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I like to cite liberals and progressives to support conservative/libertarian ideas.  It is a bit like placing a hostile witness on the stand and getting him or her to admit something helpful to my case.

So when I found this little gem from progressive darling Senator Elizabeth Warren (D-MA) on the super evil arbitration clause most likely in the Trans-Pacific Partnership (see below – it is also reported that members of Congress have had a hard item even seeing the text of the TPP) I had to cheer (and I don’t cheer for Elizabeth Warren very often):

One strong hint is buried in the fine print of the closely guarded draft. The provision, an increasingly common feature of trade agreements, is called “Investor-State Dispute Settlement,” or ISDS. The name may sound mild, but don’t be fooled. Agreeing to ISDS in this enormous new treaty would tilt the playing field in the United States further in favor of big multinational corporations. Worse, it would undermine U.S. sovereignty.

So what is ISDS?  What this blogger warned you about years ago:  Another sovereignty killing trade deal.  Senator Warren explains it well and did so on C-SPAN Thursday (my kids were wondering why I was cheering the liberal just before I heard Wisconsin Governor Scott Walker at CPAC!) in special order speech time.

ISDS would allow foreign companies to challenge U.S. laws — and potentially to pick up huge payouts from taxpayers — without ever stepping foot in a U.S. court. Here’s how it would work. Imagine that the United States bans a toxic chemical that is often added to gasoline because of its health and environmental consequences. If a foreign company that makes the toxic chemical opposes the law, it would normally have to challenge it in a U.S. court. But with ISDS, the company could skip the U.S. courts and go before an international panel of arbitrators. If the company won, the ruling couldn’t be challenged in U.S. courts, and the arbitration panel could require American taxpayers to cough up millions — and even billions — of dollars in damages.

And it gets worse.  (Of course this is unconstitutional – you cannot bind the US to pay a foreign court – that violates both Article III and the Eleventh Amendment [The sovereign immunity amendment that prevents states from being sued in Federal court except for civil rights questions] but who follows the Constitution in DC these days other than Rep. Dave Brat!  Well a few do try.)  The judges for this will be professional arbitrators:  Maybe senior corporate lawyers who will have an incentive to curry favor with future clients!

Here’s Warren’s case on how these deals hurt sovereignty in smaller nations:

Recent cases include a French company that sued Egypt because Egypt raised its minimum wage, a Swedish company that sued Germany because Germany decided to phase out nuclear power after Japan’s Fukushima disaster, and a Dutch company that sued the Czech Republic because the Czechs didn’t bail out a bank that the company partially owned. U.S. corporations have also gotten in on the action: Philip Morris is trying to use ISDS to stop Uruguay from implementing new tobacco regulations intended to cut smoking rates.

It’s ridiculous.  And this trade deal is all being done in secret by Obama Administration negotiators:

And our negotiators, who refuse to share the text of the TPP publicly, assure us that it will include a bigger, better version of ISDS that will protect our ability to regulate in the public interest. But with the number of ISDS cases exploding and more and more multinational corporations headquartered abroad, it is only a matter of time before such a challenge does serious damage here. Replacing the U.S. legal system with a complex and unnecessary alternative — on the assumption that nothing could possibly go wrong — seems like a really bad idea.

So Senator Warren is right.  For today.  (I’m sure she’ll be wrong again tomorrow or next week.)  But also note this story about Rep. Doggett of Texas, another Democrat who says he has actually had a hard time even reviewing the TPP text (cite is above):

According to the letter, a USTR staffer told Doggett’s chief of staff over the phone that the congressman would not be permitted to view an unredacted copy of the trade texts. However, the staffer did say that Doggett could take notes, which members of Congress had reportedly been forbidden from doing previously.

The letter also claimed that USTR denied requests from Doggett to review the texts privately, to bring along his chief of staff (who has a top secret security clearance) and to see text showing the positions of involved countries on unresolved issues. In addition, USTR reportedly told Doggett that it was unclear whether the office could provide documents about how the U.S. position has changed on contentious issues like food safety and intellectual property.

What?  A member of Congress cannot have copy or even take notes or have his Chief of Staff accompany him?  To review an agreement binding on the USA?  I would simply say:  NO.

Constitutionalists need to rally behind keeping this disaster out of our law.  I might get a chance to see Rep. Brat at his breakfast March 10 and if so I want to ask him if he’ll raise this issue among conservatives and libertarians.


About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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