February 25, 2014
Field v. Clark: A Case for TPA

With the debate heating up in Congress over Trade Promotion Authority (TPA), members of the Tea Party have questioned its constitutionality claiming, "President Obama is seeking power the Constitution has assigned to Congress. Soon, he will formally ask Congress to surrender its constitutional authority and grant him ‘Fast Track' Trade Promotion Authority;"1 and unfortunately, they are not the only ones to believe this.

However, this statement couldn't be further from the truth, as TPA is constitutional because of an 1892 Supreme Court decision.

The Bipartisan Congressional Trade Priorities Act of 2014, a recently introduced bill to modernize TPA, does not grant any additional powers to the President; it simply guides him on how to implement the authority Congress is exercising. And this is not speculation by overwrought supporters of TPA. This question has been litigated all the way to the Supreme Court in 1892 in the Field v. Clark ruling.

This court case questioned the validity of the McKinley Tariff Act of 1890, which gave the President the power to suspend the provisions of an act relating to the duty free introduction of certain goods like sugar in the United States.

The plaintiff in this case argued that the 1890 Act was unconstitutional because it delegated to the President both legislative and treaty-making powers, exactly what anti-TPA members of Congress are trying to argue today.

The Supreme Court recognized that "… Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."2

However, the Court concluded that in this case there was no delegation of power since "what the President was required to do was simply in execution of the act of Congress. It was not making of the law."3 (emphasis added.)

Indeed, the exact wording of the 1890 Act stated that "with a view to secure reciprocal trade with countries, […] the President […] shall have the power, and it shall be his duty, to suspend, by proclamation to that effect, the provisions of this act relation to the free introduction of such sugar …."4

Therefore, the McKinley Tariff Act did not invest the President with the power of legislation; legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency.

Thus, what the Supreme Court clearly stated is that "the legislature cannot delegate its power to make a law but it can make a law to delegate a power to determine some facts or state of things upon which the law makes, or intends to make, its own action depend."5

The TPA bill falls under this conclusion, as it delegates power to the President not to make law, but to execute the act of Congress: "whenever the President determines that one or more existing duties […] are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, priorities and objectives of this Act will be promoted, thereby the President may enter into trade agreements."6 (emphasis added.)

In short, the TPA bill does not give the President the power to make law; it simply allows the President to take action in order to support objectives listed by Congress in the bill, such as obtaining "more open, equitable, and reciprocal market access" or ensuring "that trade and environmental policies are mutually supportive."7

Congress is still the legislator in this case, especially since it will vote for or against any trade agreements negotiated by the President.

So, this is one anti-TPA argument we can assign to the trash heap. The TPA bill is not unconstitutional because it does not give any legislative power to the President. Congress is still in charge of deciding what can be negotiated or not and under what circumstances.

1 Tea Party Command Center, "URGENT ACTION REQUESTED: No Fast Track for Obama's Next Power Grab!!", http://goo.gl/F8S7Xl  
2 U.S. Supreme Court, "Field v. Clark", 143 U.S. 649 (1892).
3 U.S. Supreme Court, Ibid.
4 U.S. Supreme Court, Ibid.
5 U.S. Supreme Court, Ibid.
6 Congress of the U.S., "Bipartisan Congressional Trade Priorities Act of 2014'', Section 3, (1), p. 35.
7 Congress of the U.S., Ibid, Section 2 (a), p. 2.
By Bill Reinsch and Sophie Bolla

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