Is the Trans-Pacific Partnership Unconstitutional?

[Purveyor]

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

Alan Morrison Jun 23, 2015

It is January 2017. The mayor of San Francisco signs a bill that will raise the minimum wage of all workers from $8 to $16 an hour effective July 1st. His lawyers assure him that neither federal nor California minimum wage laws forbid that and that it is fine under the U.S. Constitution.

Then, a month later, a Vietnamese company that owns 15 restaurants in San Francisco files a lawsuit saying that the pay increase violates the “investor protection” provisions of the Trans-Pacific Partnership (TPP) agreement recently approved by Congress. The lawsuit is not in a federal or state court, but instead will be heard by three private arbitrators; the United States government is the sole defendant; and the city can participate only if the U.S. allows it.

It is not a far-fetched scenario. The TPP reportedly includes such provisions, as a means of solving a thorny problem. In the United States, the courts are, by and large, independent and willing to fairly decide challenges to arbitrary government laws and rulings, no matter who the plaintiff is. The same is not consistently true in less developed countries.

The solution proposed in the TPP is to allow foreign investors to bring claims for money damages over violations of the TPP’s investor protection provisions before a private arbitration tribunal that operates outside the challenged government’s court system. One arbitrator would be chosen by the investor, one by the country being challenged, and a third by agreement of the other two arbitrators.

The arbitrators are often lawyers who specialize in international trade and investment, for whom serving as arbitrators is only one source of their income. Unlike U.S. judges, they are not salaried but paid by the hour, and they can rotate between arbitrating cases and representing investors suing governments.

more...

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

[The Velveteen Ocelot]

1. How can we tell? We're not allowed to read it.

Maybe that fact alone makes it unconstitutional.

[Gregorian]

2. Here's another thread on the unconstitutionality.

http://www.democraticunderground.com/1017273829

[Igel]

3. It's a question.

But rather than ask which of different possible answers is likely to be the correct one, the writer picks one so all you ever see is one answer.

Probably the adjudication isn't unconstitutional. There are already a wide variety of adjudication procedures in place which are binding between governments, including the US, and lead to fines and tariffs being imposed without "Article III" judicial scrutiny.

After all, the adjudication doesn't involve anything in the US other than the Federal government. Whether the feds bow to pressure to do something about it is an internal political matter. It would actually be the executive branch putting pressure on the legislative branch to do something about it, so there's a bit of a buffer.

Take another example. The US is bound to provide consular access to anybody arrested within some period of time--24 hours, is it? Yet while the Vienna Convention was ratified and is the "law of the land" the Congress never made this binding on local law enforcement. The US was found guilty in the International Court of Justice of failing to uphold its treaty commitments under the terms of the Vienna Convention.

The ICJ is not an "Article III" judiciary. It's composition really doesn't matter--the US has recognized its authority. However, local law enforcement doesn't have to uphold it until there's some law. Notice that local jurisdictions have no say in the matter at all. Nor should they, since they're not party to the agreement. Presumably the foreign body, the ICJ, could in some way pressure the Executive to pressure the Congress to take some action in ways not compatible with the Constitution, but whatever they did would then be subject to judicial scrutiny in the US. The treaty is Constitutional and it's up to Congress to decide what to do about its non-compliance. In the end there was no monetary punishment and Congress did, IIRC, squat.

There was little concern that this process might be unconstitutional when this particular case was in the spotlight. In fact, there was more concern that we weren't complying with the ICJ's verdict and that Congress hadn't already implemented that Vienna Convention provision in a way binding on local jurisdictions, so that the ICJ's verdict *would* immediately apply to the local jurisdiction. Without what's now all-important "Article III" judicial review.

La moins ca change, le plus s'est la meme chose consideree differente.

[chev52]

4. Open for scrutiny.

Will the TPP ever be opened up for scrutiny to see if parts of it are unconstitutional? It seems bizzare to me. There might be clauses in there to allow foreign countries, Even Red China, to bid on producing our military equipment. Wouldn't surprise me, either.

[Flying Squirrel]

5. I'm sure 5 SC justices can be found

Who think it's constitutional.