Regering Bush en handelsminister Schwab hebben geen mandaat om een Doha deal te tekenen

USTR Schwab and the Bush Administration have no authority to sign a Doha deal
Lori Wallach
March 5, 2008

It has come to my attention that yet another scenario regarding how the Doha Round could be
completed and signed this year is now circulating in Geneva. This scenario is entirely implausible,
given current U.S. legal and political realities.

The Bush administration currently has no authority to sign a Doha Round agreement. Between now
and the end of this session of Congress in September 2008, there is no prospect that Congress will
provide President Bush such authority. I have found it increasingly bizarre that WTO Doha Round
negotiations have continued given negotiations do not normally take place unless all parties have
authority to make a deal.

If WTO countries were pushed into a deal this year and Bush administration officials “initialed” such a
deal, say in December, that communication to WTO member countries would have no U.S. legal
authority. A future U.S. president and Congress would not be bound to an agreement initialed or
signed by President Bush.

1. President Bush has no authority to bind the United States to a Doha Round deal

A U.S. president may negotiate at will, but the United States can only be bound to a trade agreement
through a vote of Congress and a U.S. president may only enter into international trade agreements
prior to such a congressional vote when Congress had explicitly delegated to the president the
authority to do so. This is the case because of the specific features of the U.S. Constitution that create
“checks and balances” designed to ensure no one branch of the U.S. government has undue power over
the others. The U.S. Constitution grants the legislative branch – i.e. Congress – exclusive authority “to
regulate commerce with foreign nations” and to “lay and collect taxes, duties….”1 The U.S.
Constitution gives exclusive authority to the executive branch – the president and his administration –
to conduct relations with foreign sovereigns.

Throughout the years, Congress has created various means to delegate to the president the authority to
enter into a trade agreement.2 Although it has only been used twelve times out of hundreds of U.S.
trade agreements, the mechanism best known internationally is Fast Track. Fast Track is an
extraordinary process under which the Congress authorizes the president to sign trade agreements
committing the United States to the terms of the deal before Congress votes on the deal. Congress must
still approve whatever agreement is so entered into, but under Fast Track the president is given the
authority to bind the United States to the terms of a deal by initialing (or later signing) it – locking in
the terms of the agreement. Then under Fast Track Congress is required to vote on whatever agreement
the president signed within a certain amount of time with limited debate and no amendments.

President Bush’s Fast Track authority terminated on June 30, 2007. Congress has refused to grant him
new Fast Track or otherwise provide him with a delegation of Congress’ exclusive constitutional trade
authority. (Mechanisms other than Fast Track could have been provided.3) This means that while other
countries’ signatures on or initialing of a final deal would bind them – including to whatever final
concessions they offered – after June 30, 2007, President Bush’s signature or initialing of an agreement
does not bind the United States to the agreement’s terms. Basically, President Bush’s signing or
initialing an agreement without authority from Congress to do so is merely his personal consent to the
deal, but does not in any way bind the United States given under the U.S. Constitution only Congress –
or a president delegated authority by Congress – can do so.

Of course, many WTO signatory nations’ trade agreement approval processes require that a signed
agreement still must be approved by parliaments and this raises the prospect that a signed agreement
could be rejected. However, what is different in this context is that a future U.S. president and
Congress would not be bound to the contents of a deal signed by President Bush without Congress’
authority. In contrast, if President Bush had delegated authority from Congress to bind the United
States to a deal by his signature, then under the now-expired Fast Track procedure, it would become
the responsibility of the next president to present the deal as signed to Congress and Congress would
be forced to vote on it within a set number of days with no amendments allowed.

Practically, Bush’s lack of authority means that Congress could simply refuse to consider and vote on a
deal Bush signs now which means it would not go into effect for the United States with implications on
whether it would go into effect for other WTO signatory nations and/or the new president could return
to the WTO negotiating table asking to alter the agreement so that it becomes something he or she is
willing to obtain proper authority to sign and bring to Congress. As U.S. negotiating partners consider
whether to offer final concessions in coming weeks, it is important to understand that the U.S. Trade
Representative or president’s unauthorized consent to whatever deal might be made does not bind a
future president to that deal nor does it require Congress to vote on such a deal.

Some analysts have noted that the United States has entered into numerous trade agreements – over
one hundred during the Clinton presidency alone – without the use of Fast Track.4 This is accurate. If a
president negotiates a trade agreement without having some form of delegated authority from the
Congress, then that agreement’s contents are only locked in place when Congress has approved the
agreement. An example of such an approach was the U.S.-Jordan Free Trade Agreement, which was
passed by Congress in 2001 without Fast Track under normal congressional procedures. Passing an
agreement through normal congressional procedures requires that the contents of the agreement are
broadly supported by Congress. Given this, it is worth noting that many Republican senators, who
might otherwise be inclined to support a Doha deal that favored U.S. corporate interests, have joined
Democrats in opposition to Doha Round Rules texts regarding certain anti-dumping and CVD rules.
Other senators and representatives have issued expansive demands for new U.S. agricultural market
access and have opposed any non-reciprocal tariff cuts.

In contrast to a parliamentary form of government in which the prime minister necessarily has a
parliamentary majority or ruling coalition and thus controls what legislation comes to the parliament
for a vote, in the United States whether an initiative of a president is even brought to the floor of each
chamber of Congress for a vote is decided by each chamber. The reason that so many in Congress have
come to oppose Fast Track is because it eliminates the normal congressional procedures that create
incentives for the president to consult on the front end with Congress about the contents of U.S. trade
agreements. For an agreement to be approved under regular congressional procedure the chairs of
relevant House and Senate committees (trade, agriculture, commerce, etc.) must agree to review an
agreement, write implementing legislation and pass such legislation out of the committees. If the
committees have been involved in negotiations and thus support the agreement, this process could
occur in a timely fashion and then the implementing legislation would move towards the House and
Senate floors. Given President Bush has largely circumvented the committees regarding Doha Round
negotiations, the committee process could pose a significant obstacle. This disconnect may be most
evident regarding agriculture. The Congress sets U.S. agriculture policy. The congressional agriculture
committees are now finalizing a Farm Bill that bears little resemblance to what the Bush
administration is pushing on agriculture in Doha Round negotiations. If the committees do not report
out implementing legislation, the process of approval ends here.

If the committees report out legislation, then the leaders of the House and Senate must agree to bring
such legislation to the floor for consideration. The U.S. House of Representatives operates under rules
that allow the Speaker of the House – the majority party’s leader – to control what legislation comes to
a vote. The House Speaker would have to agree to schedule a vote on the agreement, which typically
only occurs if a majority supported a proposal and thus it can be passed. In contrast, in the Senate, to
close debate on legislation and move to a vote requires three-fifths, or sixty, of the one hundred
senators to agree. Absent sixty votes in the Senate, legislation gets “talked to death.”5

Thus even if the next U.S. president decided to submit to Congress a Doha deal signed without
delegated authority by President Bush (say, because President Bush has not worked with the Congress
to ensure his negotiating positions represent the will of the Congress), it is extremely uncertain at best
whether such an agreement would even obtain a congressional vote, much less approval.

2. Congress will not grant President Bush further Fast Track or other trade authority

I understand that claims are being made that if a Doha Round deal were agreed, then the U.S. Congress
would grant President Bush new Fast Track authority that would grant him the right to sign and lock
the deal. For a variety of reasons, this is an outlandish claim.

First, because this is a presidential election year, the formal schedule of Congress is abbreviated.
Taking into account various congressional recesses and holidays, at best there will be only eighteen
weeks of legislative session between now and when Congress adjourns in September for the November
election. Moreover, as each week passes towards November, the focus of Congress will shift
increasingly to the election. That is to say that while Congress formally will be in session until
September, most members will be focused on the elections – both the presidential and their own
reelections – by summer. As a result, votes between now and adjournment will be limited to those
necessary to make appropriations and pass a budget to keep the U.S. government running until the new
Congress convenes in 2009, reauthorization of major programs that are expiring such as the Farm Bill,
disaster relief funding or other national emergency responses, and matters that are quick and non-
controversial, such a renaming federal buildings. Legislation from the first session of this Congress in
2007 that already is well along the way toward passage may also be given floor time. It is important to
understand that Bush’s expired Fast Track authority was not and is not subject to any sort of automatic
extension.6 Thus, the only way President Bush could now obtain Fast Track authority is for new
legislation to move through the regular legislative process described above with passage of new
legislation by both chambers of Congress. In this context, even if a Doha Deal were reached today, it is
inconceivable that by September, Congress would initiate the process of reviewing such a deal, decide
it was agreeable, negotiate with the White House over the terms of a Fast Track to authorize President
Bush to sign such a deal, get such new Fast Track legislation through the committees and passed in
both chambers (which would require obtaining a supermajority 3/5ths Senate vote and the agreement
of a Senate majority leader who has never supported Fast Track.)

And, that is the case without considering the second point: both chambers of Congress are controlled
by Democrats who have no interest in providing President Bush with any more authority over anything
and who are counting the days until Bush is gone and his high-handed, extremely partisan reign ends.
The theme of the Bush presidency has been abuse of power and to the extent that the Democratic
Congress is paying attention to anything beyond passing the essential legislation needed to keep the
government running, it is investigating the administration’s abuse of its existing authorities. The
Democratic majority controls what legislation comes to the House and Senate floors for votes. In early
2007, some of the Democratic trade committee leaders stated that they would be open to considering a
Doha Round-only Fast Track for Bush – if a deal was agreed that they supported and the
administration worked in a bipartisan manner with the Democratic Congress on trade. Even then, this
position did not enjoy the support of the Democratic congressional leadership – which controls
whether a proposal obtains a vote. However, you will note that even those Democrats most favorably
disposed to the concept of a Doha Round no longer make statements about the possibility of a Doha-
only Fast Track. That is the case because, first, the time frame for such a scenario has passed with last
year and now the trade committee Democrats are focused on wrapping up left over business before
Congress adjourns, such as passing various trade preference programs that will expire imminently.
Second, the trade committee Democrats’ aspirations for a new bipartisan working relationship with the
Bush administration on trade imploded last year, when President Bush issued veto threats against the
Trade Adjustment Assistance bill Democrats had passed and worked to torpedo various China-related
proposals. Now the administration is threatening to send a Colombia Free Trade Agreement to
Congress that the Democrats strongly oppose so as to create a political problem for the Democrats.

Relations between the Bush administration and congressional Democrats are beyond chilly.
Third, as a political matter, Fast Track, the WTO and President Bush are highly unpopular. Even if
President Bush had a magic wand that would allow him to put a Doha Round Fast Track grant on to
the House and Senate floor, it is improbable that he would have the votes to close debate in the Senate
much less the simple majorities in both chambers to pass it. In the past, Bush could count on most
Republicans to support his priority trade policies. However, he is now not only a lame duck, but is so
wildly unpopular with the American public (current approval ratings at around 30%) that Republican
members of Congress are working to distance themselves from Bush as they are running their
reelection campaigns. During his second term, Bush reached the lowest approval ratings of any
president since the commencement of reliable polling in the 1940s.
If the question were polled, Fast Track and the WTO would probably have similarly abysmal
popularity ratings. The United States has lost nearly one out of every six manufacturing job – over
three million net – since WTO and NAFTA went into effect. Although worker productivity has
doubled, median real wages are scarcely above 1970s’ levels. The U.S. trade deficit last year was over
$711 billion – over five percent of GDP – which now even longtime defenders of the trade status quo
label as both a drag on U.S. growth rates and a threat to U.S. and global economic stability. A recent
Wall Street Journal/NBC poll found that now Republican voters – by a margin of two to one – have
joined independents and Democrats in concluding that current U.S. trade and globalization policies are
damaging to them and to the nation. This strong public sentiment is one reason why not only the
Democratic presidential candidates, but also many Senate and House candidates – including now some
Republicans – are running on platforms of changing current trade policies. The notion that a majority
of both the House and the Senate would be willing to voting for a Fast Track to implement more of the
same policy is ludicrous. Indeed, even if there were more time and someone other than Bush were now
president, it is quite unlikely that a Fast Track grant would be forthcoming. Consensus is growing in
the U.S. Congress that the Fast Track system is outdated and no longer appropriate to the reality of
today’s complex international commercial agreements. More likely, some new mechanism will be
created to coordinate the U.S. executive and legislative branches’ authorities over trade.

                                                                                                      
Notes:
1 U.S. Constitution, Article I-8.
2 For instance, Congress has granted what is called ‘tariff proclamation authority’ which delegates to the president the
right to enter into agreements that cut tariffs within certain parameters without requiring Congress to approve each deal.
3 Given Fast Track concentrates so much power in the hands of the president, it is unlikely that the exact same Fast Track delegation authority that been used in the past will be again granted to any future president. The real issue is not whether a U.S. president has Fast Track authority, but whether a U.S. president has any authority from Congress to enter into an agreement.
4 As well, some trade agreements that do not include tariff cuts can be entered into without a vote by Congress.
5 Eventually when a measure cannot obtain sixty votes, it is pulled from the floor, debate ends and the measure dies. Each ear, high profile legislation passed by the House is killed in the Senate when a super-majority of sixty fails to support it.
6 Recall that in 2005, President Bush exercised the option of extending for two more years – through June 30, 2007 – the initial three years of Fast Track that Congress passed narrowly in 2002. The automatic extension was granted when Bush sked for extension by a certain date and Congress did not pass a disapproval resolution by June 1, 2005 – meaning congressional inaction resulted in extension.