Last week President Donald Trump notified Congress that he intends to sign the US-Mexico Free Trade Agreement in 90 days, towards the end of November, whether or not Canada joins the pact. The notification was an attempt to ensure that the new agreement would be voted up or down, without amendments, by the House and the Senate, according to terms of the Trade Promotion Authority act of 2015 (TPA was extended for two years in June 2018).
US Trade Representative Robert Lighthizer claims that the US-Mexico agreement, even without Canada, is entitled to consideration under TPA. Several senators and congressmen beg to differ, observing that when Lighthizer first notified Congress in May 2017 of the USTR’s intention to renegotiate NAFTA, a new agreement was contemplated with both Canada and Mexico.
TPA is a unique statute. It does not create private rights of action—neither ExxonMobil nor any other firm can sue Congress for failing to observe the timelines and procedural requirements of the statute. Nor can Texas or another state bring an action to compel congressional behavior. TPA is essentially a gentleman’s agreement between the president and the Congress as to coverage and procedures for considering a new trade agreement. It is not an act that the courts will interpret—they will leave that task to their coequal branches of government. In the final analysis, who in Congress determines what the TPA requires? Essentially congressional leaders, foremost the speaker of the House and the majority leader of the Senate.
Ample precedent for denying fast track was created in 2008, when Speaker Nancy Pelosi overrode TPA procedures for the Peru, Colombia, and Korea free trade agreements submitted by President George W. Bush. These agreements were only ratified—with modifications—several years later, when President Barack Obama occupied the White House.
If Democrats capture the Congress in November 2018, it’s entirely possible that the new speaker of the House—whether Nancy Pelosi or another figure—will declare that the US-Mexico Free Trade Agreement is not entitled to TPA procedures and timelines. The same could happen in the Senate, if the Democrats surprisingly capture a majority of seats. Conversely, if Republicans retain control of both the House and Senate, they could declare that Ambassador Lighthizer faithfully observed the TPA requirements.
The November 2018 election is important for many reasons—foremost public approval or disapproval of President Trump. But the US-Mexico Free Trade Agreement also hangs in the balance.