The 'Fast Track' Trade Bill Assaults the Constitution

06/23/2015 09:14 am ET | Updated Jun 23, 2016

At the start of every Congress, each House Member raises his or her hand, and swears an oath to uphold the Constitution. It is the most basic, and most important, responsibility that The People's representatives have.

To honor that oath truly, every Member of the House must vote "NO" on the so-called Bipartisan Congressional Trade Priorities Act of 2015, better known as Trade Promotion Authority (TPA) or "Fast Track." Not only is this authority bad for American workers and our economy, but it also violates the separation of powers guaranteed in the Constitution.

TPA's goal is constitutionally illicit: to handcuff the ability of the House, Senate, and the electorate to become fully informed about the President's proposed trade legislation, and to oppose or amend it accordingly. TPA is based on the erroneous notions that the president is superior to Congress in discerning what is best for the nation in international trade agreements; and that the Constitution's procedural safeguards against executive tyranny or overreaching should be abandoned to reduce barriers to international trade or investment.

Article I, section 5, clause 2 empowers "Each House" to "determine the Rules of its Proceedings...." Neither the Senate nor the President shall have any say in House Rules; and, neither the House nor the President shall have any say in Senate Rules. House and Senate Rule autonomy underscores not only the Constitution's separation of powers between Congress and the Executive, but the distinct deliberative and political cultures intended for a bicameral legislature to achieve more enlightened policies. If Congress is to be no more than a rubber stamp for executive action, then it has no reason to exist.

TPA defenders note that Congress has periodically granted the President fast track powers for trade agreements, since the Reciprocal Trade Agreements Act of 1934. While this is true, an unconstitutional usurpation does not become constitutional by repetition. The Supreme Court, for instance, held legislative vetoes unconstitutional in INS v. Chadha (1983), notwithstanding their insertions 295 times in 196 different statutes since 1932. And every law student remembers Erie Railroad v. Tompkins (1936), in which the Supreme Court held that federal courts had been unconstitutionally usurping state authority in diversity cases for a century.

House and Senate agreement to surrender their Rule autonomy via TPA is also no defense to unconstitutionality. The values of liberty and accountability fortified by the separation of powers accrue to the Nation as a whole, not to any particular unit of government. Thus the Court held that congressional prerogatives over taxing and spending could not be surrendered to the President with line-item veto legislation in Clinton v. City of New York (1998). The Constitution's separation of powers does not turn on whether the encroached-upon branch or entity approves of the encroachment, as the Court elaborated in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010).

TPA's champions further claim that the authority preserves the power of the House and Senate to override fast track rules. But the same could have been said about the unconstitutional line-item veto, when Congress retained the power to repeal the surrender of its authorities. Moreover, any effort to supersede fast track with a House or Senate rule would encounter strong headwinds, for political and procedural reasons. It would not be writing on a clean slate. The fact that a House or Senate rule overriding TPA might occasionally succeed as a fluke cannot save the constitutionality of Fast Track. It places a heavy unconstitutional thumb against House or Senate Rule autonomy.

The right to review trade agreements to protect the interests of the American People is a critical function of the House and Senate. Voting to remove that right in the name of higher corporate profits and a faster means to remove environmental protections is a dereliction of duty. We call on all Members of Congress, in both chambers-independents, Democrats, and Republicans--to vote as the Constitution demands, and reject TPA.

*Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan, and is author of American Empire Before The Fall

**Congressman Alan Grayson (D-FL09) is serving his third term in the US House of Representatives.