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Obama Still Needs Congress

“Sure, economists disagree among themselves about a number of public policy issues, but not about the desirability of free trade,” Cato’s Daniel Griswold wrote in 2009. Griswold was remarking on a survey of economists that gave further credence to the existence of a solid consensus on the benefits of free trade. That consensus, along with basic principles of economic liberty, has buttressed conservative and libertarian support to the point where the right is broadly pro-trade.

The left isn’t, in part because unions support protectionist trade barriers and liberals can’t resist the chance to tax something. That puts President Obama in a bind: he’s somewhere between congressional Democrats and Republicans on trade, so he wants a new trade deal but doesn’t want it subjected to Republican amendments or a Democratic veto. What he wants, then, is Trade Promotion Authority, also known as fast-track powers to strike a trade deal that would be ratified by Congress but not subject to amendment.

In this, he is obviously dependent on Republicans, since they are more likely to want a trade deal with either our European or Pacific allies. But supporting the president’s trade authority isn’t the same thing as supporting free trade. Normally, Obama would appear to have the upper hand: the more serious the reservations Democrats have about his trade plans, the more beneficial Republicans might see such a trade deal. In that, divided government and the two parties’ gap in support for trade would seem to work in Obama’s favor. But what if Democrats and Republicans both have the same concerns?

That is where the president has found himself on the issue as of late, and it’s a mostly ignored but somewhat fascinating consequence of Obama’s obsession with usurping Congress’s authority. At the Weekly Standard, Irwin Stelzer explains:

Start with the particular president who is requesting this authority. He is no George W. Bush, to whom Congress granted such authority. President Obama has made it clear that he will enforce those parts of any legislation or treaty that suit him, de facto amend legislation without seeking congressional approval, and write regulations that order nonenforcement of laws he does not like. Congress refused to pass his Dream Act, so he ordered the authorities to treat illegal aliens as if it had; enforcement of Obamacare’s employer mandate at the date specified in the law became inconvenient, so he unilaterally postponed it; he has decided not to enforce the federal law against the sale of marijuana. There’s more, but you get the idea.

It is therefore not unreasonable to suppose that a provision in one of these trade pacts that benefits some industry or company that later fails to toe the presidential line or pay financial obeisance to Democratic campaign committees will disappear in a haze of bureaucratic rulings. In short, whatever the theoretical benefits of free trade, they must be weighed against increasing this president’s ability to exercise even more extralegal power over American businesses. One example: The Asia deal might include a concession from Japan to ease imports of made-in-America vehicles. It is not beyond imagining that the president will interpret that to apply only to the green vehicles of which he is so fond.

The discussion about the president’s plans to announce in his State of the Union address that he will continue taking executive actions in lieu of recognizing the existence of Congress has, appropriately, centered on the legality of the proposed actions. That is, can the president do that?

Another interesting question, and one raised by Stelzer’s piece, is: even if the president can take such action, should he? We often speak about the president’s executive actions as if the only downside to them is if they get overturned later on by the courts. But the trade conundrum in which the president finds himself suggests there’s another possible downside: neither party trusts him to follow the law.

This is a damaging assessment, and it is one that is generally independent of public opinion. And that is potentially more of an obstacle to Obama anyway. He is no longer running for reelection, so public support only gets him so far. And there are only so many actions the president can take on his own. At yesterday’s White House briefing, Jay Carney said the president would work with Congress where he can, and do the rest on his own: “this is not an either-or proposition. It’s a both-and.” Congress, Democrats and Republicans alike, don’t seem to agree.


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