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It would appear that such an international agreement would comprise a "treaty" under the Constitution, requiring Senate approval. In general, the Senate doesn'

by ISL 13y ago

It would appear that such an international agreement would comprise a "treaty" under the Constitution, requiring Senate approval. In general, the Senate doesn't like being bypassed. Is there an end-run here I don't know about?

snowwrestler 13y ago
No, the agreement will need to go for Senate review, which will be a very long and public process. I like the EFF in general, but they have an unfortunate tendency toward being shrill and incomplete in their public statements. The NY Times here is clearly not endorsing any specific language, but the concept of a well-formed trade agreement. In fact they directly acknowledge the challenge of getting the IP provisions right-- which is the main concern of the EFF.
- thisisparker 13y ago
  Hi snowwrestler, I'm one of the shrill and incomplete activists at EFF. You're correct in the abstract that such an agreement would need Senate review, but as noted in the piece and as we described in a letter to the Senate signed by Amnesty International, FSF, Free Press, and a bunch of others, the USTR is currently seeking "fast track authority" to bypass that process. Read the editorial: the NY Times is endorsing an agreement that the public can't read. If they wanted it to be conditional, they could have written it that way. But instead, they acknowledged concerns and then dismissed them without a good explanation. And the public can't explain it themselves because we can't read the text.
  - anigbrowl 13y ago
    Read the editorial: the NY Times is endorsing an agreement that the public can't read. I did. It isn't.
    - 001sky 13y ago
      the USTR is currently seeking "fast track authority" to bypass that process. So when are we gonna get to read it? After the Fact? Who is supposed to "analyze" this? WTF
      - anigbrowl 13y ago
        When it's offered to the Senate for ratification, which is entirely in line with Article II of the Constitution as far as I can see. The President is empowered to make treaties, and the EFF is being rather disingenuous in seeking to imply that Congress's role is being usurped in any way.
        001sky 13y ago
        The fast track negotiating authority (also called trade promotion authority or TPA, since 2002) for trade agreements is the authority of the President of the United States to negotiate international agreements that the Congress can approve or disapprove but cannot amend or filibuster. Are you taking issue with the premise of fast-track (ie, that it will go regular track)? Because based on the structure, it comes up for a vote in Y/N only. So debate is essentially pointless (unless the whole thing is rejected) as its take-it-or-leave-it. So all of the non-pointless debate needs to occur beforehand. Which is certainly inconsistent with complete secrecy. Or is everybody missing something? https://en.wikipedia.org/wiki/Fast_track_%28trade%29 https://en.wikipedia.org/wiki/Fast_track_%28trade%29
        snowwrestler 13y ago
        Fast track expired in 2007, so yes, if the TPP were introduced today it would come up in Congress under regular order. It's possible that Congress could choose to renew fast track, but that would not mean they are being bypassed--since they themselves would be putting the restrictions in place, and they obviously all know that the TPP is coming down the track. Also--Congress could not even pass a budget to keep the federal government open. Personally I am not worried that they will move too fast on anything in the foreseeable future.
    - Goladus 13y ago
      Right. It's a plausibly deniable cheerleading article for the Obama administration with almost no real content other than the fact that negotations are in progress.
  - lowboy 13y ago
    To me the NYT seemed like they were endorsing the idea of such an agreement, not any current one. It's too bad that the linked EFF article is so overblown, because I think that transparency is badly needed, and that media outlets should cover any TPP dealings better. By sensationalizing things, you've discredited the positive message of the post.
  - snowwrestler 13y ago
    Hi, thanks for commenting. I just think you guys would be more effective if you communicated more honestly. I'm sympathetic to your concerns around IP enforcement in TPP. But instead of discussing those, I find myself having to educate people about the basics of legislative procedure, like whether a treaty will be reviewed by the Senate. Even under TPA, the answer is yes. I don't understand why you guys write this way. It creates massive distraction from your central points (see: most of this discussion), and it turns off folks who have the best understanding of the issues--the folks who theoretically should be most helpful to your cause.
    - cpleppert 13y ago
      >>I'm sympathetic to your concerns around IP enforcement in TPP. But instead of discussing those, I find myself having to educate people about the basics of legislative procedure, like whether a treaty will be reviewed by the Senate. Even under TPA, the answer is yes. I'm not quite sure I understand how an up or down vote in the senate that is certain to pass counts as 'review.' The time to mount any public criticism will be very small and there will be enormous pressure to approve the agreement as amendments will not be possible.
      - snowwrestler 13y ago
        Because the Senate gets to set its own rules for how it operates. It's not like the effect of TPA would be a surprise to the Senate. Senators understand very well what it would mean for their ability to amend trade agreements. If they want the chance to review and amend the TPP, they won't pass TPA.
        vidarh 13y ago
        This is in itself a huge problem: Public debate in the legislature is not just for the legislature, but for the public. A fast-track enables back-room dealing between the executive and legislature that effectively cuts off the opportunity of the public to review and lobby against passage of an agreement, and substantially insulates them against public criticism of parts of agreements by giving them an excuse ("I could only vote yes or no") and keeping it out of the news cycle as much as possible. In other words: Everyone, not just Americans, should worry even more about the contents of such an agreement if the US Senate chooses to allow such an agreement to be fast-tracked, because you can be virtually certain the reason will be because the Senate power brokers are worried the content would not withstand a longer public debate.
  - cpleppert 13y ago
    >>You're correct in the abstract that such an agreement would need Senate review Even without fast track approval the agreement would be structured as a congressional-executive agreement that would not require a two thirds majority. With fast track approval congress would still have to approve the agreement although a filibuster would not be possible.
- ENGNR 13y ago
  But surely after it goes to the senate it will be either a ratify or no-ratify on the agreement. Negotiations will have already finished between countries and everything agreed on, is there any scope for change or public input at that point? The TPP is going to be terrible for some countries, including patent agreements that will multiply the cost of drugs, forced disconnection for copyright infringement and the ability for multi-nationals to sue governments who make laws that will hurt their future profits (eg safety, regulation, security, environmentalism, etc). It's something the public should be actively involved in now, while negotiations are occurring rather than being placated by the New York Times for it to later roll through the senate.
- twoodfin 13y ago
  It will need to go to the House, too: Trade agreements these days are typically implemented as congressional-executive agreements rather than as treaties[1]. The underlying legal theory is that modern trade agreements require extensive changes to domestic law and thus must involve the regular legislative process. And so long as the Congress passes a law that implements all of the U.S. obligations under the trade agreement, and the executive agrees to enforce those obligations, our trading partners don't care that there isn't a Constitutionally-defined "treaty". Politically, in addition to avoiding the potentially damaging effects of bypassing the House, passing trade agreements this way give the executive a more credible (and thus powerful) negotiating position, since he doesn't need to be sure of pulling 67 Senators on board. [1] http://www.fas.org/sgp/crs/misc/97-896.pdf http://www.fas.org/sgp/crs/misc/97-896.pdf
mtgx 13y ago
Yeah, tell that to Obama, who bypassed the Senate with ACTA, too.

by ISL 13y ago

snowwrestler 13y ago

No, the agreement will need to go for Senate review, which will be a very long and public process. I like the EFF in general, but they have an unfortunate tendency toward being shrill and incomplete in their public statements. The NY Times here is clearly not endorsing any specific language, but the concept of a well-formed trade agreement. In fact they directly acknowledge the challenge of getting the IP provisions right-- which is the main concern of the EFF.

thisisparker 13y ago
Hi snowwrestler, I'm one of the shrill and incomplete activists at EFF. You're correct in the abstract that such an agreement would need Senate review, but as noted in the piece and as we described in a letter to the Senate signed by Amnesty International, FSF, Free Press, and a bunch of others, the USTR is currently seeking "fast track authority" to bypass that process. Read the editorial: the NY Times is endorsing an agreement that the public can't read. If they wanted it to be conditional, they could have written it that way. But instead, they acknowledged concerns and then dismissed them without a good explanation. And the public can't explain it themselves because we can't read the text.
- anigbrowl 13y ago
  Read the editorial: the NY Times is endorsing an agreement that the public can't read. I did. It isn't.
  - 001sky 13y ago
    the USTR is currently seeking "fast track authority" to bypass that process. So when are we gonna get to read it? After the Fact? Who is supposed to "analyze" this? WTF
    - anigbrowl 13y ago
      When it's offered to the Senate for ratification, which is entirely in line with Article II of the Constitution as far as I can see. The President is empowered to make treaties, and the EFF is being rather disingenuous in seeking to imply that Congress's role is being usurped in any way.
      - 001sky 13y ago
        The fast track negotiating authority (also called trade promotion authority or TPA, since 2002) for trade agreements is the authority of the President of the United States to negotiate international agreements that the Congress can approve or disapprove but cannot amend or filibuster. Are you taking issue with the premise of fast-track (ie, that it will go regular track)? Because based on the structure, it comes up for a vote in Y/N only. So debate is essentially pointless (unless the whole thing is rejected) as its take-it-or-leave-it. So all of the non-pointless debate needs to occur beforehand. Which is certainly inconsistent with complete secrecy. Or is everybody missing something? https://en.wikipedia.org/wiki/Fast_track_%28trade%29 https://en.wikipedia.org/wiki/Fast_track_%28trade%29
        snowwrestler 13y ago
        Fast track expired in 2007, so yes, if the TPP were introduced today it would come up in Congress under regular order. It's possible that Congress could choose to renew fast track, but that would not mean they are being bypassed--since they themselves would be putting the restrictions in place, and they obviously all know that the TPP is coming down the track. Also--Congress could not even pass a budget to keep the federal government open. Personally I am not worried that they will move too fast on anything in the foreseeable future.
  - Goladus 13y ago
    Right. It's a plausibly deniable cheerleading article for the Obama administration with almost no real content other than the fact that negotations are in progress.
- lowboy 13y ago
  To me the NYT seemed like they were endorsing the idea of such an agreement, not any current one. It's too bad that the linked EFF article is so overblown, because I think that transparency is badly needed, and that media outlets should cover any TPP dealings better. By sensationalizing things, you've discredited the positive message of the post.
- snowwrestler 13y ago
  Hi, thanks for commenting. I just think you guys would be more effective if you communicated more honestly. I'm sympathetic to your concerns around IP enforcement in TPP. But instead of discussing those, I find myself having to educate people about the basics of legislative procedure, like whether a treaty will be reviewed by the Senate. Even under TPA, the answer is yes. I don't understand why you guys write this way. It creates massive distraction from your central points (see: most of this discussion), and it turns off folks who have the best understanding of the issues--the folks who theoretically should be most helpful to your cause.
  - cpleppert 13y ago
    >>I'm sympathetic to your concerns around IP enforcement in TPP. But instead of discussing those, I find myself having to educate people about the basics of legislative procedure, like whether a treaty will be reviewed by the Senate. Even under TPA, the answer is yes. I'm not quite sure I understand how an up or down vote in the senate that is certain to pass counts as 'review.' The time to mount any public criticism will be very small and there will be enormous pressure to approve the agreement as amendments will not be possible.
    - snowwrestler 13y ago
      Because the Senate gets to set its own rules for how it operates. It's not like the effect of TPA would be a surprise to the Senate. Senators understand very well what it would mean for their ability to amend trade agreements. If they want the chance to review and amend the TPP, they won't pass TPA.
      - vidarh 13y ago
        This is in itself a huge problem: Public debate in the legislature is not just for the legislature, but for the public. A fast-track enables back-room dealing between the executive and legislature that effectively cuts off the opportunity of the public to review and lobby against passage of an agreement, and substantially insulates them against public criticism of parts of agreements by giving them an excuse ("I could only vote yes or no") and keeping it out of the news cycle as much as possible. In other words: Everyone, not just Americans, should worry even more about the contents of such an agreement if the US Senate chooses to allow such an agreement to be fast-tracked, because you can be virtually certain the reason will be because the Senate power brokers are worried the content would not withstand a longer public debate.
- cpleppert 13y ago
  >>You're correct in the abstract that such an agreement would need Senate review Even without fast track approval the agreement would be structured as a congressional-executive agreement that would not require a two thirds majority. With fast track approval congress would still have to approve the agreement although a filibuster would not be possible.
ENGNR 13y ago
But surely after it goes to the senate it will be either a ratify or no-ratify on the agreement. Negotiations will have already finished between countries and everything agreed on, is there any scope for change or public input at that point? The TPP is going to be terrible for some countries, including patent agreements that will multiply the cost of drugs, forced disconnection for copyright infringement and the ability for multi-nationals to sue governments who make laws that will hurt their future profits (eg safety, regulation, security, environmentalism, etc). It's something the public should be actively involved in now, while negotiations are occurring rather than being placated by the New York Times for it to later roll through the senate.
twoodfin 13y ago
It will need to go to the House, too: Trade agreements these days are typically implemented as congressional-executive agreements rather than as treaties[1]. The underlying legal theory is that modern trade agreements require extensive changes to domestic law and thus must involve the regular legislative process. And so long as the Congress passes a law that implements all of the U.S. obligations under the trade agreement, and the executive agrees to enforce those obligations, our trading partners don't care that there isn't a Constitutionally-defined "treaty". Politically, in addition to avoiding the potentially damaging effects of bypassing the House, passing trade agreements this way give the executive a more credible (and thus powerful) negotiating position, since he doesn't need to be sure of pulling 67 Senators on board. [1] http://www.fas.org/sgp/crs/misc/97-896.pdf http://www.fas.org/sgp/crs/misc/97-896.pdf

mtgx 13y ago

Yeah, tell that to Obama, who bypassed the Senate with ACTA, too.