Trans-Pacific Partnership

Dear Friends,

As you know, the negotiators have reached agreement on the terms of the Trans Pacific Partnership.  Congress granted fast track authority, with the provision that the President must give 90 days notice of his intent to sign the agreement and release the agreement to the public within 30 days thereafter.  Since he obviously intends to sign this agreement, why hasn't he given the notice and started the clock running?  Right now the President can say whatever he wants to about the TPP without fear of being contradicted because so few people have access to the entire agreement.  Once TPP is made public, a real debate can be had.  I suspect the President would like to have the 60 days of public scrutiny during a time when he thinks that the public will be distracted by other things.  We will see what he does.

Bernie Sanders along with Elizabeth Warren are leading the fight to defeat TPP for all the reasons I have written about here, here, here, here, here and here.  Hillary Clinton, while no longer saying that she is in favor of TPP, has not said what her position on TPP is.  She has also distanced herself from any part of the negotiations even though the State Department has been involved including while she was Secretary of State.  I certainly hope that she will break with the Obama Administration on TPP as she has on Shell drilling in the Arctic and the Keystone XL Pipeline.  It would be great if she would do so now.  This issue is not new; we are entitled to know where she stands on it. Maybe we will find out at the debate on October 13th.

In doing some reading today, I came across an article in The Atlantic (here) by Alan Morrison entitled "Is the Trans-Pacific Partnership Unconstitutional?", originally published in June of this year.  While I was aware of provisions that would force international arbitration that would have no judicial review that could overturn individual government laws, this article was an eye opener as to how the provision would work.

The article starts with a hypothetical of the city of San Francisco passing a $16 per hour minimum wage requirement which a Vietnamese company that owns several San Fransisco restaurants challenges because it violates the investor protection provision of TPP.  The action is brought by the Vietnamese company against the United States for damages caused by the San Francisco minimum wage law.  San Francisco can only participate with the consent of the United States.  The case is heard by three independent international arbitrators who decide the case without any judicial review.  If damages are awarded, they are paid by the United States, undoubtedly prompting Congress to overrule the San Francisco minimum wage act to prevent further damages from being awarded.  The article does not contend that the Vietnamese company would be successful but points out how the TPP arbitrators, unaccountable to anybody, could effect a change in United States law.

Since there are other treaties with similar provisions in them, the world has some experience to look at.  The article states

Indeed, in a similar situation Canada reversed a toxics ban and published a worldwide advertisement that the chemical was safe in order to avoid the possibility of having to pay substantial damages.

The article goes on to explain that the Constitutionality of such a provision has not been addressed by the Supreme Court but argues that prior rulings on other cases could lead to a finding of TPP being unconstitutional.

It is worth reading the whole article.  President Obama, his Republican allies and big business will want you to just listen to the sound bites and assurances.  This issue is to important not to force a real debate with access to the facts.

Thanks for reading and please comment,
The Unabashed Liberal