TPP: A Threat to the Rule of Law

mark w. hendricksonMARK W. HENDRICKSON

The Wall Street Journal editorial page seems to reserve an especially snide sarcasm for Republicans who wander off the path of economic growth. The latest recipient of this acidulous derision was Senator Jeff Sessions (R-AL). On Monday, an obviously miffed WSJ editorialist lambasted Sessions for a “critical alert” the senator released in which he cited five reservations about granting the president fast-track authority for the Trans-Pacific Partnership (TPP).

I get the feeling that there is some history to the friction between the Journal and Sen. Sessions, but rather than speculate on possible subtexts, let me just say that if the senator is concocting far-fetched pretexts to help sabotage a trade agreement, then I stand with the WSJ, but if the senator is right about one particular point, then I think the Journal deserves rebuke for being so gung-ho for trade that it blinds them to a threat to our system of government.

So what is this alleged sticking point? (I say “alleged” because I haven’t read the text of any of the proposed trade-related legislation, so if it turns out that Sen. Sessions has misrepresented the content of TPP, then I would no longer take his side.) As reported by Rick Manning on the Investors Business Daily editorial page, the “Key Features” summary of TPP he obtained from the U.S. Trade Representative specifies that TPP would be a “living document.” This means that additional nations could be added to TPP without congressional approval and that the president would be authorized to implement modifications to TPP “as appropriate.”

Los Angeles community members take to the streets of Beverly Hills to demand that Hillary Rodham Clinton oppose the Trans-Pacific Partnership (TPP) and Trade Promotion Authority (TPA) known as “The Fast Track,” in Beverly Hills, Calif., Thursday, May 7, 2015. Clinton is spending Thursday at three private fundraisers around LA, with tickets costing $2,700 per person. The front-runner for the Democratic nomination is on a three-day swing through California.

There are two huge reasons why such a provision in TPP would be unacceptable:

First, the Constitution explicitly states (Art. 1, Sect. 8, para. 3) that Congress shall “regulate Commerce with foreign Nations.” There is no constitutional authority for surrendering or transferring this congressional responsibility to the executive branch. Economists Larry Kudlow, Arthur Laffer, and Stephen Moore, who rightly favor more trade, recently tried to allay this concern by correctly pointing out that TPP requires congressional approval to take effect. The problem is that an explicitly specified “living document” interpretation of TPP would subvert the constitutional stipulation. Like the sham democracies where there has been “one man, one vote, one time,” once Congress would sign off on a “living document,” it would forfeit control over trade policy.

Second, if TPP were an open-ended document, the rule of law and republican government itself would be lost. The president, acting in concert with foreign leaders, could usurp Congress’ legislative prerogative thereby depriving the people of proper representation. TPP essentially would give “carte blanche” powers to the president, a type of power appropriate to the age of absolute monarchs and is intolerable for a free, self-governing people. No president should have such immense discretionary power, particularly this one. I have wondered what Team Obama has meant by repeatedly declaring that TPP would be “the most progressive” trade deal in history. Perhaps the progressive agenda to which he alludes is the one in which U.S. sovereignty is diminished for the sake of a new international order. To President Obama, TPP may be more about global governance than about simply increasing global trade.

Unless TPP is structured in a way that preserves congressional control over the laws by which we live, it should be scuttled. That would be an economic tragedy, for we need more trade. If, in fact, TPP fails, Republican leaders in Congress should immediately promote legislation offering to conclude a trading agreement with any nation that will agree to a few simple terms: 1) that it uphold and protect American property rights and contractual agreements; 2) that any product exported to the United States comply with our consumer protection laws; 3) that whatever it sells here receives no government subsidies.

Sadly, we seem to have passed the time when laws can be succinct, uncomplicated, and unencumbered by political payoffs, special-interest privileges, etc. Maybe TPP is the best we who favor trade can hope for now, and we’ll just have to hold our nose at some of the more obnoxious provisions that are attached. We should draw the line, though, at making TPP a “living document.” Trade is valuable, but not more valuable than the rule of law and constitutional government.

Get your copy of Mark Hendrickson’s excellent: Problems with Piketty: The Flaws and Fallacies in Capital in the Twenty-First Century

The Moral Liberal Contributing Editor, Mark Hendrickson, is Adjunct Professor of Economics at Grove City College, where he has taught since 2004. He is also a Fellow for Economic and Social Policy with The Center for Vision & Values, for which he writes regular commentaries. He is a contributing editor of The St. Croix Review, sits on the Council of Scholars of the Commonwealth Foundation, and writes the “No Panaceas” column in the Op/Ed section of

Mark’s published books include: America’s March Toward Communism (1987); The Morality of Capitalism (editor, 1992); Famous But Nameless: Inspiration and Lessons from the Bible’s Anonymous Characters (2011); and God and Man on Wall Street: The Conscience of Capitalism (with Craig Columbus, 2012).

Mark Hendrickson’s Archives at The Moral Liberal.