No matter how you look at it, there are mixed messages coming out of Washington on trade negotiations.
Congressmen are quick to say they understand the importance of NAFTA, especially to farm states. They also say the know how beneficial it would have been to agriculture to ratify the Trans-Pacific Partnership. And they are widely united in agreement that starting a trade war by imposing a new round of tariffs is a uniquely bad idea.
However, there seems to be a degree of paralysis when it comes to using congressional power to rein in the executive branch and prevent the undoing of NAFTA or push for the re-consideration of TPP. There might even be a question of whether or not the Senate has the authority to approve the already-introduced TPP legislation and force the president to sign veto that legislation. Veto-proof passage could be really interesting.
Rep. Roger Marshall, R-Kan., who attended the latest round of NAFTA talks in Mexico City, says House members are insistent that the executive branch does not have the authority to void NAFTA because its implementation involved legislation duly passed by Congress.
The agreement itself allows a member to withdraw with six months’ notice. But there’s nothing that says such an executive action voids the legislation that implemented the agreement. So, would the implementation stay in effect? If that is the case, then would withdrawal basically be null and void?
Then, there’s the constitutional question. The Commerce Clause describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
It certainly seems that a trade agreement would be a regulation of commerce, making it clearly a power allocated to Congress. Would presidential action to usurp that power be legal?
Also, Article I stipulates that bills concerning the generation of revenue must be introduced in the House of Representatives. Because free trade agreements deal with our nation’s revenue stream, the House has a constitutional obligation to participate.
There might even be an argument that negotiation of tariffs is a congressional power that has been delegated over time to the president. The current strong disagreement between Congress and President Donald Trump might set up an interesting test of the power structure.
Certainly Kansas, like the rest of rural America, has a strong stake in how this power game plays out. The Big First District of Kansas is heavily NAFTA-dependent. Across the country, the agreement has brought huge increases in agricultural exports and higher prices for farmers.
As commodity prices are in a three-year downturn, farmers are understandably unhappy about seeing any action that will hurt exports.
What we have seen so far has been extreme reluctance on the part of the Republican power structure in Congress to assert its right to exercise its delegated constitutional powers. It will be interesting to see if a move to take actions very unpopular with mainstream legislators and widely believed to be harmful to national interest will finally be what it takes to reset the constitutional system of checks and balances.