Make Public the Full and Final Versions of the Trans-Pacific (TPP) and Trans-Atlantic Treaties
Open Letter to Senator Elizabeth Warren
by John-Henry Hill, M.D.
May 12, 2015
To: Senator Elizabeth Warren
From: John-Henry Hill, M.D.
Date: May 12, 2015
Subject: Make Public the Full & Final Version Trans-Pacific (TPP) and Trans-Atlantic Treaties
Dear Senator Warren, May 12, 2015
Like many Americans, I have been closely following the debates regarding the Trans-Pacific (TPP) and Trans-Atlantic ”free-trade” treaties. However, the contents of these treaties is being kept SECRET from the public. Indeed, even House members are NOT allowed to view these treaties. And Senators are NOT provided with FULL COPIES of these treaties, but instead are required to read them small portions in a sealed room; can retain NO notes they write regarding the Treaties; and can NOT even discuss the contents of the treaties!
How can Senate and House members be expected to vote on treaties which they have NOT been allowed to study in detail and discuss with other members and outside specialists? However, NOT knowing ANYTHING regarding the contents of these treaties, the most immediate issue for the public appears to be whether to grant President so-called “fast-track” authority, in which no amendments or even any debate will be allowed in the Senate.
“If the president is so confident it’s a good deal, he should declassify the text and let people see it before asking Congress to tie its hands on fixing it,” Warren said in the interview with the Plum Line blog. “Senator Warren hits back at Obama in Pacific Rim trade fight” by Emily Stephenson (Reuters) of May 11, 2015. [ http://www.reuters.com/article/2015/05/11/us-trade-obama-warren-idUSKBN0NW1N020150511 ]
I agree with your position about making public the full contents of these treaties, but NOT with your arguments or tactics for doing so (e.g., that the treaties may “weaken U.S. bank rules” and so on).
The primary argument should be whether giving the President “fast-track” authority is CONSTITUTIONAL.
The Constitution of the United States of America explicitly states:
a.) Article II, Section 2, Paragraph 2
“He [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;…”
b.) Article I, Section 5, Paragraph 2
“Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”
c.) Article I, Section 8, Paragraph 3
The Congress shall have power … “To regulate commerce with foreign nations …”
It is clear that the Senate can create its own internal rules (Article I, Section 5, Paragraph 2), but ONLY if they do NOT conflict with the Constitution. Article I, Section 8, Paragraph 3 gives Congress the power “to regulate commerce with foreign nations …”. And Article II, Section 2, Paragraph 2 states, “He [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;…”.
First, the House and Senate can NOT create internal rules which violate these provisions of the Constitution. Second, the Constitution does NOT authorize the Senate to delegate any of its powers to the President, just as the President can NOT delegate to the Secretary of Agriculture the power to approve or veto a bill passed by Congress. (Ancient Maxim of Law: “A delegated power cannot be again delegated. A deputy cannot appoint a deputy.”) Finally, the Constitution does NOT allow the Senate to approve any treaties unless two thirds of the Senators present concur. Consequently, the granting of “fast-track” authority to the President regarding treaties of ANY kind is clearly a violation of the Constitution.
One further issue arises: even if the Senate approves the Trans-Pacific (TPP) and Trans-Atlantic ”free-trade” treaties, the question of the whether the House is required to fund the implementation of these treaties arises. And the answer to that question is clearly “NO”.
1.) Giving the President “fast-track” authority regarding these treaties in an unconstitutional delegation of powers reserved specifically to the Senate. Ancient Maxim of Law: “A delegated power cannot be again delegated. A deputy cannot appoint a deputy.”
2.) Before any Senator votes on any treaty or other legislation, he/she should have personal possession of a FINAL version of that treaty or legislation, with sufficient time to study and discuss with other members and any outside experts he/she desires before a vote can be scheduled.
3.) House members should also have personal possession of a FINAL version of that treaty or legislation, with sufficient time to study and discuss it.
4.) The full text of the FINAL version should also be made public, allowing them time to read and discuss it; then contact their Senators and Congressman with their concerns.
5.) Should these “free-trade” treaties pass the Senate, I expect you to vote AGAINST any funding for their implementation.
Senator Warren, you have a reputation as an excellent attorney, but I am an historian (as well as a physician-medical researcher and medical research programmer) – and this question falls into my area of expertise. My area of specialization: “The Evolution of American Law-Political History from the Colonial Period Through the American Civil War”.
A lesson from the past: The Jay Treaty of 1795
A situation not dissimilar from the current “free-trade” treaties took place in 1795 with the Jay Treaty with Britain. Under the Jay Treaty Britain, then at war with France, offered the U.S. no commercial trade preferences; could continue to “impress” American sailors into the British navy; would be subject to no tonnage or tariffs upon British ships or goods for a period of 10 years; failed to stop the seizure of American ships thought to be shipping goods to France; and allowed Britain to maintain its forts on America’s western frontier.(1) Even President Washington did not like the treaty written by Jay and kept it for four months before he could bring himself to submit it to the Senate.(2)
As with the current “free-trade” treaties, the contents of the Jay Treaty were kept secret from the public and even members of the House of Representatives as per a prior Senate resolution. The Senate debated it (unlike the “fast-track” rules) and on June 24, 1795 it was ratified by the Senate with the minimum number of votes necessary – (2/3 of the Senators present and concurring). However, Senator Mason of Virginia, in violation of the Senate’s “secrecy resolution”, gave a copy of the treaty to Benjamin Franklin Bache, editor of the Aurora newspaper, which printed it on June 29, 1795 – five days after it had been ratified. The news spread like wildfire. (3) (4) Edmund Randolph (the only member of Washington’s cabinet opposed to the Treaty) wrote that President Washington personally gave him (Randolph) a copy of the Jay Treaty to be published following the treaty’s ratification.(5) Washington was expected to sign the Treaty immediately after ratification, but hesitated when he learned that Britain had issued a NEW order that it would continue to seize American ships thought to be carrying goods to France, as well as retain all of its western forts.(6) Randolph (falsely accused by the British Minister Hammond of accepting a bribe from the French) resigned from the cabinet. With Randolph gone, President Washington, under great pressure from the remaining cabinet members, finally signed the Treaty.(7)
The next battle came in the House in March 1796. Two issues were debated:
(a) the contents of the Treaty; and
(b) whether the House was required to appropriate money for the implementation of a treaty already ratified by the Senate and President.
Was the House independent of the Senate and President; or a mere appendage?
The provisions of the Jay Treaty had been kept secret from House members by a Senate resolution, so that House members learned of the Treaty’s contents only AFTER its ratification and subsequent publication in various newspapers. Now the House demanded the documents which would explain the negotiations resulting in the Treaty. The Senate refused. The House voted a resolution requesting such documents from President Washington. Washington issued a written refusal and instructed the House to “limit its concerns with treaties to appropriations.”(8) Although the people as a whole opposed the Jay Treaty, President Washington was still such a highly revered (almost God-like) figure that the public supported Washington’s refusal. The House approved the funds to implement the Jay Treaty. But Washington, who had never truly liked the Treaty, wrote of the public as being greatly agitated about the Treaty “in a higher degree than it has been at any period since the Revolution.”(9) Washington was correct and one of his greatest fears was a direct result of the process that resulted in the Jay Treaty: the creation of formal, organized, opposing political parties – which he believed was the major flaw in Britain’s parliamentary system. Of even greater importance were the political and economic divisions created between the industrial North and the agrarian South, which would eventually lead to the U.S. Civil War.
(1) Samuel Flagg Bemis, “Jay’s Treaty”, (New York, 1923), 257, 259-61.
(2) Gaillard Hunt, Introduction to Bemis, “Jay’s Treaty”, xiii
(3) Gaillard Hunt et al., “The Writings of James Madison, 9 Vols.”, (New York, 1900-10)VI, 258
(4) Moncure Daniel Conway, “Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph”, (New York and London, 1888), 295
(5) Moncure Daniel Conway, “Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph”, (New York and London, 1888), 261
(6) The Jay Treaty prohibited such seizure of American ships, but the NEW order was based on a NEW legal argument: the “right to seize enemy property, in neutral bottoms, a course of action the legality of which in proved cases was sanctioned in the Treaty and could not be denied under international law.” Therefore, the British did not consider this new order for seizures a violation of the Treaty. Josiah Turner Newcomb, “New Light on Jay’s Treaty”, American Journal of International Law, XXVIII, (Oct, 1934), 687
(7) Irving Bent, “Edmund Randolph Not Guilty”, William and Mary Quarterly, 3d set., VII (April, 1950), 179-98
(8) March 30, 1796, Fitzpatrick, “Washington’s Writings”, XXXV, 2-5
(9) Washington to Pinckney, May 22, 1796, Fitzpatrick, “Washington’s Writings”, XXXV, 62
John-Henry Hill, M.D., Ph.D.