Congress – Beesquared

The Supreme Court on Monday ruled that the power to recognize foreign nations belongs to the president alone, resolving a dispute between the executive branch and Congress over the American position on the status of Jerusalem.

The decision came in connection with a passport issued to Menachem Binyamin Zivotofsky, who was born in 2002 to U.S. citizens living in the contested capital. Zivotofsky’s parents had asked the U.S. Department of State to list the place of birth on his passport as “Jerusalem, Israel.” The department declined, citing a longstanding policy of neutrality on the status of the city. Zivotofsky’s passport would list only “Jerusalem” as his place of birth, the department determined.

Zivotofsky’s parents sued, charging that a law passed in 2002 requires the Secretary of State to identify citizens born in Jerusalem who so request as being born in Israel, a position at odds with the policy of presidents dating to the Oslo Accords, which call for Jerusalem’s status to be resolved through negotiation. Though a trial judge declined to resolve the dispute, which the judge concluded presented a question committed to the legislative and executive branches of government, the D.C. Circuit Court of Appeals later sided with the executive branch, declaring the statute to be unconstitutional.

By a vote of 6 to 3, the Court agreed, holding that the Constitution gives the president the exclusive right to recognize foreign governments and nations. “The President’s exclusive recognition power encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including territorial bounds,” Justice Kennedy wrote for the majority. “Albeit limited, the exclusive recognition power is essential to the conduct of presidential duties.”

“The formal act of recognition is an executive power that Congress may not qualify,” he added.

In arriving at its determination, the majority looked to the framework for assessing exercises of executive power first articulated by the Court in 1952, when the justices invalidated a move by President Truman to seize the nation’s strike-bound steel mills during the Korean War. According to that analysis, when the president takes measures that are incompatible with a congressional mandate, the president’s power, as Kennedy explained, “must be both ‘exclusive’ and ‘conclusive’ on the issue.”

The majority traced debates over the power to recognize nations to 1793, when President Washington, without consulting Congress, authorized diplomatic relations with the revolutionary government of France. “Congress expressed no disagreement with this position, and [the French ambassador’s] reception marked the Nation’s first act of recognition—one made by the president alone,” wrote Kennedy.

According to the Court, Congress also honored a decision by President Monroe not to recognize Argentina and Chile initially as those republics cast off colonization by Spain, as well as a determination by President Jackson to recognize Texas when it ceded from Mexico and President Lincoln’s decision to recognize Liberia and Haiti.

Similarly, as the majority noted, Congress acceded to President McKinley’s opposition to recognizing Cuba when it separated from Spain in 1898 and to President Carter’s recognition of the People’s Republic of China instead of Taiwan as the government of China.

Though the recognition power belongs exclusively to the president, Congress has other ways to disagree with the executive branch in the conduct of foreign relations, the majority noted. As Kennedy observed, the Constitution authorizes the legislature to decline to confirm an ambassador, to put in place an embargo or to declare war.

“From the face of [the statute], from the legislative history, and from its reception, it is clear that Congress wanted to express its displeasure with the president’s policy by, among other things, commanding the executive to contradict his own, earlier stated position on Jerusalem,” Kennedy wrote. “This Congress may not do.”

For their part, the Court’s dissenters rejected the majority’s view of the separation of powers at issue. “I agree that the Constitution empowers the president to extend recognition on behalf of the United States, but I find it a much harder question whether it makes that power exclusive,” wrote Justice Scalia, who took the unusual step of reading his dissent from the bench.

Chief Justice Roberts, writing separately, called the ruling unprecedented. “Today’s decision is a first: Never before has this Court accepted a president’s direct defiance of an Act of Congress in the field of foreign affairs,” he wrote.

U.S. and Palestinian officials welcomed the ruling, while the Israeli government declined to comment. “This is an important decision which accords with international resolutions and the resolutions of the U.N. Security Council and General Assembly,” a spokesman for Palestinian President Mahmoud Abbas told Reuters.

Over this Memorial Day weekend, I’ve tried to learn a bit about the recent debate over trade, including legislation that would authorize President Obama and his successor to negotiate trade agreements without the prospect of the deals being dismantled by Congress.

The issue arises most recently in connection with the so-called Trans-Pacific Partnership (TPP), a regional free-trade pact being negotiated among 12 countries: the U.S., Australia, Brunei, Japan, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and, possibly, South Korea and Taiwan. (Note that the U.S. currently has trade agreements with Australia, Chile, Peru and Singapore.)

One hears a great deal of wrangling over trade. Do the pacts strengthen the U.S. economy and add jobs, as supporters say, or send jobs overseas and threaten the environment, as opponents charge? I knew little about the subject so I set out to learn more.

What the Senate passed on Saturday

The Senate approved a measure on Saturday that would grant the president trade-promotion authority (TPA)—sometimes referred to as fast track—by a vote of 62 to 37. The bill now goes to the House of Representatives, which is expected to debate the measure as early as next month.

TPA outlines a series of procedures for moving trade legislation through Congress. Such legislation, which Congress first passed in 1974, limits legislative debate on trade deals the president negotiates. Because Congress cannot amend such deals, both the House and Senates must vote either up or down on trade pacts, which means the deals can pass with a simple majority (as opposed to the two-thirds majority needed to bring up legislation for a vote in the Senate).

In essence, TPA is a compact between the executive and legislative branches that reconciles powers the Constitution grants to both Congress and the president with respect to trade. Article 1, Section 8 of the Constitution gives Congress the power to “regulate commerce with foreign nations… ” and to “lay and collect taxes, duties, imposts, and excises… ” Though the Constitution gives the president no explicit authority over trade, Article II authorizes the president to negotiate treaties and international agreements.

TPA empowers the president to enter into trade agreements with foreign nations, provided, among other stipulations, that at least 90 days prior to entering into an agreement, the president notifies Congress of his intention to do so and publishes the text of the agreement at least 60 days prior to the U.S. entering into the deal. That way Congress can examine the treaty and consider implementing legislation subject to the limitations on debate and amendments.

The latest grant of trade promotion authority would tie to a series of trade deals that, besides the TPP, include Trans-Atlantic Trade and Investment Partnership, a pact that is being negotiated between the U.S. and the European Union; the Trade in Services Agreement, a trade pact being negotiated by the U.S. and 22 other countries, including the EU; and the Environmental Goods Agreement, a trade agreement the U.S. and 13 countries that among them represent roughly 86 percent of global trade in solar panels, wind turbines or advanced batteries.

As President Obama describes it, TPA is essential to America’s pivot toward Asia, where China also is influencing the rules of trade. As the president explained in his latest State of the Union address:

“Today, our businesses export more than ever, and exporters tend to pay their workers higher wages. But as we speak, China wants to write the rules for the world’s fastest-growing region. That would put our workers and our businesses at a disadvantage. Why would we let that happen? We should write those rules. We should level the playing field. That’s why I’m asking both parties to give me trade promotion authority to protect American workers, with strong new trade deals from Asia to Europe that aren’t just free, but are also fair.”

Support for trade promotion authority scrambles party lines. Only two Republicans in the Senate—Senator Rand Paul, the Kentucky Republican and White House hopeful; and Senator Richard Shelby of Alabama—joined 35 of the chamber’s 44 Democrats and two Independents to oppose the measure. Shelby said in a statement that he fears “that Alabama could lose a significant number of jobs if President Obama agrees to an unfair agreement.” Meanwhile, Majority Leader Mitch McConnell of Kentucky predicted that TPA would create “new opportunities for bigger paychecks, better jobs and a stronger economy.”

Opponents, who include senators from manufacturing states, say the negotiating objectives contained in the bill are insufficient. “Trade Promotion Authority will green light a deal that will not advance wage growth in Pennsylvania or our manufacturing sector,” Senator Bob Casey (D-Pa.) said in a statement.

Senator Debbie Stabenow, a Democrat from Michigan who opposed the bill, contends that manufacturers in her state see the competitiveness of their exports weakened by countries that manipulate their currencies. Senator Elizabeth Warren, the Massachusetts Democrat who leads the party’s populist wing, charged that big banks will use trade deals “to water down financial regulations.”

That’s because, as Paul Krugman opined recently in the Times, the TPP “could force the United States to change policies or face big fines, and financial regulation is one policy that might be in the line of fire.” Krugman points to the example of Canada’s foreign minister recently telling bankers in the U.S. that the so-called Volcker Rule, which bars banks from certain forms of risky trading, may violate the North American Free Trade Agreement.

Trade promotion authority has the support of manufacturers, Hollywood studios, pharmaceutical companies, farmers and the software industry, among others. Organized labor opposes it. “Fast track trade deals mean fewer jobs, lower wages, and a declining middle class,” Rich Trumka, president of the AFL-CIO, wrote to Congress in March.

The Trans-Pacific Partnership

The economic impact of the TPP, which was proposed by President George W. Bush and later taken up by President Obama, may depend on several factors, including the extent of trade liberalization achieved in the agreement and, of course, the trade and investment that develops among members, according to a report last March by the Congressional Research Service (CRS).

Taken together, countries that are party to the agreement represent about 40 percent of the global economy and the largest U.S. trading partners, accounting for 41 percent of total U.S. goods traded in 2014 and 24 percent of total U.S. services trade a year earlier, according to CRS. The treaty has 29 chapters that cover such industries and issues as financial services, labor, plant and food safety, telecommunications, intellectual property and the environment.

Estimates of the TPP’s potential impact on the U.S. economy suggest that the effect might be modest. According to David Rosnick, an economist with the Center for Economic and Policy Research, a progressive think tank, the gains to the U.S. economy from the TPP will be “meaninglessly tiny” while workers whose wages fall in the middle of the wage spectrum “are likely to lose” as a result of the deal.

An analysis by Peter Petri and Michael Plummer for the Peterson Institute for International Economics that was published in June 2012 predicts that the U.S. will gain $78 billion annually—a bump in income of 0.19 percent—from the TPP. A study in 2012 by the National Bureau of Economic Research projects a gain of 0.22 percent of GDP provided that the signatories remove non-tariff barriers.

Though the gains don’t seem that significant compared with the size of the U.S. economy (gross domestic product stands at nearly $17 trillion), there are other objectives at stake. “For the United States, the TPP’s overriding purpose is not to contain China but to create a counterweight to its rise,” Robert Samuelson wrote recently in The Washington Post.

For its part, the Obama administration says the TPP aims to set standards for trade, not to put China on the defensive. “TPP is open architecture, and TPP is really meant to be about setting high standards for trade — standards that aspire to be equivalent to the United States’,” Commerce Secretary Penny Pritzker told the Times last spring.

The White House terms the Trans-Pacific Partnership “the most progressive trade agreement in history.” According to the Obama administration, the deal would reduce or eliminate tariffs for American goods and make foreign state-owned companies compete fairly with U.S. businesses. The deal also would ensure, among other things, the rights of workers to form unions and bargain collectively, protect wildlife and the environment, and remove tariffs and other impediments to an open Internet and the sale of high-tech products, the administration says.

Some disagree. According to Public Citizen, a nonprofit group that champions citizen interests before Congress, the TPP would, among other ills, offshore U.S. jobs and expose Americans to unsafe food and products. Public Citizen, the AFL-CIO, the American Association of Retired Persons and Doctors Without Borders all have charged that patent protections in the TPP will hike the cost of medicines by delaying cheaper versions from entering the market. For its part, the Obama administration says the pact will expand access to generic versions of patented drugs.

According to the Electronic Frontier Foundation, the TPP also would enshrine laws that restrict fair use of copyrighted material, diminish competition in businesses ranging printer cartridge refills to mobile phones, and subject journalists to criminal penalties for revealing or accessing information via a computer system that is allegedly confidential.

Robert Reich, who served as labor secretary under President Bill Clinton, wrote recently that despite the administration’s push to counter the influence of China, the TPP “will also allow American corporations to outsource even more jobs abroad.”

According to Reich, corporations “want more international protection when it comes to their intellectual property and other assets… But they want less protection of consumers, workers, small investors, and the environment, because these interfere with their profits. So they’ve been seeking trade rules that allow them to override these protections.”

As for public opinion, 58 percent of Americans view trade as a opportunity for U.S. economic growth through more exports, while 33 percent view trade as a threat to the economy from imports, according to a poll last February by Gallup. Sixty-one percent of Democrats trade mainly as an opportunity for the U.S., compared with 51 percent of Republicans. According to Gallup, Americans’ support for free trade may correlate with their confidence in the economy.