01.27.2017 2

The president alone can conclude treaties and trade agreements, there is no role for Congress

By Robert Romano

Sen. Mike Lee (R-Utah) has proposed new legislation, S. 177, that would require a vote of Congress before the imposition or increase of any tariffs and other duties by President Donald Trump. Decades ago, Congress delegated much of its Article I authority to enact tariffs to the President, primarily to enforce trade agreements and to strengthen negotiating power.

The Lee bill seeks to rein that back in. It requires Congressional authorization for tariff impositions and increases. Tariff reductions on the other hand can already occur when trade promotion authority is in effect — it was last enacted in 2015 — where Congress grants trade authority and then the president negotiates with other countries on trade, modifies the tariffs, and then is subjected to Congressional authorization on an expedited basis. Additionally, existing trade agreements allow for tariff reductions by an administration in accordance with the terms of those agreements.

Generally speaking, Americans for Limited Government supports efforts by Congress to rein in abdications of its own Article I authorities, for example reining in the regulatory process which has taken on the character of lawmaking with faceless bureaucrats issuing rules from on high without any Congressional approvals or by reasserting its role in monetary policy. And if that was all the Lee bill did, it would be worth considering.

However, the bill goes much further than that. It would require a vote of Congress to withdraw from any trade agreement negotiated under trade promotion authority with a foreign nation, locking in every already-negotiated trade deal with foreign countries enacted since the Trade Act of 1974, requiring votes of Congress to exit and effectively modifying the terms of those agreements that the presidents at the time agreed to.

There’s only one big problem.

The Constitution vests all the executive power to the president, and that includes complete power over the conduct of foreign relations including the power to make or to leave treaties and other foreign agreements as necessary when they no longer serve the national interest. It’s not even a justiciable question; it’s a political one with which the president has discretion. You couldn’t even take a president to court over it.

Although the Senate has a limited power to approve treaties, the president alone can conclude them under his own broad Article II executive authority and in accordance with the provisions of the treaty — such as Jimmy Carter did when he terminated the Taiwan defense treaty in 1979 and George W. Bush did when he ended the Anti-Ballistic Missile Treaty in 2002, because no other provision in the Constitution states otherwise. The Senate’s role is explicitly limited under Article II to ratifying a treaty. Making the treaty itself — or suspending or terminating it — is primarily a part of the executive power.

Congress cannot constitutionally claim that power for itself, or require explicit preauthorization to conclude these agreements, including trade deals, yet that is precisely what the Lee bill seeks to do. Just as Americans for Limited Government opposes granting the president Article I powers, it opposes Congress granting itself Article II powers over foreign relations. And that’s what this is, an attempt at a power grab, to make Congress the arbiter of when the U.S. leaves an agreement with a foreign country.

It cannot do that constitutionally any more so than it could claim the power, for example, requiring explicit authorization for the president to engage or to disengage in official diplomatic relations. The president does not need an act of Congress to talk to other countries or to stop talking to them. He can do so at his discretion.

When North American Free Trade Agreement and the World Trade Organization were enacted, it was under the understanding that the U.S. could leave if the arrangements proved to be detrimental, via Article 2205 of NAFTA and Article XV of the WTO. The president need only to provide notice to the institutions in advance of leaving. For other institutions, like the UN, although there is no explicit escape clause, there also is not any language in the charter that binds countries to remain in the institution. Trump could leave that institution, too, if he determines they do not serve U.S. interests. That is the broad power given to the president in foreign affairs.

It is an essential check on the powers of the other branches, and gives the American people recourse — as they did in 2016 — to elect a president to get the nation out from under these foreign entanglements, something Trump explicitly campaigned on. The people could have elected another globalist like Hillary Clinton or Jeb Bush, but they elected Trump.

Elections have consequences.

If the president’s power to terminate treaties seems overly broad, then the quibble is not with the president who wields that constitutional power, but with the Constitution itself. It is the president who has the power to negotiate treaties and if deemed necessary, to terminate them. In 1793, Alexander Hamilton wrote in Pacificus I, “though treaties can only be made by the President and Senate, their activity may be continued or suspended by the President alone.” Then, Washington suspended then U.S. treaty with France when it went to war with Great Britain, issuing the Proclamation of Neutrality.

Yes, treaties are the supreme law of the land, but so are laws properly enacted by Congress and provisions of the Constitution itself, and those can be changed or repealed. The Constitution sets forth the limited processes for changing or amending those, but no explicit process for terminating treaties, therefore, it can only fall under the purview of an implicit Article II executive power in the conduct of foreign affairs. It’s been this way since the Washington administration.

Now, one of the reasons Congress has delegated tariff authority in the modern era to the president was to strengthen his hand in the context of reciprocal tariff reductions in the 1930s. This indeed was a straight-up abdication of Article I powers. Congress preauthorized the president to reduce tariffs on a reciprocal basis with no need for further action by Congress. It was a patently unconstitutional transfer of Article I authority. Congress could have just lowered the tariffs from the Smoot-Hawley Act on its own authority subject to presidential approval or otherwise the president could have entered into treaty negotiations with trade partners, subject to Senate approval. Instead, it punted the issue, creating some new progressive process that bore no resemblance to the constitutional process.

Other delegations came later in the context of fast track trade authority and the trade agreements that were negotiated under it. Trade promotion authority, originating in the Trade Act of 1974 itself was another mutant attempt to usurp authority where none existed, in this case to include the House of Representatives in the treaty-approval process. Under that law, Congress grants trade authority to the president, who negotiates the trade deals lowering tariffs, and then they are approved or disapproved by both chambers of Congress on an expedited basis.

But originally, under the Constitution, commercial treaties were not subject to the House at all.

In 1794, Supreme Court Chief Justice John Jay negotiated a commercial treaty with Great Britain, “The Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America.”

It was put to the Senate for ratification by a two-thirds vote, which eventually came on June 24, 1795. But not before the House of Representatives raised several objections, namely, that the treaty could not be binding if the House did not approve, too, since it regulated commerce with foreign nations, a power the Constitution vested in all of Congress.

Prior to that, the congressional foreign commerce power had simply been thought to include tariffs and sanctions and the like. But not treaties negotiated with foreign powers, which was the sole province of the president and then subject to Senate ratification. This was a new argument and was led, oddly enough, by James Madison, the so-called Father of the Constitution and leader of the then-Republican Party in the House.

Oddly, because throughout the entire ratification process for the Constitution, nobody had considered the House would have any role in approving treaties, let alone commercial treaties. In fact, countered the Federalist Party, if the Virginia ratifying convention, led by Madison, had thought that commercial treaties required additional House approval to be binding, then why had it proposed an amendment that would have required commercial treaties to only be ratified by two-thirds of all sitting senators, rather than those present.

This clearly indicated the ratifying conventions believed the treaty power enumerated under Article II also included trade agreements with foreign nations.

The matter was such a controversy that, even after the treaty’s ratification, then-President George Washington had to send a letter to the House dated March 30, 1796 to address it.

Treaties, including commercial treaties, were only to be put to the Senate for ratification, per Washington, as a matter of federalism and states’ rights. Because, he wrote, “the smaller states were admitted to an equal representation in the Senate with the larger states, and that this branch of government was invested with great powers, for on the equal representation of those powers the sovereignty and political safety of the smaller states were deemed essentially to depend.”

That is to say, the smaller states would not — and did not — agree to a Constitution where the proportionally-represented House of Representatives would have final say on treaties. Including commercial treaties.

In fact, according to Washington, at the convention a motion was made “that no treaty should be binding on the United States which was not ratified by law,” and, wrote Washington, “the proposition was explicitly rejected.”

So, everyone at the convention had agreed that commercial treaties had to be put to the Senate for ratification. The state ratifying conventions, even ones that raised objections to the provision asking for a higher threshold for commercial treaties, agreed that these agreements had to be put to the Senate for ratification. The constitutional convention, which Washington chaired, even considered the question of including the House in the treaty process, and explicitly rejected it.

Thus, Washington said, “The assent of the House of Representatives is not necessary to the validity of a treaty.”

That more or less settled the matter such that when it came time for President James Madison to submit his own commercial treaty with Great Britain, the United Kingdom Commerce and Navigation Treaty of 1815, which was a free trade agreement, it too required a two-thirds Senate majority to ratify. By that time, Madison had ceded the argument.

Now, more than 200 years later, however, the two-thirds vote in the Senate constitutional requirement for commercial treaties is nowhere to be found.

Instead, we have this bastardized process, where the House thinks it has a role in approving treaties, the president has a role in levying tariffs, and if Sen. Lee’s bill is enacted, Congress will have a role in terminating agreements with foreign powers. It’s a mess. None of this is what the framers intended.

That is why in 2015, Americans for Limited Government adamantly opposed granting trade promotion authority — on constitutional grounds. Americans for Limited Government President Rick Manning at the time stated, “Trade promotion authority via an executive-legislative branch agreement is an unconstitutional fabrication of the modern administrative state.” Sen. Lee, although he was not in town at the time to vote, was a supporter of fast track.

So how to navigate through this? The simplest method would be to repeal the Trade Act of 1974, eliminate any trade agreements that were enacted under trade promotion authority including NAFTA and the WTO and to return tariff levying powers to Congress. Then, the president could negotiate commercial treaties via the Article II treaty clause, subject to Senate ratification. And Congress could consider a regime of tariffs or no tariffs at its Article I discretion, subject to the presidential approval or veto.

But that is not what is under consideration. Right now, in negotiating trade agreements under trade authority, the president possesses the ability to dangle tariff reductions or increases to get parties to come to the table. Since the advent of WTO, this becomes even more so important, since imposing penalties when there is dumping is something that routinely comes up at the WTO. The president’s ability to impose additional penalties strengthens the U.S. hand at the WTO in those cases.

By not addressing the WTO, what Lee proposes may sound a lot like Article I but it ignores the fact that the U.S. has already ceded much of its Article I trade authority to the WTO, which has and will retain the power to impose its own penalties. In other words, if Congress has delegated its Article I trade authority to the president, it has also certainly delegated similar authorities to the WTO, which the U.S. is obliged to follow. But that is not addressed by the Lee bill. It locks the U.S. into the WTO, in fact.

What Lee proposes is to hamper anything President Trump might do on in the modern trade system to get a better deal via existing institutions by subjecting decision on trade to House and Senate authorization, and seeks to unconstitutionally usurp Article II powers the president has to conclude foreign agreements.

U.S. exporters would presumably be left to fend for themselves at the WTO without an effective representative, because the president would lack the currently delegated tariff power to negotiate there via the U.S. Trade Representative or to enforce existing agreements or even his constitutionally granted leverage to leave those agreements if necessary.

In fact, if Congress were to pursue Lee’s bill too aggressively, it might provoke the very outcome it seeks to avoid, which is President Trump perceiving a narrowing window and simply issuing notice under the existing trade agreements to end them. There are ways to restore constitutional powers, but Congress attempting to seize Article II powers over foreign relations and concluding agreements with foreign countries is not one of them.

Robert Romano is the senior editor of Americans for Limited Government.

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