Either we have a Constitution or we don’t
Before taking office, our elected officials in Washington solemnly swear that they will support and defend the Constitution of the United States against all enemies, foreign and domestic…
Article IV, Section 4 of the United States Constitution reads in part: “The United States shall guarantee to every State in this Union a Republican Form of Government;…”
The secretive Trans-Pacific Partnership (TPP) is a massive treaty agreement with eleven other Pacific Rim nations that gives multinational corporations and foreign firms the right to elevate corporate interests over and above the Constitution and the rights of American citizens.
The TPP codifies the Investor-State Dispute Settlement (ISDS) provision. The ISDS establishes an international tribunal (a separate judicial system—exclusively for the use of corporations—adjudicated by a three-person panel of corporate layers) in which corporations can sue sovereign nations for lost profits stemming from environmental, worker safety and health regulations, or any other local law or policy that might impinge or infringe on a company’s profits or future profits.
To date, the largest ISDS award of $2.3 billion was granted to Occidental Oil Company. An ISDS tribunal ordered Ecuador’s government to pay this massive penalty after acknowledging that Occidental had broken the law and that the forfeiture of the firm’s investment was lawful. In order to justify the award, the tribunal determined Ecuador’s “proportionality” of Occidental’s legal breach was worth $2.3 billion under investor-state obligations. Go figure!
President Obama has rejected concerns over ISDS lawsuits, calling them “just bunk.” Obama: “ISDS is a form of dispute resolution. It’s not new. There are over 3,000 different ISDS agreements among countries across the globe… Under these various ISDS provisions the U.S. has been sued a total of 17 times. Thirteen of those cases have been decided so far. We’ve won them all. They have no ability to undo U.S. laws.” (Excuse me, Mr. President, I don’t mean to interrupt, but President Clinton had to repeal the Glass-Steagall Act to conform to the World Trade Organization’s “General Agreement on Trade in Services.” The repeal of the law separating commercial and investment banking caused the 2008 financial crisis.)
Mr. President, regardless of how many ISDS cases America has won, the ISDS provision will establish a system of foreign tribunals higher in authority than the U.S. Supreme Court. Article III, Section I of the Constitution states, “The judicial Power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain to establish.” Article III, Section II further states, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties (emphasis added) made, or which shall be made…”
What happens when an ISDS tribunal awards a foreign corporation compensation for a U.S. Supreme Court judgment?
James Madison wrote in the Federalist Papers: “The accumulation of all powers, legislative executive, and judiciary, in the same hands,… may justly be pronounced the very definition of tyranny… Were the power of judging joined with the legislative, the life and liberty of the subjects would be exposed to arbitrary control, for the judge would then be the legislator…”
ISDS tribunals will also shift decision making over U.S. tax dollars away from Congress to the authority of international trade tribunals when awarding compensation to corporations. The first time the U.S. loses an ISDS suit Congress will be forced to use taxpayer dollars to settle the claim.
In defining the powers of the President, Article II, Section II 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;…”
In a legislative maneuver known as “fast track,” Congress is being asked by the President to surrender its Constitutional power to the President. Fast track means Congress will be prohibited from amending the trade deal and the TPP will be placed before Congress as normal legislation, not as the treaty it actually is, and it can be approved with a simple 51-vote majority, violating the advise-and-consent mandate of the Senate. In other words, “fast track” takes constitutional power from Congress and gives it to an imperial presidency.
In the Federalist Papers, James Madison defined a republic as “a government which derives all its powers directly or indirectly from the great body of the people…” The very idea that Congress and the President would give a foreign international tribunal the authority to supplant the Constitution and dismantles our republic would have been thought treasonous by the Founding Fathers.
