Am I Missing Something or Does the New Trade Promotion Authority Bill Violate the U.S. Constitution?

by Julian Ku

I am slammed with a couple of projects right now, but I can’t help throwing this question out to the legal blogosphere.  Does the new “Bipartisan Trade Priorities and Accountability Act” recently introduced by leading U.S. Senators violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

The BTPAA seems crucial as the U.S. enters the final stages of its negotiations over the “Trans Pacific Partnership” (TPP) with Asia and the Transatlantic Trade and Investment Partnership (TTIP) with Europe because it allows the President to submit his negotiated trade agreements for a “fast-track” up and down vote that Congress cannot amend.

Because of congressional opposition, the new trade promotion bill has a provision that looks a lot like a “legislative veto” that allows a resolution passed by a majority vote by one House of Congress to withdraw the “fast-track” authority.   Here seems to be the key language.

(A) IN GENERAL.—The trade authorities procedures shall not apply to any implementing bill submitted with respect to a trade agreement or trade agreements entered into under section 3(b) if during the 60-day period beginning on the date that one House of Congress agrees to a procedural disapproval resolution for lack of notice or consultations with respect to such trade agreement or agreements, the other House separately agrees to a procedural disapproval resolution with respect to such trade agreement or agreements.

(B) PROCEDURAL DISAPPROVAL RESOLUTION.—(i) For purposes of this paragraph, the term ‘‘procedural disapproval resolution’’ means a resolution of either House of Congress, the sole matter after the resolving clause of which is as follows: ‘‘That the President has failed or refused to notify or consult in accordance with the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 on negotiations with respect to ____ and, therefore, the trade authorities procedures under that Act shall not apply to any implementing bill submitted with respect to such trade agreement or agreements.’’, with the blank space being filled with a description of the trade agreement or agreements with respect to which the President is considered to have failed or refused to notify or consult.

Am I missing something? Even if (as the provision seems to say), a resolution of both houses is needed to withdraw fast track authority, the joint resolution doesn’t satisfy the presentment (to the President) requirement in the Constitution that the Supreme Court has repeatedly upheld in cases like INS v. Chadha and Clinton v. City of New York.  Unless the President has an opportunity to veto the “procedural disapproval resolution,” I doubt this law is constitutional.  I think the only saving grace is that the resolutions  withdrawing fast track can only be invoked if the President fails to notify or consult rather than on the merits.  But I am still very doubtful this difference matters. I haven’t carefully examined all of the legislation’s provisions, but this does strike me as an issue worth discussing.  Comments welcome!

http://opiniojuris.org/2015/04/17/am-i-missing-something-or-does-the-new-trade-promotion-authority-bill-violate-the-u-s-constitution/

3 Responses

  1. Do you think it’s severable? Is the whole bill unconstitutional if this provision is?

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