Is It All Over But the Denying?

By occupostal for Occupy World Writes

Under fast track, 'fast' is little more than a euphemism for 'avoid the public, and benefit the fortunate few,' warns Ohio State law professor Margot Kaminski. (Photo: Backbone Campaign/cc/flickr)

Under fast track, ‘fast’ is little more than a euphemism for ‘avoid the public, and benefit the fortunate few,’ warns Ohio State law professor Margot Kaminski. (Photo: Backbone Campaign/cc/flickr)

When you know how the outcome is going to play out—and not well—the old expression goes “It’s all over but the crying.” We may very well be in that spot with passage of the Trade Promotion Authority(TPA)—which has already passed in the U.S. Senate and is due for a vote in the House of Representatives today. Like the followup trade agreements that TPA is meant to grease the skids for—the TPP (Trans-Pacific Partnership), TTIP (Transatlantic Trade and Investment Partnership), and now TiSA (Trade in Services Agreement)—it may get as many repeat votes as needed to force it through to a foregone conclusion.

So at this moment, it makes sense to look at a few specific issues: TPA or “fast track” itself, the constitutionality of the whole alphabet soup, and the naked power relationship between government and the forces of capitalism. Both crying and denying are part of the view here.

We’ve previously argued that TPA isn’t, or shouldn’t be, constitutional in and of itself. That’s based on the position that TPA makes a mockery of the Congress’ constitutional authority to “advise and consent” on treaties and—since it turns out that these trade agreements are not being pitched as “treaties” per se—also to regulate foreign commerce itself. In the practice of politics rather than the paper promises of TPA or said authority granted under the Constitution, advise, consent and regulation shrink to the pro forma… so that the net effect is rather like a job position whose performance plan for functional duties and criteria to measure performance, includes the prerogative to modify the criteria themselves, without any supervisory input. Nice job if you can get it. Make it up as you go along, and always, always be doing it well.

Start with the function of the Trade Promotion Authority itself. From the Congressional Research Service horse’s mouth :

Through TPA/fast track, in its various iterations, Congress has sought to achieve four major goals in the context of supporting trade negotiations: (1) to define trade policy priorities and to have those priorities reflected in trade agreement negotiating objectives; (2) to ensure that the executive branch adheres to these objectives by requiring periodic notification and consultation with Congress; (3) to define the terms, conditions, and procedures under which the President may enter into trade agreements and under which the respective implementing bills may be approved; and (4) to reaffirm Congress’s overall constitutional authority over trade by placing limitations on the trade agreements authority.

Yet the same report undermines the sensible details here that would seem to paint Congress as still doing its job under TPA:

As noted by two long-time observers of the congressional trade policy process, “The real power of fast track (TPA) is the underlying political compact between Congress and the President rather than its statutory guarantees, which are technically quite fragile.” There is an implied extension of “political compact” to relationships within Congress as well. Congress repeatedly seeks to develop the needed consensus on trade policy, with varying degrees of success, but generally with an understanding that a minimal degree of bipartisan understanding is needed to pass trade legislation. TPA has been a key element of this process.

How the so-called bi-partisan understanding and political compact are reached is the true sausage making that ignores the recipe of lofty purpose. We’ve already seen it’s the players—in the executive branch, and the corporate stakeholders shaping trade agreements—that tell Congress the trade policy priorities, the terms and conditions under which the President conducts negotiations, not the other way around. Thus concerned Congressional noises from some quarters, that TTP should deal with currency manipulation among nations, are discounted as an element of the TPA directives. The executive branch has told us so. Dropping such “nuisance” issues into separate legislation to be voted on, and voted down, is how TPA finally passed the Senate.

Getting deeper into practical political reality, it’s not just that Congress doesn’t really shape Trade Promotion Authority legislation itself. It’s that members of Congress pretend that it’s meaningful, and that they’re thoughtfully moving along the process of forming trade agreements to the point where they can deliberate on whether a specific agreement like TPA will be worthy of approval or not. Here lies another level of charade. They and we already know that the first agreement out of the gate after passage of the TPA—the TPP—already has enough automatic votes to pass it under the lower bar of a 51 vote majority. The disingenuous rep who wants to appear to disapprove of the TTP or other trade agreement, can safely vote no on it, having voted yes on the TPA and ensuring its passage despite his or her vote. “Well I tried” is what the constituents will hear. “I had principles…” Problem is, any such principles were selectively applied to serve the rep’s purposes, not their public’s. And thus in effect, were unprincipled principles after all.

But looking down the road, and assuming the worst—that the first of these troubling trade agreements, the TPP, passes into reality—we still have an even larger constitutional issue. If the content of the agreement is what Wikileaks documents are describing, then it will sooner or later impact state and munipality legislation, not just federal. Congress would be required to pass implementing legislation if it approves TPP—but that cannot address every impact that the TPP will have in every region where economics and governing laws clash. The latter—the law and policy we fashion to conduct our lives—is the subject of our Constitution. The economic system we support our lives with is not.

If the two clash, we have a dilemma. Can economic interests and the agreements which our nation makes to further them, override our own governing laws for how we live? The answer would seem to be clearly “no” – IF one applies truly prinicpled logic. Think of it this way:

  1. The U.S. Constitution establishes that: “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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [U.S. Constitution, Article VI]
  2. Since the Constitution itself sanctions U.S. laws and treaties as supreme, it must therefore be a first among equals—the head supreme law, as it were. Either of the others can be in conflict with it, and on that occasion should be subject to constitutional review.
  3. However, in order to facilitate trade agreements (and exempt them from the rigors of treaty-making), they’ve been designated as a separate category of executive-legislative agreement.
  4. Since this is the case, such agreements don’t even rise to the level of being supreme law of the land, and should surely be reviewable for their constitutionality.

So  might go a principled and rational argument to constrain the ill effects of a trade agreement on our country’s “general welfare.” Wiggle room will be (and has been) claimed: Trade agreements provide for monetary fines if a country’s laws are found to thwart its trade provisions—the culpable country can just pay fines or change its laws; your choice. This is of course triumphing on a technicality. And it begs the question: Why would your representatives fashion such a technicality that compromises a country’s own self-governance in the first place?

That’s where the hard, bitter reality comes in. The “laws” of economics—embodied in capitalism—don’t have to fit into the constitutional hierarchy of what’s supreme. As we’ve fashioned our collective life, or allowed it to be fashioned for us, these “laws” are separate and superior. Only our government, formed and sanctioned by our Constitution, can decide to alter that judgement and bring such economic “law” to heel. By either ensuring that trade agreements are formed more accountable, or by challenging  their status after the fact.

Frederick Douglass said: “Power concedes nothing without a demand. It never did and it never will.”

The optimist (not  the more knowing opportunist), may respond: “This isn’t as bad as it looks. The power of our government must be ensuring that benefit is coming out of this trade dealing. We’re just looking at it the wrong way and can’t see it yet. We live too much in fear for our livelihoods, among the trees rather than the forest.”

The pessimist may retort: “Nope, we can see what’s coming. Nothing good. The power of government has been misled by the economic interests it trusts, even when you discount bureaucratic functionaries who had something selfish to gain. It’s a royal hoodwinking, and Douglass’ wisdom has met its match–the exception to its rule.”

But the realist looks at the premises and results with a different eye. “You both misread the situation. Douglass’ wisdom remains in force; it’s the basic assumption that’s wrong. The government is not a power, no longer. It’s just a jumped-up midwife, as it were.”

Well, still and all a  necessary midwife as it were. It serves a purpose, though no longer an alpha one.

In 1985, Robert L. Heilbroner wrote a magisterial anatomy of the functioning of our modern civilization in The Nature and Logic of Capitalism. In it he strikingly observed:

“Remove the regime of capital and the state would remain, although it might change dramatically; remove the state and the regime of capital would not last a day. In this sense politics is prior  to economics in that domination must precede exploitation. Thus once again we encounter the tense relation of realms characteristic of the social formation in which capital calls the tune by which the state normally dances but takes for granted that the state will provide the theater within which the performance takes place.”(p.105)

So enjoy the theater of this pivotal political moment, if you’re paying attention and are so inclined. As we await the TPA vote, I do not. Nor will I enjoy the encore of denials that what’s happened has happened.

After it’s over—whenever the vote occurs and however many times in order to conclude the economic dance—I’ll deal with the representatives who misrepresent our lives.

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