The TAA-FTA "Deal," Part 2: It's the Law, Stupid

[Ed note: This is the second of a three-part series in which I'll review the joint FTA-TAA legislation proposed by the Obama administration and Senate Democrats last week. Familiarity with the White House's brilliant plan and recent events is presumed.  Part 1 of the series is available here.]

Now that the Republican-led House Ways & Means Committee has released its own FTA implementing legislation without expanded Trade Adjustment Assistance, it's clear that the House will hold separate votes on the FTAs and TAA expansion - just as Speaker Boehner and pretty much every Republican in the House and Senate have said they'd do all along.  Of course, House consideration of the FTAs in this manner will have to occur without the procedural protections afforded FTA implementing legislation under Trade Promotion Authority (TPA), which holds that only FTA bills submitted by the President may be considered by the House and Senate without amendment and pursuant to strict timelines.  So, with the House going the "clean FTA" route and the Senate pursuing the President's TAA-FTA scheme (confirmed again today by USTR Kirk), the obvious question arises:

What will happen when the House-passed FTA legislation meets the Democrat-controlled (and thus more trade-averse) Senate, which (we assume) will only agree to consider the President's TAA-FTA package?

Well, the increasingly-conventional answer to this question is that Senate could consider the House-passed FTAs under TPA if (i) the House also passes the TAA expansion and then combines the FTA and TAA legislation before sending it to the Senate; and (ii) the House TAA-FTA legislation exactly matches the TAA-FTA implementing legislation ultimately submitted by the President to the Senate.  According to Inside US Trade [$], "industry lobbyists" and even the Senate Parliamentarian (informally) have stated that the joint package would receive TPA protections.

But, assuming that the House does actually pass the separate TAA expansion (a somewhat big assumption considering that the same House rejected TAA only a few months ago), does the TAA-FTA legislation really qualify under TPA's "Fast Track" rules?

In short, no, but it probably doesn't matter because the Senate can - and likely will - just ignore the law.

TPA's rules for congressional consideration of an FTA implementing bill are set forth under US law in 19 USC Sec. 2191.  The law defines "implementing bill" as follows:

(1) The term “implementing bill” means only a bill of either House of Congress which is introduced as provided in subsection (c) of this section with respect to one or more trade agreements, or with respect to an extension described in section 3572 (c)(3) of this title, submitted to the House of Representatives and the Senate under section 2112 of this title, section 3572 of this title, or section 3805 (a)(1) of this title and which contains—

(A) a provision approving such trade agreement or agreements or such extension,

(B) a provision approving the statement of administrative action (if any) proposed to implement such trade agreement or agreements, and

(C) if changes in existing laws or new statutory authority is required to implement such trade agreement or agreements or such extension, provisions, necessary or appropriate to implement such trade agreement or agreements or such extension, either repealing or amending existing laws or providing new statutory authority.

Clearly, TAA doesn't fall within (A) or (B) above, and the word on the street is that Senate Democrats and the White House will claim that the TAA expansion falls under sub-paragraph (C), i.e., that it is a "provision" (a) "repealing or amending existing law or providing new statutory authority" that is (b) "necessary or appropriate to implement" the FTA at issue.

It's absolutely laughable, however, that the TAA expansion attached to the US-Korea FTA would qualify as such a "provision."  First, TAA expansion isn't "necessary or appropriate to implement" the KORUS FTA.  Indeed, one of the key features of the TAA expansion package is that it de-links benefits from US FTAs.  So, other than the fact that both the FTA and TAA have "trade" in their names, their actual substance is unrelated.  Of course, one could argue that inclusion of TAA is politically "necessary" to ensure Senate passage of the KORUS FTA.  However, by this silly political metric, anything - no matter how irrelevant and unconnected to the FTAs - could be deemed "necessary" to implement the FTA and thus entitled to special consideration (e.g., no filibusters) under House and Senate rules.  So if, for example, a majority of US Senators said that they'd only vote for the KORUS FTA if the implementing legislation included a provision giving each of their spouses $1 billion in cold, hard cash, that "provision" would, under the White House's interpretation, be "necessary" to implement the FTA and thus qualify for TPA protections.  This, of course, is absurd.

Second, the White House's expansive view of sub-paragraph (C) totally ignores its introductory clause: "if changes in existing laws or new statutory authority is required to implement such trade agreement or agreements or such extension."  This clause makes it absolutely clear that the "provision... repealing or amending existing laws or providing new statutory authority" must be related to the "changes in existing laws or new statutory authority" that are required to implement the FTA at issue.  So, if an FTA's implementing legislation amends US law, and it's determined that those amendments necessitate conforming edits to other US laws, the provisions containing those consequential conforming edits may be included in the implementing bill and granted TPA's protections.  And this is precisely the type of "necessary provision" that has been included in past FTA implementing bills (such as that for the NAFTA).

So to claim that TAA expansion qualifies under sub-paragraph (C) and thus deserves TPA protection is a serious stretch.  (And that's being kind.)

Yet despite the legal jujitsu (and pokerface practice) that the White House and Senate Dems will have to undertake to make this highly questionable argument, the fact remains that, when it comes to TPA, the actual rule of law doesn't really matter much.  As I've noted previously, TPA's disciplines pretty much mean whatever the House or Senate leadership and a majority of House/Senate members want them to say.  The House/Senate leadership can either overrule the parliamentarian's interpretation of the law, or the House/Senate can just change the darn rules.  The law itself makes this clear:

This section and sections 2192 and 2193 of this title are enacted by the Congress—

(1) as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of implementing bills described in subsection (b)(1) of this section, implementing revenue bills described in subsection (b) (2) of this section, approval resolutions described in subsection (b)(3) of this section, and resolutions described in sections 2192 (a) and 2193 (a) of this title; and they supersede other rules only to the extent that they are inconsistent therewith; and

(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House

If you'll recall, then-Speaker Pelosi exercised this very authority when she suspended TPA protections for the US-Colombia implementing legislation that was submitted by the Bush Administration back in 2008.  So for the TAA-FTA package currently being debated, the Senate can pretty much do with TPA whatever it pleases.

And apparently, that's exactly what Harry Reid and the White House plan to do, regardless of the text of the actual law.  And unless folks stop buying the White House's questionable arguments about TPA, they'll probably get away with it too.  But please, spare me the idea that some combined TAA-FTA legislation submitted by the President to the Senate would definitely qualify for TPA's protections under existing US law.

Because that's just not true.