Questions Arise: Is the Trans-Pacific Partnership Unconstitutional?

[KoKo]

Is the Trans-Pacific Partnership Unconstitutional?

by Alan Morrison --the Lerner Family Associate Dean for Public Interest and Public Service Law at George Washington University Law School.

Provisions that allow foreign investors to bypass the federal courts could undermine U.S. legal protections.

....snip....

In recent years, there has been a major increase in the use of arbitration in the United States to decide commercial disputes, but those cases involve contracts in which the parties agreed to arbitration, with the outcome generally depending on how factual issues are resolved. TPP arbitrators, by contrast, will decide what is essentially a legal question: whether governmental actions, which are designed to protect our health, safety, environment and economic well-being, are consistent with the TPP. Those protections extend from locally enacted laws like the San Francisco minimum-wage provision, to state statutes and regulatory actions, to laws passed by Congress and decisions of federal regulatory agencies. And under the TPP, as under other trade agreements, decisions of a majority of the arbitrators on compliance with the TPP will not be subject to review in any court, federal or state.

Among the other important public policy measures currently being debated that might be the basis for a TPP claim by a foreign investor include water rationing in California, the legality of selling e-cigarettes to minors, and the state regulation of medical facilities performing abortions. If a foreign investor won a TPP arbitration in these situations or the wage increase discussed above, that would not only cost the Treasury, but it would disadvantage American competitors who cannot benefit from TPP arbitrations, unless the offending law were set aside. And if governments feel compelled to set aside such laws in response to adverse rulings, the three arbitrators will effectively have substituted their own judgments for that of the electorate.

Under the TPP, the arbitrators will act like judges, deciding legal questions just as federal judges decide constitutional claims. However, unlike judges appointed under Article III of the Constitution, TPP arbitrators are not appointed by the president or confirmed by the Senate, nor do they have the independence that comes from life tenure. And that presents a significant constitutional issue: Can the president and Congress, consistent with Article III, assign to three private arbitrators the judicial function of deciding the merits of a TPP investor challenge?

The Supreme Court has not ruled on this precise question. But the collective reasoning in four of its recent rulings bearing on the issue leans heavily toward a finding of unconstitutionality. The Court has placed significant limits on the ability of Congress to assign the power to decide cases traditionally handled by the courts to people other than Article III judges, even when the judicial substitutes are full-time federal officials, such as bankruptcy judges or the heads of federal agencies. Moreover, in each case in which the Court approved of a dispute being taken away from federal judges, there was judicial review at the end of the process, which is not the case with TPP. Moreover, although the Justice Department issued a lengthy opinion in 1995 on when arbitration can be used to replace court adjudication, it did not then, and has not since then, defended the constitutionality of arbitration provisions like those in the proposed TPP.

As it presses for the passage of TPP, the administration needs to explain how the Constitution allows the United States to agree to submit the validity of its federal, state, and local laws to three private arbitrators, with no possibility of review by any U.S. court. Otherwise, it risks securing a trade agreement that won’t survive judicial scrutiny, or, even worse, which will undermine the structural protections that an independent federal judiciary was created to ensure.

http://www.theatlantic.com/politics/archive/2015/06/tpp-isds-constitution/396389/#disqus_thread

[Betty Karlson]

1. Please let it be so.

But the current SCOTUS would side with the corporatists, obviously.

[KoKo]

2. It would take awhile to get there...after going through the lower courts, though.

I'm hoping someone takes it on.. AFL-CIO along with other groups who fought so hard against it.

Any delay for the TPP would be a good thing. There is still passion out there for bringing it down...we have to hope--since so much effort has gone into stopping it.

[AZ Progressive]

9. Which would mean a Democratic win in 2016 is our only chance left to defeat the TPP...

If the TPP passes.

So we can get a Democratic change of power in the Supreme Court to rule down the TPP.

[msongs]

3. ask the "constituional scholar" corporatist president responsible for the TPP in the first place nt

[hedda_foil]

4. Also, they've as much as admitted it's a treaty, not a trade agreement.

The past week or so, they've been pushing the foreign policy side of the agreements. A document through which governments bind their obligations with respect to other government(s) is a treaty as far as I'm concerned. We have been completely and utterly betrayed by representatives we elected under a corrupted system that obliges Persidents, Senators and Representatives to kowtow to the wishes of global corporations and billionaires.

[KoKo]

5. Many of us as kids were taught that "Checks & Balances"

would always keep our American form of Government safe from becoming a "Totalitarian State."

So...our last resort is the LAW. "TPA, TPP need to be challenged.


It is an outgrowth of the "Citizens United Decision" that allowed the TPA, TPP writers to dare to go further ...since the whole thing was written by Corporations, in secret and concealed from Congresspersons who were not allowed to take notes on what was in the TPP amd, were denied access for their Staff Members and only allowed a short amount of time for Themselves to view the many, many documents put into the TPP being written by the Corporations that they were supposed to vote on without even discussing.

[hedda_foil]

7. Agreed. If it's ever to get overruled, it would have to go through the Supremes.

Of course, a state or cityforced to pay off a corporate oligarch under any of the so-called trade agreements since NAFTA could bring a suit under US law, which would ultimately wind up there. Perhaps the Court would strike down a few provisions, if not the whole Damn pact.

Maybe?

[Recursion]

12. Trade agreements are always treaties (nt)

[KoKo]

6. I think we need to have HOPE for a Federal Lawsuit against the "TPA/TPP"....because

it is just a continuation of "Citizens United" where Corporations will NOW write our "Trade Laws" with Congress Approval to Transfer Power to the Corporations and any President who is FUNDED by those SAME CORPORATIONS" ....and the American Citizens (innocent and clueless) because they aren't part of the system and grew up with Corporate Owned MSMedia telling them what to think from "Cradle to Grave" ...STILL THINK that Government and Choice of "Tea Party" and/or "Left Activists" STILL GIVE THEM POWER" when, in Fact....the Deck is Stacked against ALL OF US?

[Hekate]

8. No

[Samantha]

10. That was my very first thought when I learned of this debacle

The very question rang some distant bells. I found a thread I wrote some time ago on this subject:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=439x1105631

Treaties are automatically void if they violate the literal Constitution

http://www.lexrex.com/enlightened/AmericanIdeal/aspects...

&quot a) Treaties

The Constitution is the "supreme Law of the Land." It is controlling as to all officials of the three Branches of the Federal government--Executive, Legislative and Judicial--with regard to all of their pronouncements, actions, decisions, agreements and legislative Acts. Each of them is sworn, by oath of office, to support the Constitution only. To be valid, any treaty must be strictly in conformity to--free from any conflict with--the Constitution. A treaty is like a Federal law in this respect.

The Constitution is supreme over laws and treaties; it expressly states (Article VI, Section 2) that: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . ." This means that any such Law (Act of Congress) which violates the Constitution is automatically made null and void
to start with--nullified by the Constitution itself--and therefore cannot be a part of the "supreme Law of the Land." This is also true as to treaties. "

(End of quoted language)

The language "and the Laws of the United States which shall be made in Pursuance thereof" inserted AFTER the word "Constitution" was intended to incorporate all pre-existing treaties into the new government, PROVIDED said treaty was not in conflict with the Constitution itself. Otherwise, all pre-existing treaties executed prior to the Constitution being implemented would have become null and void. But those words "made in Pursuance" qualify the meaning to state that the treaty must be in furtherance of the Constitution, not in contradiction.

It is pretty obvious why we have a difference of opinion on this subject because many of the Founding Fathers who wrote the Constitution also disagreed. But in Civics classes of old, the concept was taught that the literal Supreme Law of the Land is the Constitution, the Federal laws passed are subservient to it, and the state laws are subservient to Federal law.

more at link.

It would be a breach of the oath of office many of our elected officials take to defend and protect our Constitution. Some might call such breach treachery or worse.

Sam

[aspirant]

11. Interesting

So we could sue pro-TPP legislators in Federal/State courts as well as primary them.

Maybe dragging their butts into the courts may get their attention.

It sounds like the continuation of the Nixon Policy, if the President does it, it's legal

What does the Constitution and laws say about violating your oath of office?

[Samantha]

14. I believe there is a law which says citizens cannot sue a specific politician for

legislation he or she supported. I just remember reading something to that effect. It that were not the case, thinking of the many divisions we have in this Country on most issues, we would probably see a lawsuit over every piece of legislation because somewhere someone would be angry over it. However, someone more familiar with the law might know the specifics of how one could go about suing Uncle Sam as an entity.

I also believe it would be pretty difficult to throw a legislator out of office for violating his or her oath. I am thinking they would have to go through the same impeachment process we are familiar with, and if for instance, it were a Republican caught dead-handed doing something which violated his oath, other people in the Republican party would not support the process of removal because too many are doing the same thing. The only way to remove a legislator -- assuming we are not talking about a very serious criminal act -- would be to vote him or her out the next election. In the case of a criminal act, or some heinous act, the Speaker would probably quietly approach the offender and tell him to resign to save himself from the embarrassment of an open impeachment and perhaps trial in the House and later the Senate by submitting his resignation.

I am sure there are others here more knowledgeable about these matters; maybe they will kick in some thoughts.

Sam

[KoKo]

13. Thanks, Sam...and here's more from Daily Kos Diary challenging the "IDS" Provision of the TPP...

I was digging around last night and found this article which is another way that "maybe" TPP could be found unconstitutional. Has a video from Bruce Stein and a longer version of the article I posted that I got from a different source. I wonder if when the whole TPP is finally released there will be other possible Constitution violation. Labor and the Other Groups have some good lawyers and it wouldn't be great (and good for our country) if they could challenge the TPA/TPP in the Federal Courts.

---------

Tue Jun 16, 2015 at 10:30 AM PDT
Gaius Publius: “ISDS provisions in TPP violate Article III of the U.S. Constitution”

(Note: Gaius Publius has provided written authorization to the diarist to reproduce their posts in their entirety for the benefit of the Daily Kos community.

ISDS provisions in TPP violate Article III of
the U.S. Constitution

by Gaius Publius
republished at Digby’s Hullabaloo
originally published at DownWithTyranny.com
Tuesday, June 16th, 2015

There's a growing recognition within the legal community that the ISDS provisions of treaties like NAFTA, TPP, many trade agreements already signed and almost all agreements going forward ... may well be unconstitutional. That is, they violate protections offered to citizens by important articles of the Constitution — for example, Article III, which establishes the judicial branch of the U.S. government, assigns its powers and establishes the right of trial by jury (my emphasis, obviously):

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

I recommend taking a moment to read the above. It's from our founding document, and it's pretty clear.

What Do Constitutional Lawyers Say About ISDS?

ISDS is shorthand for "Investor-State Dispute Settlement" provisions in current trade "agreements" — these are carefully not called treaties, apparently as an attempt to bypass the Treaty Clause of the U.S. Constitution, which mandates that treaties be ratified by a two-thirds vote of the Senate:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.

ISDS provisions are described more fully below.

I'll offer the opinions of two constitutional experts. You can listen to conservative constitutional lawyer Bruce Fein in the following interview.

Bruce Fein: TPA 'Fast Track' is Unconstitutional!

Much More at:
http://www.dailykos.com/story/2015/06/16/1393749/-Gaius-Publius-ISDS-provisions-in-TPP-violate-Article-III-of-the-U-S-Constitution