trade policy leaks

[ApatheticNoMore]

How about those leaks we've gotten recently on the Trans Pacific Partnership? It seems this law is a very direct attack on the whole idea of democracy and the ability to collectively make laws to address community problems etc..

It will:
- Limit how U.S. federal and state officials could regulate foreign firms operating within U.S. boundaries, with requirements to provide them greater rights than domestic firms
- Allow foreign firms to demand compensation for the costs of complying with U.S. financial or environmental regulations that apply equally to domestic and foreign firms.
- Establish a two-track legal system that gives foreign firms new rights to skirt U.S. courts and laws, directly sue the U.S. government before foreign tribunals and demand compensation for financial, health, environmental, land use and other laws they claim undermine their TPP privileges
http://obrag.org/?p=62251

Big picture: national and state and local environmental laws are going to start falling afoul of this trade agreement (as will perhaps other laws like worker protections). The ability of a nation or state or locality to even control someting really basic like pollution even by strong majority consensus is going to start falling afoul of this trade agreement. This is the worldwide destruction of being able to control anything democratically, that IS the BIG BIG PICTURE. The average person will be left with no voice to even stop their local communities from having their environments destroyed. Instead of companies paying the price of their pollution (externalities) the taxpayer will have to pay the price of the corporations complying with environmental regulations!! Their right to pollute is taken as the default and their victims right to not be poisoned by pollution non-existent. That's completely backward! The big picture is again the death of being able to control almost anything democractically even on a small scale (your local community - regulating pollution say) because trans-national laws (this trade agreement) upsurp that ability. Financial regulation is going to fall afoul of this trade agreement, but some regulation is little more than taxpayer protection since we have seen the extent of which we have to bail out their errors. The favoritism of foreign firms (the foreign firms won't have to comply with the U.S. laws the U.S. firms will) will lead to the increasing dependence on foreign firms over local. You can not write that kind of naked FAVORITSM into a law without expecting the favored party to benefit over the unfavored one. And the unfavored ones are U.S. businesses in the U.S.. When the ultimate result of this appears is it going to be dismissed as just the result of the "free market", when it was basically written into law?

This is in some ways a coup. It is writing laws at a level far above national laws (by people we never voted for - noone voted for the people sitting on the trade talks) that will invalidate the laws we do have because every single one of our laws at any level of government can be "appealed" to the international trade body whose ultimate law seems to be "anything corporations want". The leak reveals that the congressperson in charge of the committee for these kind of trade agreements DID NOT KNOW THE DETAILS of the trade agreement because it was hidden. Congress as useless as they are in the best of times, has been kept entirely in the dark! And congress is one of the few branches of government by which the people might have had a say. We don't have 3 branches of government here. Congress in the dark, the judicial powerless anyway (since none of this stuff will be run through our judiciary, it is all appealed to a trade body). Does anyone looking at the big picture (this, the presidents killings wiht no congressional oversite, the non-declared wars etc. etc.) believe we actually live in the government at all detailed in I don't know .. the Consitution ... or frankly in a representative government at all?

And this is all entirely independent of what you think of trade. Trade IMO has plusses and minuses but what this trade agreement is dealing with is NOT the stuff of trade (which is mostly discussions of eliminating tarriffs and quotas and so on - in my mind and I think in most people's minds). This is a coup disguised as a trade agreement that eliminates democratic lawmaking. I can't do this justice, you need to do the research on this.

[bae]

It is unclear to me how an international treaty could trump state law on things that the Federal government doesn't have exclusive jurisdiction over.

Then again, nobody reads the 10th Amendment anymore, and everyone thinks the Federal government is their mom, so perhaps people will simply get the rulership they deserve.

[Lainey]

Isn't this what the Battle in Seattle was about? http://www.guardian.co.uk/world/1999/dec/05/wto.globalisation
Disregarding local laws under the excuse of - yet again - greasing the wheels for ever-more profits?

[ApatheticNoMore]

Kind of. It's like asking isn't the NDAA just the Patriot Act and the AUMF? Well ... yes and no ... It is getting much more blatent and direct.

It is my understanding NAFTA and GATT and so on actually released their trade agreements (the legal text) to the public. This trade agreement will not be released to the public until many years after it is signed (that is a legal condition of it!). It has been negotiated for 3 years in secret. Congress has been deliberately kept in the dark, even the congressperson who is on the committee that is supposed to oversee these types of things. Some issues prominent in the WTO I believe were things like IP law and the effects on the 3rd world etc.. This trade agreement also strengthens IP even more (on medicines too, you sure Obama really wants affordable healthcare?). But it also seems a much more direct threat to U.S. sovereignty. I'm not saying the U.S. is more important, really no, not in the grand scheme of things, conditions in the 3rd world are much worse. But this seems a much more direct threat to overturn U.S. national, state, and local laws. It really does seem to be placing a global corporate governing body above all U.S. laws on any level.

[Gregg]

If this agreement actually does attempt to overrule laws that are on the books in the US, how would a precedent be established? What court would hear the arguments and what authority would it have regarding enforcement? If the US at the Federal level, or maybe more importantly individual States, simply refused to acknowledge the authority of that court or the validity of the agreement wouldn't that make the whole point moot?

IMO the whole thing is ridiculous. Vietnam and Brunei are in. Japan and Canada are out. Mexico can't even contain the corruption and violence in their own country, but now they're in. Who decides these things (as if we can't guess)?

I'm not really an isolationist, but I'm also not sure linking our economy to everyone in Asia makes a lot of sense. At times I do wish we would have developed a coherent energy policy 20 years ago so that we would at least have a credible option to turn inward if the situation demanded. Any threat of closing the doors now would obviously not hold water so, once again, we negotiate from a position of weakness on the international stage. We are nothing if not a myopic people.

[creaker]

If this agreement actually does attempt to overrule laws that are on the books in the US, how would a precedent be established? What court would hear the arguments and what authority would it have regarding enforcement? If the US at the Federal level, or maybe more importantly individual States, simply refused to acknowledge the authority of that court or the validity of the agreement wouldn't that make the whole point moot?

IMO the whole thing is ridiculous. Vietnam and Brunei are in. Japan and Canada are out. Mexico can't even contain the corruption and violence in their own country, but now they're in. Who decides these things (as if we can't guess)?

I'm not really an isolationist, but I'm also not sure linking our economy to everyone in Asia makes a lot of sense. At times I do wish we would have developed a coherent energy policy 20 years ago so that we would at least have a credible option to turn inward if the situation demanded. Any threat of closing the doors now would obviously not hold water so, once again, we negotiate from a position of weakness on the international stage. We are nothing if not a myopic people.

I thought treaties trumped everything else. Kind of a constitutional wild card.

The 1% of the 1% are global and I expect don't want to be hobbled by things like constitutions and laws. While flag waving is good PR, it really comes down to the money.

[Alan]

I thought treaties trumped everything else. Kind of a constitutional wild card.

The 1% of the 1% are global and I expect don't want to be hobbled by things like constitutions and laws. While flag waving is good PR, it really comes down to the money.
I don't know. This seems more like a global redistribution scheme to me. Sort of like Cap & Trade.

[bae]

I thought treaties trumped everything else. Kind of a constitutional wild card.


It is a common Internet meme, but no. Treaties must comply with the Constitution.

See Reid v. Covert, for example.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=354&page=1




There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect.* It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights – let alone alien to our entire constitutional history and tradition – to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.