An Asian trade deal being negotiated in secret by the administration would let an international tribunal overrule state and federal laws to help foreign firms, a new issue congressional and legal opponents are raising in hopes of slowing the race for passage.
"It is really worrisome," said top House Ways and Means Committee Democrat Rep. Sandy Levin. "Countries do not want to give away their jurisdiction away to some arbitrary panel," he added.
At issue is the pending Trans-Pacific Partnership treaty and a provision called "Investor-State Dispute Settlement," or ISDS, that would let foreign firms challenge U.S. laws, potentially overruling those laws and resulting in fines to be paid by taxpayers. The provisions are becoming common in some trade deals between other nations.
Levin, a Michigan Democrat, said that the White House has dismissed the fears, claiming that the country normally wins legal trade disputes. But he noted how a U.S. cigarette maker is challenging Uruguay and Australia packaging rules because the laws challenge trade treaty language that bars legislation that could damage profits.
"ISDS is a real issue," said Levin.
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Massachusetts Sen. Elizabeth Warren has warned that it would undermine U.S. sovereignty.
Alabama Republican Sen. Jeff Sessions has also raised a concern about another phase in the legislation, "living agreement." He and other experts say that phrase means that the treaty can be changed after Congress approves it.
The Asia trade deal would be up first if Congress OK's the pending Trade Promotion Authority, which fast-tracks trade agreements. Levin said it is in trouble over concerns about the secret TPP.
At a media breakfast hosted by the Christian Science Monitor, Levin appeared with Jeffrey Sachs, prominent international economist at Columbia University, who panned the provision as a bid by foreign companies to make an "end run" around tough U.S. laws and regulations.
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"Essentially, ISDS allows companies to sue states in a special ad hoc tribunal that is outside the court systems and outside of the legal systems of the host countries," he warned. "U.S. law, U.S. court findings, could be set aside by this ad hoc process really designed and pushed by the corporate sector which sees this as an end run around national law," he added.
Levin also joined in Sessions' demand that the Asia trade pact be opened to the public. Currently, it is being kept in secret and only those cleared to see it are allowed to. Levin said, for example, that he was barred from discussing some TPP provision with Sachs.
The White House has dismissed the secrecy claims, but Sachs said, "It is secret. I haven't seen it. I can't see it."
Levin also said that the treaty would include communist Vietnam which has far different worker rights laws than the U.S. He recalled recently meeting with a Vietnamese woman who was thrown in jail for trying to form a union. "There has to be changes," he demanded.
Paul Bedard, the Washington Examiner's "Washington Secrets" columnist, can be contacted at email@example.com.