On June 10th, Alan B. Morrison, one of America’s leading Constitutional lawyers, sent a letter to all members of the U.S. House of Representatives, explaining why U.S. President Barack Obama’s proposed Trans Pacific Partnership (TPP) would violate the U.S. Constitution.
The striking headline above his letter is “The Investor-State Dispute Settlement Provisions in the Trans-Pacific Partnership Agreement Violate Article III of the United States Constitution.”
He explains, at the start:
“I am writing this letter because I believe that the creation of private arbitral tribunals to decide whether otherwise valid federal, state, and local laws are inconsistent with the investor protection provisions of the TPP improperly removes a core judicial function from the federal courts and therefore violates Article III of the Constitution.”
He then emphasizes that, “my objection is that our Constitution does not permit disputes that, in practical effect, challenge the legality under the TPP of federal, state, or local laws of the United States, to be assigned to private parties for their exclusive resolution.”
He gives examples of the dangerous consequences that this would open up, such as:
“If Congress decided to regulate them [e-cigarettes] after enactment of the TPP, a non-U.S. investor from a TPP country that makes e-cigarettes here could ask an ISDS panel to rule that its investment-based expectations were improperly violated [by the regulation] and thus that it is entitled to damages under the minimum standard of treatment provisions.”
“A similar challenge could be made by a TPP investor who owned farm land in California and objected to an intensification of mandatory water rationing for farms enacted after the TPP goes into effect, even if such rules also applied to U.S. owners of land that would be adversely affected by them.”
“Given the importance of the ISDS provisions to the TPP, the Administration owes it to Congress and the American people 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.”
As a career lawyer, who stands far more to benefit by endorsing — rather than by criticizing (as he strongly does here) — Obama’s stunningly pro-mega-corporate ‘trade’ deals (TPP, TTIP, & TISA, all of which actually present the very same Constitutional issues that TPP does and that Morrison is here attacking), Morrison is nothing less than heroic by his pointing out how horrific these deals actually would be.
Tomorrow, I (who, in lucky contrast, am only a private citizen, with no career or other personal involvement in these matters) shall post a more-detailed case than Morrison has presented, in which I shall argue that Fast Track Trade Promotion Authority, which is essential in order for any ‘trade’ deals like this to be able to stand even a chance of being passed by Congress, is, itself, blatantly unConstitutional, and has been so, ever since it was passed into law in 1974 and never yet been reviewed by the U.S. Supreme Court as to its Constitutionality (which it actually lacks).
So, if any of Obama’s three mega-corporate international ‘trade’ deals (TPP, TTIP, & TISA) does become passed into U.S. law, then the Constitutional challenges, which should actually have started in 1974, will finally begin, and these will be the issues that ultimately decide the matter. Unfortunately, however, the pressures upon the Supreme Court to avoid examining the (anti-Constitutional, I shall argue) can of worms that President Richard Nixon proposed in 1973 and that Congress passed into law the next year, will be enormous and might actually swamp the Constitution itself, as the jurists draw up their rulings. Regardless of how the Supreme Court rules by then, the ruling will create enormous damages, because, even if the Court upholds the Constitution, then the consequent overthrowing of NAFTA etc. by the U.S. as a signatory nation to an unConstitutional agreement, will be severely attacked by other signatory nations.
My article tomorrow will lay out the case that has never been presented to the Supreme Court, because that Court did not want to lead the country, and also because no one in either the Executive or the Legislative branch was willing to do what has been his and her professional duty, to uphold our Constitution — so, this entire issue, of the Constitutionality of such ‘trade’ deals, has simply been ignored, until now.
Investigative historian Eric Zuesse is the author, most recently, of They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of CHRIST’S VENTRILOQUISTS: The Event that Created Christianity, and of Feudalism, Fascism, Libertarianism and Economics.