I’m not as sorry as the editors to see the Trans-Pacific Partnership laid to rest. Because I agree with our editorial on a number of points, and because I fear that what I dislike about TPP is actually appealing to President Trump (and likely to recur in any bilateral deals his administration strikes), it is worth adding a few thoughts of my own.
1. The manner in which the Obama administration went about negotiating TPP has been wrongly maligned, undoubtedly because of (and contributing to) the distaste in which international trade is held these days. I have negotiated about a million plea agreements, some of them quite complicated. Had they been negotiated out in the open, with running commentary on the possible terms by non-parties or agencies whose interests might be affected, they would never have been consummated. The moving parts of an international trade deal — even a bilateral one — make it infinitely more complex than a plea deal.
While Congress has a critical constitutional role in reviewing international agreements, it is the president’s job to conduct international relations and make treaties. Eleven other countries cannot be expected to negotiate with 535 legislators plus the executive branch. Thus, the complaint about Obama’s having conducted secret negotiations with foreign governments in order to spring a damaging agreement on the United States was meritless in the case of TPP. (It is an apt complaint in the case of the Iran nuclear deal, which Obama never intended as a treaty.)
While TPP could have been damaging, that is because of its terms, not the secrecy in which they were negotiated. The question was not whether Congress should have had the opportunity to review aspects of the deal while it was being negotiated. (Lawmakers did in fact have that opportunity, under conditions of confidentiality that were appropriate no matter how much Congress complained about them.) The question was whether Congress was given an opportunity for meaningful review after the agreement was finalized by the countries taking part. There is no doubt that legislators had that opportunity — and, indeed, that TPP could not have been imposed on the U.S. without their consent.
2. Which brings us to Trade-Promotion Authority — the “TPA” that, regrettably, was conflated with TPP in the public debate. I continue to believe that TPA, which obliges Congress to give the president an up-or-down vote without amendments after the president has negotiated an international agreement, not only makes eminent sense but is the best way to avoid bad international agreements.