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Aubin: Capitalism Trumps Constitution Under TPP

The Trans Pacific Partnership was recently released in its entirety by the US Government.
The Trans Pacific Partnership was recently released in its entirety by the US Government.

Editor’s note: The following op/ed piece follows on an earlier commentary posted to The Providence Journal’s website Oct. 17:

Since my recent Op-Ed posted to the Providence Journal, the Trans Pacific Partnership TPP has been released in its entirety and there will be many more negative issues popping up.  Can you imagine our president being involved in secret negotiations with corporations on a “treaty” he knows will be unacceptable to American people?

The US Constitution says that treaties need a 2/3 vote majority in the US Senate (with the House having no role).  However, the political elite wants to pass the TPP through Congress as a law, not a treaty.  Laws need only a majority of the Senate plus a majority of the House, which is easier than getting 2/3 of the Senate.  Because it’s easier to pass things as laws, NAFTA and other trade agreements were passed through Congress as laws and not as treaties.  So this way, TPP needs only 50 votes in the Senate to pass.  Because TPP’s “fast track” process bans filibusters, TPP can be passed with only 50 votes in the Senate plus the vice president, who is sure to vote for it.  The details of the “treaty” are exactly why there was so much secrecy as this was negotiated behind closed doors.  All one needs to do is research the consequences of the treaty on other countries to appreciate the destructiveness of this “anti-trade” agreement.

This act, coupled with the procedure allowing corporations to sue the government in private tribunals could and should be challenged in the US courts.  As explained in my Op-Ed, this treaty (as I refer to it) circumvents US law.

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The courts have not dealt with this as an unconstitutional issue and we know if it went to the [Supreme Court Chief Justice John] Roberts’ court and was heard, the right-wing Supreme Court would rule against it being unconstitutional since they have ruled in favor of capitalism rather than justice for so long. However, the Supreme Court refused to hear the case, which may open the door for a hearing from a more liberal court, assuming a democratic president will preside and replace the aging Supreme Court members.

In the meantime, the Eleventh Circuit Court of Appeals and the Supreme Court have made typical corporate friendly court rulings regarding the case.  Through legal maneuvering, they have refused to deal with the case and thus are allowing corporate interests to force a treaty that has proven to be destructive to countries involved:

“On appeal, the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit), while agreeing that appellants had standing, held that the issue of whether an international commercial agreement such as the NAFTA is a treaty that must be approved by two-thirds of the Senate was a non-justiciable political question.28 The court dismissed the appeal and remanded to the district court with instructions to vacate. The Supreme Court denied certiorari in the case.29” ~ page 5 of the Congressional Research Service’s Report, “Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than Treaties.”

In my opinion, this denial of certiorari by the Supreme Court and consequent dismissal of the appeal, coupled the Eleventh Circuit remanding the case back to the district court with instructions to vacate, was a move by the courts to essentially and effectively protect corporate interests while burying the case against judicial oversight.  It defies logic that any agreement being clearly diametrically opposed to provisions of the Constitution could be deemed constitutional.  How convenient for the courts to claim it is outside of their expertise.  How much expertise is needed to understand the United States will lose it sovereignty to foreign corporate financial interests ruled by tribunals.  This could only happen in a democratic, capitalistic nation where capitalism is destroying democracy.

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Everett S. Aubin of Cranston is a member of the Rhode Island Coalition to Defend Human and Civil

Rights.