Fast Track/TPP: The Death of National Sovereignty, State Sovereignty, Separation of Powers, and Democracy

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Yves here Joe Firestone is really on a roll…

By Joe Firestone, Ph.D., Managing Director, CEO of the Knowledge Management Consortium International (KMCI), and Director of KMCI’s CKIM Certificate program. He taught political science as the graduate and undergraduate level and blogs regularly at Corrente, Firedoglake and New Economic Perspectives. Originally published at Corrente

Most of the critical attention given to the Fast Track Trade Agreement legislation and to the associated Trans-Pacific Partnership (TPP) Congressional – Executive Agreement on mainstream corporate media and by politicians and establishment interest groups interacting with them in the beltway echo chamber, has focused on the likely or possible economic impacts of these. But relatively little attention has focused on sovereignty, constitutional separation of powers, or democracy impacts, which however are being covered increasingly well in alternative social media. See here, here, here, and here.

In hopes of breaking through this fragmentation by type of media of the debate over the TPP, I’ll focus this post only on governance impacts and try to make the case, that this so-called trade agreement, if passed and implemented would create profound governance changes in the United States without benefit of the constitutional amendments that would normally be required to accomplish such changes. I’ll also make the case that the governance impacts destroy national sovereignty, state sovereignty, separation of powers, and democracy.

Governance Impacts

The anti-democratic fast track process that gives Representatives and Senators no space to represent the range of people electing them. This process provides no room for debate of the TPP that includes the public and severely restricts Congressional debate.

It also incorporates secrecy of the TPP drafts, hiding them from the public and making it an impossible burden for Congresspeople to evaluate them and to solicit the views of their constituencies about them. It also then provides for keeping the proposed or actual agreement secret so that the American people can’t even know what the law is that may result in international levies of many billions of dollars upon them, for four years after the TPP is either passed or defeated.

Of course, Congress can simply take back the policy space that would be taken from them by Fast Track by defeating it, letting the Executive know in no uncertain terms that the sense of Congress is that Fast Track is an improper device for getting around Congress’s constitutional role in reviewing and giving its informed consent to Congressional – Executive Agreements, and that Fast Track proposals from the Executive Branch preceding trade deals will from then on be dead on arrival.

The separation of powers demands that Congress play its full constitutional role in such agreements and that includes its ability to amend and reconstruct them in a manner that reflects the will of Congress and the people it represents, and not just the will of the President and the leaders of foreign nations. That means there must be consideration by Congress of a number of alternatives to the proposed agreement and not just a consideration of acceptance or rejection of the President’s formulation. So, to restore traditional constitutional governance in the area of negotiating Congressional – Executive Agreements, breached most notably in the case of NAFTA and so-called “free trade” agreements since then, Fast Track must be defeated and forbidden by Congress from future consideration through establishing new Congressional rules prohibiting representatives from introducing such proposals.

Preserving the range of choice the Treasury Department now has to fund Congressional deficit spending appropriations. Right now, Treasury funds deficit spending overwhelmingly by issuing debt subject to the limit. However, it has a range of other options (see the Postscript) for accomplishing this useful in overcoming debt ceiling crises created by an uncooperative House of Congress, or for the purpose of ceasing to issue debt at all in funding deficits.

The TPP could infringe on the authority of Treasury to use these methods because it could, depending on the rulings of Investor-State Dispute Settlement (ISDS) tribunals, potentially prevent the Treasury from replacing the practice of issuing Treasury debt with other funding methods. In combination with a debt ceiling crisis such rulings could prevent the Treasury from spending mandated Congressional appropriations, forcing a constitutional crisis in which the President might have to invoke the 14th amendment and rely on the Supreme Court to rule the debt ceiling legislation unconstitutional. This is just one more way in which the TPP could infringe on the sovereignty of the Federal Government.

Preventing the Federal Reserve from using negative interest rate policies if it chooses to do so. ISDS tribunals could cause this problem in response to an ISDS suit citing expectations of lost profits arising from negative interest rates on Treasury securities. The Fed has never used that tool of monetary policy in the past. But that doesn’t mean it won’t want to in the future.

if the TPP is passed, however, then its freedom of action is compromised by providing ISDS tribunals with the authority to award lost profits to the corporations that might lose money if the Fed made this policy move. In effect, the Fed would need an implicit by your leave from the corporations and the ISDS panels to pursue such a policy.

In fact, this point may easily be generalized. Every action of the central banks in every nation costs some corporation money and creates gains for other corporations. Of course, the corporations who gain will just accept their good luck, while among the corporations that lose, some will go to the ISDS tribunals because, under the TPP, they can.

Forcing the TPP signator nations to bail out insolvent banks through ISDS settlements. The US and other nations now have the choice of bailing out insolvent banks or allowing them to fail, but there is at least one case where an investor in a bank has been awarded damages from the Czech Republic by an ISDS panel, because it lost its investment in a bank that was failing, was declared insolvent, and then was taken over by a sovereign government signator to a free trade deal.

So, we know that ISDS tribunals can decide that way and restrict the policy space of sovereign governments to do anything but bail out investors in failed banks. How do we suppose the American public including, of course, tea party activists will react to such an infringement on sovereignty, if the next time there’s a great financial crisis, the President or the Fed says that they can’t refuse to bail out the big banks because multinational investors in them are likely to win a massive court case against the US if they do let those banks fail and then take them over?

Turning over the legislative power of the Federal government to the ISDS panels and the multinational corporations buying their loyalty.

Of course, the legislative power turned over to the ISDS tribunals isn’t the positive power to pass laws. But it is the power to paralyze legislative action by future Congresses that might reduce corporate “expectations of profits,” and it is also the power to prevent Congress from even considering a whole range of solutions to the many serious problems of the United States that would work, but that Congress sees as ruled out by past or likely ISDS tribunal decisions.

Much of the power to legislate lies in the power to block legislation and to direct legislation away from certain alternatives. It is these powers that the TPP would be able to impose in undermining the sovereignty of national governments signing the TPP including the US government.

Since the TPP provides these negative legislative powers to the ISDS tribunals which would direct and constrain the positive legislative powers of national legislatures, the ISDS tribunals fuse legislative and judicial functions, breaching the separation of powers guaranteed by the US and other constitutions. Also, this fusion is unconstrained because it is legislative authority that could be applied in almost any area a government decides to legislate about, since multinational corporations or multinational corporate investors may be involved in, and may find, that their “expectations of profits” are impacted by any new legislation in any area.

Indeed, one has to ask the important question, of whether, under the TPP and the standard of impacting “expectations of profits” of multinationals, there is, operationally, any area of government activity in which new legislation by a local, state, or national government would not impact the expectations of any number of corporations, some favorably, and others unfavorably? If not, then isn’t it true that governments can expect to have to cope with ISDS actions, in connection with any legislation they pass, and any rule change they make? And isn’t it also true that the ISDS provisions in the TPP are in fact a grant of exclusive authority to profit making corporations in comparison to all other types of social institutions to review and veto legislation by democratically elected legislative bodies, countering popular sovereignty, with multinational corporate sovereignty?

Destroying US Federalism. Amendment 10 of the US Constitution says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That is, the power to impose fines on the States, or local governments, formed as sub-divisions within States, due to laws and regulations passed by States in pursuit of the general welfare of their citizens, isn’t explicitly granted to the Federal government by the Constitution. So, how can the Federal government delegate a power it does not have under the Constitution to the ISDS tribunals by signing the TPP?

Treaties are the law of the land, and they trump previously passed legislation. But, first, according to the Constitution a Congressional – Executive Agreement is not a treaty. And second, even if it were, it would not trump the Constitution, which is the supreme law of the land. So, Federalism, as expressed in Amendment 10, means that the states of the union have a limited sphere of state sovereignty that cannot be breached by either the Federal government, or by treaties or international agreements concluded by it.

And that sphere of state sovereignty is precisely in the area of providing for the general welfare of its citizens. If a state in the US decides, for example, that the Federal minimum wage isn’t high enough for the general welfare of its citizens, it is free, right now, to pass a minimum wage at any level exceeding the Federal minimum that it thinks is desirable. Multinational corporations have nothing to say about this in any tribunal, but under the TPP they could sue the State for lost profits and collect damages.

So, if enacted, the TPP would violate Federalism, state sovereignty, and therefore the Constitution of the United States, in a way that the Federal Government cannot now do. It is clearly an unconstitutional treaty, which the United States has no right to conclude.

Defeating the requirement, fundamental to democracy and popular sovereignty, of having the consent of the governed. Within the TPP, “investment” is defined so broadly that it applies to any asset that is either owned or controlled and therefore to any new regulation that may be passed by any democratic government to achieve normative standards such as “the general welfare,” “public interest,” or “the public purpose,” placing chains on all democratic governments and defeating the requirement of needing to get the consent of the governed.

Under the TPP, governments will need only to pass legislation that can pass the scrutiny of multinational corporations looking to whether their “expectations of profits” from their assets are lessened, along with the ISDS tribunals that will serve them and compensate them for any expectations of losses due to legislation. The consent of the governed and their democratically elected governments will be irrelevant.

Subordinating national sovereignty to ISDS bodies external to the United States and other proposed signators by failing to provide a clear legal provision allowing nations to regulate multinational corporations and their investments at all levels of government for the general welfare, or the public purpose, that would not be subject to the interpretations of ISDS tribunals not accountable to the nations signing the treaties or to their citizens.

The Preamble of the Constitution of the United States states the purposes sought and says:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

and in Article 1, Section 8 gives Congress the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . .

So, it is for the purposes in the Preamble that the power to regulate commerce by treaty is granted to the Congress. Note that this enumerated legislative power is explicitly granted for fulfilling the purposes stated in the Preamble. There is no purpose there that provides for “expectations of profits” of multinational corporations to function as a higher purpose than the general welfare of the citizens of the United States or the States of the Union. Nor is their any such purpose stated in any other part of the Constitution granting powers to Congress.

Nor is it obvious that the dominance of that purpose is part of the “general welfare,” or if part, is more important than other components of the general welfare and has priority over all of them. Nor is there anything in the Constitution suggesting that whether a US or State law is consistent with pursuit of the general welfare should be determined by quasi-judicial tribunals external to the United States and unaccountable to its people or its legislatures, or to any other tribunals external to nations and not subject to the consent of the governed.

In fact, Article 1, Section 8, also provides Congress with the power “. . . to constitute tribunals inferior to the Supreme Court,” but it does not provide the power to establish tribunals super-ordinate to the Supreme Court whose decisions would bind the nation and its citizens to paying fines to compensate multinational entities for the consequences of legislation passed by our governments. But the TPP and its ISDS mechanism would do that. So, this “free trade” treaty violates both the Constitution of the United States and also its national sovereignty.


The likely impact of the TPP on the economy, working people, wages, economic inequality, US manufacturing, and unemployment is likely to be severe and to exacerbate the trends toward inquality we see all around us. Anyone who thinks that the TPP will create jobs here in the face of all previous experience with much more limited “trade” deals is highly credulous or blinded by the money flowing from those interests who are licking their chops over the opportunities for excessive profits they believe the deal will bring them.

Signing the TPP would be terrible if these awful impacts were the only ones. However, the governance impacts I’ve described in these posts will create more fundamental damages than these for signators, including the United States.

Ellen Brown has called the TPP “the death of the Republic.” It certainly is that. But, I think I’ve shown that it is the death of National Sovereignty, State Sovereignty, Separation of Powers, and Democracy, as well. These impacts on governance and politics are even more important, I believe, than its economic ones, since it from these that our benefits, both economic and non-economic flow.

The elevation of the principle of “expectation of profits” above all other principles including the principles of “public purpose,” “consent of the governed,” “the general welfare,” and “separation of powers,” is tantamount to the overthrow of democracy, preserving its form in national level elections, but emptying its elections of meaningful content in mandating change and in conferring legitimacy on national authorities. I’ve said previously that the rule of the TPP, even if passed over the mushrooming opposition from all segments of American society except the uncritical globalists, will never be viewed as legitimate in the United States and will also always be viewed as tyranny for as long as we live under it. This problem will become increasingly severe the larger, more frequent, and more outrageous ISDS awards defending the “expectations of profits” of multinational become.

That makes those who want to pass the TPP guilty of conspiracy to create tyrannical rule of the international few over the people of the United States and other TPP member nations. Eventually, I believe that a vote for the TPP will be viewed as vote to betray the Constitution and a violation of the oath of office of any who vote that way.

How can there be any other outcome when an action taken in office destroys National Sovereignty, State Sovereignty, Separation of Powers, and Democracy with a single vote.

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  1. John Candlish

    Perhaps the Pope can intermediate for the ISDS, just as in the age of Feudalism.

    Otherwise, from which power will these new TPP courtesans derive their indulgencies? From credit alone without regard to exigencies?

    How will these modern corporate sovereigns maintain order amongst themselves without raising armies? After all, indugencies have lost their efficacy in Ukraine, to the situation on the ground.

    Noting also of course the parallel between current Ukrainian and US American democracy.

      1. John Candlish

        An interesting diversion for sure, but …

        I had more wanted to point out that the ISDS is a mechanism for price fixing in the futures markets.

        The ‘make these bad bets good again’ aspect to the TPP is farcical. There aren’t enough bagholders in the Universe to make that work.

        Sadly, the erosion of Sovereignty is a trickier, more achievable goal.

  2. Carla

    Thank you, Joe Firestone! This will be very helpful as I prepare to address my local city council Monday evening asking them to pass a resolution opposing Fast Track and the TPP.

    Others may want to consider doing the same. Here’s an article about this:

    Municipalities that have passed anti-Fast Track resolutions include NYC, Pittsburgh, the California cities of San Francisco, Fort Bragg, Richmond, and Berkeley; Madison, WI, and the Washington cities of Bellingham and Seattle. Also, at least one county in NY state and one in Wisconsin have passed resolutions.

    The New York resolution, passed 4/28/15, declares the City a “TPP-Free Zone.”

    Of course, this recent NC post is also very relevant:

    1. Joe Firestone (LetsGetitDone)

      You’re welcome Carla. Local Governments all over the country taking action is something Congresspeople will view as part of a powerful movement. so, actions like that will begin to counter the President’s full course press to get this passed!

  3. Norman

    I realize I’m late to the game, (it’s almost over), but just who devised this “trade monstrosity”? Further, why is “O” pushing it? Someone have a gun to his head, or is he just out to screw the people for some reason? Selling out the U.S. for glory or because he can, along with all the other sycophants masquerading as servants of the people, begs as to why they want to destroy the American way of life? Slavery, perhaps it’s his view of payback, but it sure is going to be one colossal C-F.

    1. Steve


      See the comment thread on Yves’ May 1 post about Obama bribing Abe to support TPP by unleashing the Japanese military. Particularly Plutoniumkun and Stephen’s comments.

    2. Joe Firestone (LetsGetitDone)

      Corporate interests have been building this on NAFTA for many years now. It’s central tI the neoliberal gospel that the market should handle most things and the government should be changed up so it can do nothing but serve big business and allow it to loot people all over the world.

    3. chitownrdh

      This is the central question, why? I think I read a comment here that said perhaps the promise to the Pacific Rim countries for joining the TPP would be military protection? This makes some sense to me because I can’t think of why our leaders would go for this agreement. It boggles my mind. All sorts of dangerous words come to mind while thinking about this deal, I am not willing to type them.

      1. Otter

        Promises, and threats, are being made not to countries but to persons.

        We really must revive the term “Quisling” … more modern than “Benedict Arnold”,
        less so than “CIA asset”, more accurate than either.

        1. different clue

          I read there used to be a term . . . ” White Man’s Indian” . . . for people designated to sign unequal treaties of convenience with a growing United States. I don’t know how current or well known that term is anymore. If it is still common semi-knowledge, or can easily be made so again, perhaps it could transfer to its modern equivalent . . . “Rich Man’s American” or “Davos Man’s American” or “Bilderberg Man’s American” or some such epithet which can get the point across . . . if any epithet can.

      2. AQ

        So if war breaks out between Australia and Japan and Australia bombs Japan, does Sony or Toyota get to sue Australia over lost profits, even if they can profits due to the war machine itself? Or maybe they’ll just wait until the war is over.

        Wasn’t there some piece about WWI that war could never break out because of how integrated everyone was with global trade and such? Imagine if companies could’ve added their individual bits to reparations. WWII war crimes? Hell, nothing compared to corporate profit crimes even if some companies made out like bandits during and after the war.

        This whole thing is mind-blowing. Unfortunately, it’s also not unexpected. They must have it all. It almost feels like we have to take it all away from them and throw away the system, because it can never be enough for them until there is only one. (Or so the Highlander would have us believe.) Scary, scary, scary. Does a big grab like this make it worse because it will be over faster or is the slow grind we’ve been going through worse because we believe that they’ll eventually have to see sense before the tipping points are reached? I’ll be honest, I don’t see them seeing sense anymore.

        1. AQ

          Sorry, I was just reading comments in today’s link WWII discussion, I thought I’d add: How about suing a government for ending a war? Or outlawing the use of a particular weapon?

          No, too extreme? Too absurd? No standing? Even though I’m joking, my mind is spinning with how one might go about it and whether or not it would conceivable (if it sounds utterly ridiculous) under something like TPP. Where exactly is the line?

            1. ambrit

              The big tell there would be when Blackwater, (or whatever it calls itself now,) moves its’ headquarters to the Channel Islands, or The Cayman Islands. The idea of a Condottiere Band filibustering some small island nation, like what almost happened in the Seychelles back in 1981 becomes more feasible over time. With a secure “nation state” as a base of ‘operations,’ the TPP or TTIP legal like rent extractions can proceed apace. The big sick joke here is that nothing is now considered as too extreme, too absurd, or without standing if there is money to be made from it. The ‘original’ Robber Barons were, after all, the leaders of exactly this kind of small armed band, who, as fate would have it, preyed upon trade.

    4. Vatch

      One theory about Obama’s behavior that I find persuasive is the Prosperous Retirement Theory. Obama has seen how Bill and Hillary Clinton have “earned” tens of millions of dollars since Clinton retired from the Presidency. Bill Clinton has benefited from numerous lucrative speaking engagements, and they both have made a fortune from their books (which were probably ghost written). I suspect he also has some very high paying consulting gigs, but I’m not sure about that.

      By rewarding the giant corporations and ultra rich individuals now, Obama can expect to be rewarded with much higher speaking and consulting fees than he would otherwise get. He doesn’t work for the American people. He works for his future clients.

      1. Brooklin Bridge

        It was suggested that Obama has been persuaded that TPP is actually good for the country. I doubt it. Obama does believe in neoliberalism, but he isn’t that gullible as to the effects. Rather, I think you have covered the main reason – greed, taking care of #1, but I also think guilt plays into it. Much the way Rham calls the Democratic base “Fu*king retards”, most likely because he hates them for the wrong he, Rham, knows he has done to them (guilt), much in the same way, Obama is contemptuous of the American voter who put him into office and this guilt/hatred phenomenon makes him particularly open to anti-democratic, pro-corporate schemes such as the TPP.

        It’s get rich quick on our backs. We’re troublesome suckers and we deserve it.

        1. Steve

          @Brooklin Bridge

          Obama is an elitist. He only cares about the elite. I doubt he feels guilty about “the little people” because they don’t even enter into his equation except as means to an end. The only people who count are the elite

      2. Steve

        @ Vatch

        I agree Obama can look forward to the big payout after he leaves office but I don’t think money has ever been his big motivator, except as a token of his acceptance by the elite. Obama doesn’t even want adulation, but rather the approval of powerful people, whether they’re his law professors or Robert Rubin. He’s always “that impressive young man” whose real accomplishments are rather thin. Obama has the psychology of the boot licker. Politicians in general have to kiss ass. The difference is that Obama actually seems to enjoy it.

      3. jrs

        I think psychoanalyzing O is pointless really. I think he’s demonstrably evil by his policies. But anyone in that position would be forced to be? Maybe, I understand it’s systemic (don’t put your hope in Presidents), but just because the game itself is evil, doesn’t really contract that only an evil person would play that role in the system.

        1. Crazy Horse

          I concur that psychoanalyzing Obomber is pointless. After all, wasn’t he found on a beach in Hawaii stoned out of his mind and taken to the Malignant Overlords laboratories in Chicago where he received his cyborg implant? Being a somewhat Black man, he was then groomed for higher office awaiting the day when circumstances called for a Trojan horse candidate to diffuse the growing discontent brought on by 8 years of rule by Dick Cheney.

          1. ogee

            what does it mean that Obama is dick cheney’s cousin on his mother’s side?
            Decades of a bush/clintonian farce upon the people with cheney’s in the mix…. doing the “front man” shilling for those behind the curtain. How small is this world that the leaders of the “free” part of it come from 3 families.
            2016 elections……. a Clinton, a bush, and a paul in the third slot….. Wait… what decade is this? is anyone else having flashbacks> or are these nightmares of things to come? I can’t even tell anymore.

    5. two beers

      why is “O” pushing it?

      We can come up with all sorts of justifications and rationalizations for his behavior, but Occam’s Razor suggests it is because he is exactly what his policies imply he is: an authoritarian, right-wing, neo-liberal, neo-conservative. His policies are almost unanimously pro-police state, pro-corporate oligopoly, pro-war, anti-labor, and anti- environment. He does have some moderate social policies (although he is pro-drug war and pro-prison state), so I guess that makes him a left wing commie.

      The convolutions Obama fans (i.e liberals, progressives, Democrats, social issue voters) employ to avoid acknowledging that they were/are suckers demonstrate the effectiveness of cognitive dissonance as a tool for manipulating voters.

      For anyone paying attention and not emotionally tied to identity politics, it was obvious that Obama was a Trojan horse when as a Senator he voted for FISA after saying he would oppose it. He has followed this successful model ever since: mouth soothing words to the idiot liberals/progressives/Democrats/social issue voters, while implementing policies to screw them. And the more he screws ’em, the greater the cognitive dissonance, and the more the idiots love him!

      1. OpenThePodBayDoorsHAL

        Hear, hear. It’s been very painful for the “left” to be shown in action after action that a handsome young melanoderm community organizer could be such a status quo, Permanent War, expanded spying, Wall St apologizing, middle class destroying corporo-fascist. Most of the Left are still in complete denial, with formulations like “well he’s still better than the alternative” and “he wants to do good things but he’s blocked by Republicans”. He IS a Republican…no blocking required. Hilary will be four more years of the same ruse, oh, oh but she’s a woman and a grandmother, blah, blah, blah. She’s a completely corrupt war monger fascist backed by the likes of Rupert Murdoch, probably worse than Obomba.
        (LOL my first draft of this comment read “copro-phagic” but that seems a bit strong…)

    6. jrs

      It’s not over until the TPP itself is passed. Maybe not even then, but then your getting to the point where civil disobedience to the whole system becomes necessary (and it wouldn’t hurt now, but I’m talking no other alternative necessary).

      Fast Track if passed will be a huge setback though, it will make it much harder to stop the passage of the TPP itself.

      I prefer to think of O like a “black box”, that’s a software term, not a racial one. That we can’t know what goes on inside that “black box” of Obama’s psyche, what makes it tick, but we see the results and it’s really all we need to know about O. It doesn’t even add much to know the internal workings if we could. Why do the elites in general want to destroy the American way of life? Maybe because they have no loyalty to any country, their true country is countryless, they are the global elite, their virtual country is called Plutocracy.

    7. different clue

      Obama believes in this. He has believed in this sort of thing for years now. Also, he hopes to make hundreds of millions of dollars in rewards and thankyous after leaving office if he can get the ObamaTrade Pacts passed while he is in office. Even getting just Fast Track itself passed would get him at least a couple hundred extra million dollars in payoffs for teeing it up for the next President to sign.

      Fast Track really is the most likely place to kill ObamaTrade, because Fast Track is a laxative designed to make the TPP/TPIP pacts themselves pass through the legisfecal process liker exlax. So Fast Track itself is the best place to try constipating the House and the Senate, or at least one of those two.

  4. Tammy

    I know my comment is dangerous one in this forum but I’m just going to put it out there, hoping for understanding and because I’m here to learn.

    I don’t understand how anyone who supported the Occupy Wall Street movement can make a reasonable argument that the TPP will further progress our already “death of national sovereignty, state sovereignty, separation of powers, and democracy.”

    Here’s my reasoning: Joe Stiglitz has been speaking about the lack of public investment and dangerous of the enlarged growth of “rent seeking.” It’s very clear that what has enabled this rent seeking to become the magnitude it is today are technologies such as Apple, Facebook, and Google that were built on the entrepreneurship and investment in our public sector. These technologies, in my thinking, began what JS states are the “‘financial innovations’ [that] were designed to circumvent regulations, and actually lowered long-run economic performance. These financial innovations do not compare with real innovations like the transistor or the laser that increase our standard of living.”

    To be clear I’m not against technologies of the third wave of the Industrial Revolution. Moreover, I agree with Nicholas Carr’s position. What I’m asking is it honest to say when speaking about “death of national sovereignty, state sovereignty, separation of powers, and democracy” we are like the pot call the kettle black?

    1. NYPaul

      Tammy…..I’m a little confused, help me out if you don’t mind. Are you claiming that companies like Apple, Facebook, and Google are technologies? I’m of the opinion they are merely products, utilizing technologies in their design and manufacture. What am I missing?

      1. Carla

        Actually, as I understand it, Apple, Google and Facebook are Corporations, which used government-funded Research (paid for of course by the People) to develop their Products, which do the work of the New World Order to invade People’s Privacy and advance the interests of the Surveillance State and turn the People into Serfs who will labor to support the whims of the One Percent.

        1. Brooklin Bridge

          Exactly, and what, prey tell (from O’s pov), is wrong with that?? You don’t keep cattle because they make the grass grow…

          1. ambrit

            Oh, really? Carrying the cattle analogy forward, the present day human ‘cattle’ can be prodded into dropping large piles of ‘dung’ all over various urban landscapes. The ‘cattle herders’ also known as the Police State, can then point to the piles as reason for their existence. The ‘grass’ of expanded security paraphernalia production then grows luxurious. Shifting ground a little; after one has put lipstick on the pig, one can use the pigs’ squeal to justify more ‘pig herding.’ Thus, nothing at all goes to waste. More efficiency, don’tcha know.

      2. Tammy

        NYPaul – Yes I think my wording was corrected by your rephrasing. Still I don’t understand how utilizing the products of the said corporations isn’t rather hypocritical when I think about the OWS movement. I’m thinking these corporations evade similar taxations–tax havens–and regulations, crossing other nation-states sovereignty.

    2. Code Name D

      I’ll take a stab at it. It’s a fair question. Haven’t we already lost our democracy? Not quite.

      It helps if I contrast what we still have with what came before.

      During the colonial period, the mode of government was that of the rule by decree or proclamation. The king would literally speak the law into existence and what ever the king said was the law of the land. And it was then up to the king to interpret his intention. It was then up to his/her court to capture that intention and execute it through out the land.

      The main problem was its arbitrary nature. Even “good” rulers were still fallible human beings who had limited memory and an all too human limitation on how they could perceive the world around them. The result was a law that was often arbitrary, inconsistent, and even irrational. Even under the best of circumstances.

      The Founding Fathers of course didn’t deal with King George directly, but rather his written edicts and letters. George was frequently change his position and opinion almost randomly, but had little tolerance for skeptical position. But the founders had Gorege’s wishes recorded on paper, they could replay past edicts and document there changes.

      When it came time to create a new government, the founding fathers took the observations to heart and came up with the notion of the rule of law. We produced law through a democratic process of course, but overlooked is the manner in how that law was actually executed.

      When a law is created, the text of that law is published in written form, and that publication becomes the standard against which the law is interpreted and executed. The law can not be arbitrarily changed without first amending the record itself. The law, buy this very nature, is also public meaning that the people have access to the very law they are to be expected to adhere too. This is what is meant by “the rule of law” which might be better understood as the rule of the written law.

      It’s far from perfect of course. No one ever accused it of being so. It still has two important benefits. One, its no longer arbitrary, every one sees the same law and in the same language. Two, its public, all citizens have access to the law. Most states, cities, counties, and other jurisdiction even have their legal registers published on line.

      The notion of the rule of law is even on display with SCOTUS regarding the latest hearing over Obamacare. The question is weather the federal government is authorized to fund the state run exchanges managed by the states, while not doing so with the federal healthcare exchanges.

      The problem the plaintiffs are bringing up is that this aspect of policy is not included in the provision. In other words, the government subsidies are not included in the text of the law as published.

      The administration argues that it’s implied within the context of the law. That may or may not be so, but it’s also irrelevant. The court is free to discern the thinking of congress – but only from the context that can be drawn from the published law itself. The justices do not have the power to read congress mind and the whole point of the rule of law is to not pretend or demand that they can do so. There is nothing unconstitutional against the subsidies per say, but the fact that it is not provided for in the published law may be what gets it struck down.

      And this was a predictable inevitability. The wording of the ACA and how it was crafted was so tortured and clumsy. There really wasn’t a debate, but rather an organized brow-beating for force Democrats to get behind the law – or else. The changes needed to even make the law practical – to avoid scenarios such as this, couldn’t even be considered.

      The rule of law has now become the cornerstone of all western governments, both good and bad.

      Now we contrast this against the so called “free trade agreements” such as TPP, Nafta, GATT, and others. These are not about trade, but about reshaping our governing philosophy away from the rule of law and to the rule under contact. To be sure, we are not returning to the rule by decree. But it still replaces the rule of law with something else, the rule by entitlement.

      Rule under contract is not the law itself, but rather describes the means by which law is to be created through the process of litigation of some form. That makes it arbitrary. We can not pass a law and know what it will end up being or even if it will survive the arbitration process. And its only metric is the harm or benefit it brings to the property holder who has standing in the court. And the property holder always has the power to veto the law in part or in hole based on any real or imagined inconvenience visited onto the property holder.

      For example, if we pass a law saying you can not dump pollutants in the river, the polluter can challenge the law in arbitration and eventually annul the law based solely on how much money it would cost him to not dump the pollutants in the river. The purpose of the law isn’t even relevant to the arbitration.

      The rights and freedoms established by the Founding Fathers are to be considered to be absolute. By that I mean that all rights and freedoms are to be implied in all documents and contracts and applied retroactively. You can not sign a contract that converts your self into a slave, for example. Nor can you sign a contract that might compel you to surrender any of your freedoms of privileges, even if you fully consent to such a contract.

      An example of this application are anti-discrimination laws. As a shop owner, you do not have the right to refuse service to persons you deem undesirable. You must serve the public equally. The fact that the shop is your property dose not change this fact as the law of equality established in the constitution is superior.

      But the problem with neo-liberalism is that this view point no longer holds. Provisions held in the contract are superior to all other documents or concerns. Even the constitution itself. So long as the victim sign into the contract of their own free will. (This is why Libertarians are so fixated on “free will” all though what they call “free will” is not even coherent.)

      You are correct to observe that the TPP is just a continuation of an already existing pyridine. The rule of contract has been a growing problem for some time.

      And Obama is squarely and unapologetically under this line of thinking. When he was confronted with some of the provisions held by the ARMs or Adjustable Rate Mortgages that were straddling home owners with monthly payments some times as large as ten times the original agreement (making it impossible for them to pay and default a forgone conclusion), advocates wanted to annul these parts of the mortgages as unlawful. But Obama sides with the banks, even arguing that annulling the most egregious parts of the contract would lead to anarchy.

      1. Tammy

        But Obama sides with the banks, even arguing that annulling the most egregious parts of the contract would lead to anarchy.

        Thank you for your detailed reply. The point I’m attempting to make though is that Obama did support the OWS movement, a movement utilizing technologies that can resemble anarchy rather than democracy. I think it did resemble movements around the world, one being Arab Spring.

        1. ogee

          Obama DID NOT support the occupy movement.
          You must be confusing the standard meaning of the words in the English language for the “classified due to national security concerns”, “meanings” of words Obama uses to pretend he is supporting some popular movement.. This is pure political theatre. His words mean just what he says, no more no less. They don’t mean anything; in other words.
          This stripe of the political class, Obama/Clintonian rely on linguistic gymnastics which were really brought into the world by the Jesuits. casuistry and equivocation. Words are deployed for the purpose of propaganda.

        2. Joe Firestone (LetsGetitDone)

          Obama repressed the Occupy movement through the fusioN centers in which the FBI and the DHS collaborated Edith locals to end the protests! never think for a moment that he supported Occupy!

        3. Code Name D

          It is said that it is a poor craftsmen that blames his tools.

          “a movement utilizing technologies that can resemble anarchy rather than democracy. I think it did resemble movements around the world, one being Arab Spring,”

          This is not a coincidence. The Arab Spring arose in a very different world. They had to deal with a truly hostile government that would summarily pick up its leaders and disappear them through various means. This would include indefinite incarceration or simply being “disappeared”, to never be seen again. It is very hard to run a popular movement when your leaders keep disappearing like that.

          So they innovated a new solution that distributed authority as broadly as possible. Leadership through anonymity. No one was in charge, but the grope still benefited from the leadership of all – including its true leaders.

          But as bad as things are in the US. Things are not quite that bad yet. So in my opinion, the Occupy movement embraced an unnecessary fad without understanding its purpose. OWS also made another mistake. They never suspected there would be a snake in the garden. With such an open and unrestricted platform, it would be inevitable that agendas and egos would insert themselves, and like a virus, consume the movement. Some say it was the social justice warriors, and they may have a case. But I suspect there were many agendas and ideologies that invaded.

          My take away is that more skepticism is needed within the next movement. To accept nothing is true without sufficient evidence to support that claim, and to be strong enough to expel any ideology that fails the skeptical examination. The Lady Justice, while blind folded and carrying in one hand a set of scales to represent justice and equality, is also frequently represented with a sword in hand.

          While a sword that is slow to be drawn and quick to be sheathed shall be welded justly, let us not forget that it must still be drawn, and that it must still fall upon the foreheads of the wicked.

          My colleges speak truth here. Obama was never a supporter of OWS. Indeed, he never successfully echoed its intent or purpose. But still espoused the vary ideals that OWS opposed, even while attempting to praise its place in the world. I am told Obama is very intelligent, to which I must ask what good is intelligence, or even wisdom, if it knows not the powers of skepticism.

    3. different clue

      No. The ObamaTrade Pacts are themselves legally engineered to pass new Global Corporate Overlordship laws which set aside the national/state/regional/local laws we still have. The Free Trade Conspirators want these new private laws and private privileges because the public laws we still have and the private laws they don’t yet have stop them from doing Worse Things they really want to do but can’t quite yet do now.

      That’s why they want ObamaTrade so bad and that’s why ObamaTrade matters specifically. Anything which is good for THEM is bad for US, and it is important for US to keep THEM from getting it. Obama works for THEM against US so we have to work for US against Obama who works for THEM.

  5. V. Arnold

    Death seems the new byword of U.S. policy; be it social wellbeing, employment, jobs creation, health, retirement, or the ability of/for survival within the social order for day to day existence.
    We are fast approaching a norm in which a serf is looked upon with envy…
    The only death I seek is the death of fear; fear is a thief, do not let it steal from you…

    Don’t believe them, don’t fear them, don’t ask anything of them.
    Aleksandr Solzhenitsyn

    Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them.
    Frederick Douglass

  6. JTMcPhee

    Looking at the “vigor” with which Obama and his crew are shoving and forcing this monster toward us, one wonders if he is facing a personal carrot and stick: ” Nice family and kneecap you got there, fella. Be too bad if something happened to them. Remember you got a contract with us…”

    1. Pat

      You are kinder then I am. I’m of the belief that the payday he has been offered for this is massive. “Hey, Barack, you think Bill Clinton has done well since leaving the Presidency? Well we can make sure you make him look like a slacker with half as much work and effort. And we know how much you like besting the Clintons… And what a legacy!” (Yeah, I think he is delusional enough to believe that this piece of crap will be looked on as an accomplishment if only because the victors write history.)

      Frankly the last two Democratic presidents, and possibly the next one belong behind bars as far as I’m concerned. Not for any made up scandals, but for selling out the interests of every American who doesn’t “invest” for a living (and even a goodly portion of those who do).

    2. different clue

      No. I don’t feel it. And I am not having that excuse for Obama. He’s in it for the money and the hatred. His owners know that not everything can be guaranteed. The only coercion I can imagine his owners using is : get this done and we will pay you. Fail to get this done and we will fail to pay you.

      (Now, I can very easily imagine Mafiosobama threatening Kucinich’s life and his wife and kids’s lives on that
      “plane ride” he took Kucinich on.)

    3. ogee

      I think it is a much nicer form of coercion.
      Obama is a done deal. He will be wealthy for life. He will always have the legacy of being the first black president. His “fees” will always be there to be scooped up off any table he sees. He will always be comfortable.

      But his kids, and his kids kids… that is the question. These people in our political class yearn for aristocracy. They don’t just want to be some successful schmoe…. they want their kids to be elevated as well.
      Look at the “newbie” Clinton family….. Chelsea is a member of the council on foreign relations. That means a certain amount of respect and earning value for life.The council has been a front group for the establishment for almost 100 years now. Chelsea certainly doesn’t deserve any special privelige other than her birth. But now she is married to a wall st swindler, from a swindler family….and she has the gravitas of bing within “the circle of helpers” as it was called in its formation by the british roundtable group that created it in 1919 along with its british cousin, the royal institute of international affairs./ or “chatham house” as it is referred to in britian. These people lead the propaganda war for those that became neocons/neoliberals.
      Then look at ron paul…. he could never really be consistent in his criticism of the American body politic. And for his good graces, his son was given the “mantle” of support…. and lo and behold who may be a republican/libertarian contender for president…..rand….. The bushes .. well that road to aristocracy has been theirs since the days of George Herbert walker and Prescott bush…. the joining of two already blue-blood clans….. Our American establishment has long been the younger cousin of the british aristocracy. And everyone of new money, dreams of the days when their posterity will be old money.

  7. Jack King

    I know very little about TPP, but if they are using NAFTA as a model of why not to approve TPP, then I am skeptical. NAFTA does have some negatives. There has been some job loss as it has made it easier for US manufactures to locate across border. But companies have been moving from high costs states to right-to-work states and low tax states for years, as well as overseas. The benefits from NAFTA are legion. Lower prices to the consumer is a huge saving. Also exports to Canada and Mexico have exponentially increased from $142 billion to almost $600 billion thus having a very positive effect on domestic jobs. Food exports alone have increased 156%. Other than Firestone you would be hard pressed to find any legit economist who weighing the pros and cons is not strongly in favor of NAFTA.

    1. TedWa

      So much for promises.

      NAFTA produced a devastating one-two punch. For the first 10 years, the flood of US exports of corn, wheat, meat and other staples drove Mexican producer prices well below the costs of production.

      Mexico’s three million small-scale corn farmers saw prices for their crops fall 66 percent, largely because the United States increased corn exports by 400 percent, exporting at prices 19 percent below even US farmers’ costs of production. Call it the Age of Agricultural Dumping. ….

      And most telling: twenty years into NAFTA, 55 million Mexicans — about half the population — are estimated to be in poverty, many without secure access to food.

    2. Felix

      While the dollar numbers with NAFTA sound impressive this is one more example of corporate welfare. The rich get richer. How does NAFTA work? We outsource car manufacturing to Mexico and abandon Detroit. The people of Detroit continue to eat and have babies……the government has to finance that. So we just treat our natives as disposable and cut wages for a job that minorities did in Detroit for generations. We hire illegal aliens to do farm work in the US and undercut Mexican domestic farm products. Illegal aliens have sex, they have women, they have babies and Uncle Sam, the taxpayer picks up the tab. So yes the exports of food are cheap but they are subsidized by the the US taxpayers. How about instead of NAFTA which is impoverishing our workers we integrate with Mexico? We have the Mexican people (large swaths of Michoacan and northern Mexico are empty) so why not use the resources of Mexico to help all of us and not just Carlos Slim? How about getting the UAW down there to strike the auto plants and instituting a fair wage for the auto workers down there? How about demanding the car makers build new lines in Detroit. Why do we have to socialize the costs and privatize the profits? How about demanding Union representation in these agreements? I would think long and hard about moving a pickup assembly line to Puebla from Detroit or a car line from Mississippi to Mexico (Toyota) if the UAW was on my back. And I was in the UAW (Ford, Mahwah, New Jersey)……..’65 Mustang……..long gone and I will attest the workmanship was half assed……we were well paid and partying and sleeping at work was more important than car building. But we were the Viet Nam generation……another leadership disaster.

      1. Jack King

        Detroit has been under attack for decades because of foreign imported automobiles that the American public prefers because of superior quality at a lower price. In a competitive environment, only the strong survive. If you don’t adjust to the competition, you die. So what is it that you would prefer? One big monopolistic auto company in Detroit producing everything? The heavily unionized rust belt has been bleeding jobs for years….long before NAFTA.

        1. Calgacus

          In a competitive environment, only the strong survive. If you don’t adjust to the competition, you die.

          That is the very opposite of TPP etc, which is a feudal idea. Corporations would be strong under TPP because they would have their profits guaranteed by the government at public expense.

          1. Jack King

            “…they would have their profits guaranteed by the government at public expense.”

            I was commenting on NAFTA. I know very little about TPP except that the critics seemed to be comparing it to NAFTA. If we are guaranteeing the profits of private companies (like Solyndra), I would be against it.

            1. bob

              You also know little about NAFTA. Solyndra? Let me guess, you get all your news from the non-mainstream, highest rated “news” channel?

              1. Jack King

                Nope….I was dumbing down…..using an example that even you would understand.

                1. bob

                  Yeah, well…I’m rubber, and you’re glue..
                  You’re completely outclassed. The defense of the “indoctrinated”.

        2. bob

          “American public prefers because of superior quality at a lower price”

          Decreed, by the king himself! Prove any of the three assumptions in that liturgy of the neo-liberal.

          1. Jack King

            Prove?! Your continued vapid questioning is tiring. But I hesitatingly probe further….do you really believe that the consumer does not prefer high quality at a lower price???

            1. bob

              If your statement is true, than it follows that there would be no American cars on the road.

              I see them everyday. Other people probably do to. Therefore, you are wrong, Vapid too.

              lacking or having lost life, sharpness, or flavor; insipid; flat:

              Every single one of your memes and talking points ran out of any basis in fact 20 years ago, if it ever really applied. But here you are, fighting the good fight for the oligarchy and wall st.

              1. Jack King

                You, of course, know exactly what I am talking about. US manufacturers greatly improved the quality of their product. They had to or they would have died. But if the competition wasn’t there they would have continued to produce a marginal product. Good old free enterprise….the strongest survive.

                So Bob….did you really have to look up the word “vapid”? The reason I used it is because there is very little meat to your comments. In fact most of your remarks are glutted with insults. But that’s OK. When one resorts to insults instead of logic, I know I’ve won.

    3. Joe Firestone (LetsGetitDone)

      Thanks for the compliment, since I’m a writer on economics and a political scientist rather than an economist. However, there are at least three highly legitimate economists that immediately come to mind who oppose the TPP: Joe Stieglitz, Pul Krugman, and Jamie Galbraith. the first two are winners of the Nibel Memorial Prize in economics. Also, last time I looked, perhaps all of the MMT economists are opposed. You must of picked up that remark about it being hard to find economists who were not in favor from Greg Mankiw’s recent piece about the TPP. Too bad that he’s full of it!

      1. Tammy

        (On a side: I just switched my major from religious studies to political science. I don’t know if the work prospects will be any better without a Master’s degree in political science, yet, it’s great to read all the commentary in Naked Capitalism. I so enjoy economics and am a complete novice.)

        1. Jack King

          Poly Sci is a step up from religious studies, and both will help you carry on a good conversation at a cocktail party…..but that’s about it. A Liberal Arts education does help one to become more well rounded, but with the cost of higher education today, you really need your studies to have a payoff.

          1. bob

            Dolla bill yall! Kneel at the feet of your master, that’s all you need to know?

      2. Jack King

        Ahah…the unholy trinity. Joe, get real…very few economists are not cheerleaders for international trade. In the old days when trade only amounted to 5% of our GDP, we could afford to be a bit more aggressive
        with barriers (Smoot-Hawley notwithstanding). Today it is up 14%. Not to be a player in the global economy would be suicide. Most economists realize the advantage of Comparative Advantage. It is shocking that your trinity ignores it.

        1. Joe Firestone (LetsGetitDone)

          Do I really need to reply to this nonsense. Look when a few of the most distinguished economists in the country oppose the TPP and a bought mediocrity like Mankiw that even a non-economist like myself can outargue makes a blanket statement that its unanimous for it, one knows that there must be something wrong with that statement, such as maybe that it’s motivated by the bought nature of the man.

          On comparative advantage, it applies at the macro level in situations where free trade actually exists, the inference that because of it nations that sign up to so-called free trade agreements will benefit is an unwarranted inference wholly dependent on how the gains from trade are internally distributed and also on the sustainability effects of free trade on both the environment and on the industrial capability of a nation that may need that capability in the future. Both of these matters are beyond the scope of most narrow economists to evaluate.

          1. Jack King

            “Do I really need to reply to this nonsense. Look when a few of the most distinguished economists in the country oppose the TPP…..”

            There should be an emphasis on the words “a few”. Let’s face it, some economists have a political agenda. Would you take the word of, say, Art Laffer, who has an opposite view?

            “On comparative advantage, it applies at the macro level in situations where free trade actually exists……”

            It exists in areas that are free from protective barriers. Yes, there are issuers about the environment, but that is a problem that each sovereign nation must deal with on their own terms. It is typical that in economies that are in the early growth phase, that environmental issues are ignored. But as they mature, EPA-like structures are implimented almost universally. China is currently entering that phase. As someone who has studied these issues you should be well aware of these patterns.

            1. bob

              “It exists in areas that are free from protective barriers”

              Where, exactly, is that? Name it.

              1. Jack King

                There are close to 200 countries in the world. Go to and do your own research.

    4. different clue

      If you lost your job due to NAFTA, then you are not a consumer anymore and “low low prices” mean nothing to you. Also, if you lost wage-levels and jobsite quality because of mass illegal immigration, realize that came from NAFTA too. NAFTA was engineered deliberately on purpose to exterminate the small-farmer sector in Mexico and exterminate as many Mexican-owned Mexico-centric bussinesses as possible. The plan was for all those millions of de-jobbed and de-livinged Mexicans to be driven off the land and into the big city slums and especially into the NAFTA maquiladoras intended for the Mexico-US border.

      The effect of MFN for China was not quite planned on. China was so much cheaper than even Mexico that the jobs meant to be moved to Maquiladorastan were moved to China instead. So the illegal Mexican immigrants continued onward into the US itself rather than stopping at the maquiladoras which were expected to have been built for them to stop at . . . and slave away in.

      Still, if the presence of eleventeen million NAFTAstinians in the US has negatively impacted the personal economy of you or someone you know, remember that NAFTA was designed on purpose with malice aforethought to achieve exactly that result.

      1. Jack King

        “If you lost your job due to NAFTA, then you are not a consumer anymore and “low low prices” mean nothing to you.”

        If everyone had preserved and protected his job from the stone age on, we would still be hunting and gathering. In the US today, one job in 20 disappear every year. Indeed, the most economically thriving parts of the country have the greatest job turnover. 85% of 5th graders will eventually enter jobs which have yet to be created. This is the 21st century. Better keep up…..or die.

          1. Jack King

            Unemployment Compensation is about as close as we will get. I once had to use it, and it worked for me.

    5. ogee

      Evidently , you don’t know much about nafta either. The wrongs of nafta have been detailed on every side of the border for over a decade now. Those chickens have come home to roost. Never mind the stagnant economy in the US, or the unfair agricultural welfare that decimated the Mexican farming community that caused the immigration issues these countries have been dealing with. The real issue is the TPP isn’t Nafta. What is known about TPP , is coming from leaked sources, and is only a glimpse into a possible eventuality. And Judging from your comments on the whole, you won’t ever get it. You are a tory, by nature. I doubt you will ever “get it”.

    6. bob

      “I know very little about TPP”

      That’s sort of the point, but you admitting it renders your neo-liberal standard opinion worth even less than nothing. Propaganda.

  8. TedWa

    Aren’t these new trade agreements with the ISDS, sedition? Can’t we bring charges against the President and other signatories in our government for sedition in trying to overthrow the government with the ISDS tribunals??? If these were trade agreements in times of war any one supporting them would definitely be guilty of treason. So why can’t we the people bring charges? That alone would expose the TPP, wouldn’t it?

    I’m not a lawyer but it seems we should have some legal recourse.

    1. Carla

      “Aren’t these new trade agreements with the ISDS, sedition?”

      “Can’t we bring charges against the President and other signatories in our government for sedition in trying to overthrow the government with the ISDS tribunals???”
      I would think so.

      “If these were trade agreements in times of war any one supporting them would definitely be guilty of treason.”
      As Joe Firestone and others have shown, the TPP declares war on national sovereignty.

      But then I’m not a lawyer, either.

      1. MaroonBulldog

        Q: “Can’t we bring charges against the President and other signatories in our government for sedition in trying to overthrow the government with the ISDS tribunals???”

        A. “Don’t call the police. We are the police.”

        You can iinitiate an investigation by the Department of Homeland Security by bringing such charges, but they’ll be investigating you, not the President and other signatories in our government.

        Trust me on this. I know how this works.

    2. MaroonBulldog

      If all you have is a legal argument that something the president wants to do might be unconstitutional, you’ve really got nothing. The administration has already prepared their counterargument. And you will be the one who has to prove that your argument is right and theirs is wrong. If you have “standing” to bring the case in the first place. Which you probably won’t.

      If, on the other hand, you have standing and you also have a Supreme Court case from the past, dealing with the similar facts and a similar issue, and holding that a similar action was unconstitutional, then you have something the administration may have do deal with.

      Here is the philosophy under which the administration will operate to deal with it: “If the president wants to do something, but it’s unconstitutional, then we’ll just have to change the Constitution.” And they can usually do it quite easily; all they need to do is find five Supreme Court justices to vote their way, and lo and behold, the Constitution is changed.

      1. Carla

        Whereas, if a multinational corporation has a legal argument, they have everything. Everybody okay with that?

  9. susan the other

    thank you for this great summary JF; and Carla for the info on city and county legislation – it’s remarkable that NYC declared itself a TPP-free zone. Love it.

  10. MaroonBulldog

    Joe says: “National Sovereignty, State Sovereignty, Separation of Powers; and Democracy”.

    I hear: “Quaint notion; quaint notion; quaint notion; and quaint notion.”

    Sad to say.

    1. different clue

      The stakes are so huge that it pays to treat these things as “not yet a quaint notion, not yet a quaint notion, not yet a quaint notion . . . . depending on who wins.” If the Overclass Overlords could already do these things, they wouldn’t be SEEKing a TPP/TPIP to allow themselves to do these things, would they?

  11. N1313

    The only good thing about TPP is that it will quicken the revolution. Just wondering where the guillotine will be set up….

  12. JohnB

    I’m not keeping as much of an eye on TTP/TTIP as I should be – can someone tell me, how much of an overlap is there, between the two? Can I read criticism/commentary of one, as criticism/commentary of the other?

    1. Carla

      Yes, it’s my understanding that you can. If I’m wrong, I know someone will correct me post haste!

  13. Jeff W

    And second, even if it were [a treaty], it would not trump the Constitution, which is the supreme law of the land.

    To clarify: treaties, along with the Constitution, are “the supreme law of the land,” pursuant to Article VI, Paragraph 2 (the Supremacy Clause):

    This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

    But the Constitution is supreme over treaties:

    This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.

    [Reid v. Covert, 354 US 1 (1957)]

  14. Joe Firestone (LetsGetitDone)

    Thanks, Jeff W, for your clarification. but, please note, I claimed that the Constitution trumps treaties and was the Supreme law of the land relative to treaties. I think you’ve just confirmed that my claim was correct, since I did not say that treaties weren’t supreme relative to laws. The hierarchy is Constitution, treaties, laws. Congressional-Executive agreements aren’t treaties, but are like laws, since both Houses of Congress must approve them by majority vote.

    1. Jeff W

      Your claim was correct but the reasoning was not.

      The phrase “supreme law of the land” (from the Supremacy Clause) refers to the Constitution and treaties—both are the “supreme law of the land.” The Constitution is supreme to treaties not because it is the “supreme law of the land”—again both the Constitution and treaties are, according to the Supremacy Clause—but because the Supreme Court says it is, based on whatever reasoning the court gave in Reid v. Covert (and that reasoning is not and cannot be based on the Supremacy Clause because that clause in itself establishes no hierarchy between the two). In other words, both the Constitution and treaties are in the “supreme law of the land” “class” (as established by the Supremacy Clause) and, within that class, the Constitution trumps treaties.

      1. bh2

        The Constitution is supreme law of the land. Treaties are not.

        The vital difference is that the Constitution can only be modified by amendment as prescribed by the Constitution itself. However, treaties can be adopted or abandoned by nothing more than approval by Congress and signature of the President. It is fundamental that the Constitution cannot be modified by statutory law and no treaty has any practical legal force in US law until it is supported by implementing legislation.

        The idea that the TPP, NAFTA, the UN charter, or any other treaty “obligation” cannot be rescinded by sole authority of Congress and the President is pure bullocks. Even the most politically sacrosanct treaty is not legally graven in stone.

        1. Calgacus

          Basically right.

          But “no treaty has any practical legal force in US law until it is supported by implementing legislation.” is saying that there is no such thing as self-executing treaty. While they are not the norm and there are some who say this (John Yoo of torture memo fame; no self-execution is what he really cares about! :-) ) most don’t.

          In the US, it is uncontroversial that Congress alone can repeal a treaty from having domestic force. In practice, the President alone can do it too – it was stormy when Carter abrogated a treaty with Taiwan, but it blew over. But neither can remove it from being international law, having international force. Of course with a Great Power like the USA, this may not mean too much. But the most fundamental international law like the UN Charter, the prohibition of slavery or piracy are held to be irrevocable, nonderogable and they are in practice, in spite of all the exceptions and hypocrisy.

          1. bh2

            There is no such thing as “international law” except by voluntary agreement among those states which are signatories. It isn’t a “law” if it cannot be enforced and no external law can be legally enforced on a sovereign nation (by definition).

            The Geneva Convention is a treaty. It is expected that all signatory nations will “obey” it. Many don’t honor it in the breech and there are typically no consequences.

            To each particular signatory, any treaty it underwrites has only whatever meaning it assigns to it. That some other nation assigns a different meaning is neither here nor there.

            The UN conventions are possibly one of the biggest jokes on the planet.

            Roosevelt brazenly and repeatedly violated neutrality laws as a deliberate strategy to provoke an attack to take the US into a war the public didn’t want. He’s celebrated by the usual crowd as a heroic figure, not a lawbreaker. (Had the US lost, his name would be mud.)

            Most of the noisy nonsense promoted about nations being “governed” under international law is idealistic smoke and mirrors. Any signatory nation can simply ignore (or terminate) its treaty obligations at will. And history says they often do.

  15. Calgacus

    this so-called trade agreement, if passed and implemented would create profound governance changes in the United States without benefit of the constitutional amendments that would normally be required to accomplish such changes.

    Yes, it could work that way in practice. But not in theory. If something requires a constitutional amendment, it requires a constitutional amendment. You can’t really get around it by passing a treaty or a law.
    Similarly, Joe & Jeff, Treaties are the law of the land, and they trump previously passed legislation. and The hierarchy is Constitution, treaties, laws. or the idea that the Constitution & treaties are the supreme law, and not federal statutes, are not correct.

    As Supremacy Clause puts it:
    The Supremacy Clause . . . establishes the United States Constitution, federal statutes, and treaties as “the supreme law of the land.”

    Treaties are on the same level as federal law, not a higher one. Both are below the level of the US Constitution – that’s what having a “constitution” means. So a treaty might or might not “trump” a federal statute. A non-self executing treaty (the usual) would probably not do so. Treaty Clause is quite good and clarifies most of the usual muddles.

    It also incorporates secrecy of the TPP drafts, hiding them from the public and making it an impossible burden for Congresspeople to evaluate them and to solicit the views of their constituencies about them. It also then provides for keeping the proposed or actual agreement secret so that the American people can’t even know what the law is . . .
    The primary purpose of these “Treaties” is psychological – to use the oppressor’s most potent weapon, the mind of the oppressed against them. This is an instance. The Preznit simply cannot make such things secret, even by “classifying” them. Every congressperson has Constitutionally protected parliamentary privilege, which trumps any Presidential fart, like “classifying” treaty drafts. And it has been so used in US history – but I wonder if any in our current Congress have the guts and even the knowledge that they have every right to publicize anything they discover about the TPP etc, even if the President says NO.
    Jeez, none of them played “Simon Says” as a kid?

  16. Mahender Goriganti

    All this discussion is presumed to be based on the principle and rules of “naked capitalism”.for which it is created for the vultures by the vultures (lawyers) lurking around in all forms for example as politicians, lobbyists, corporate, insurance, banks and real estate industry. The best way to win that game is not play it, just like Gandhi’s principles. Do not to play the game of witch the rules are set by the game creator and being the other party to the game. More potent and powerful than Atom bomb, guns, religions, Hitler, Lenin, marxism, churchill and Roosevelt etc. Gandhi and his followers ( MLK and Mandale) achieved more than any of the above and even Lincoln.

    The way to beet the vultures is not get hurt by playing the games they create. What we all do is try to every day and everything we do is follow the rules created by the vultures, live and die for at the end.

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