If a house of Congress wants to make a rule that is contingent on the act of a President, nothing in the plain language of this clause of the Constitution prohibits this. Notably, Congress routinely imposes such statutory rules on itself, and in no instance has such a rule been found to be unconstitutional by the Supreme Court.
Grayson and Fein toss around the phrase “separation of powers”, but don’t really say why TPA presents any particular separation of powers concern. The primary separation of powers concern occurs when one center of power usurps or encroaches upon the power of another, not when a branch of government delegates its power to another. It’s not that a delegation of power can or should never be controversial, but rather that a claim that a delegation of power is troubling because of separation of powers seems to require at least some basis, because most delegations of power are innocuous from a separation of powers perspective.
For example, the power of Congress to delegate its legislative power to the states, in laws such as McCarran-Ferguson, which delegates Congressional authority to regulate the business of insurance to the states, is well-settled and virtually unquestioned in terms of separation of powers. And the right of delegation of rule-making power by Congress to the executive branch through enabling acts giving executive branch agencies considerable legislative authority is also well-settled. And, as mentioned above, when delegations of power do fail constitutional muster, such as the line item veto, it is because they fail some explicit constitutional provision, not because they fail to adequately keep separate the powers of the branches of government in a general sense.
So, where exactly is the separation of powers problem? Here, it is not inherently troubling that the executive branch is wielding legislative power, because 1.) Congress gave the executive branch its power in the first place, and 2.) Congress can take back the power at any time by repealing the TPA. The Fast Track power thus still ultimately resides in Congress. Grayson and Fein articulate no particular concern. (I'd note that Congress is not known for being particularly immune from corporate influence, which seems to be at the heart of most citizen concerns about the trade agreement process.)
Finally, Grayson and Fein give short shrift to the well-settled principle that foreign relations generally, and trade agreements specifically, are the domain of the President in a way that domestic legislation is not. They do not mention that in the Supreme Court case striking down the line-item veto, the Court distinguished cases involving trade agreements from the line item veto on precisely this ground. The court recognized that “in the foreign affairs arena, the President has a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries." Clinton v. City of New York, 524 U.S. 417, 445 (1998). So even if Fast Track were (wrongly) found unconstitutional because of a general separation of powers issue, it might still be okay for trade agreements specifically, due to the president’s enhanced discretion in foreign affairs.
In short, there is no reasonable basis for a vote against TPA on constitutional grounds. This does not mean, of course, that trade agreements should be fast-tracked. There is plenty of room for an argument that the trade agreement process is unwise, and this is where critics of the trade agreement process should concentrate their efforts.