There is an established genre of attacks on the Constitution arising from its failure to produce certain policies at a given moment.
The left and even some Republicans have argued that the procedures for agreeing to the Trans Pacific Partnership are undemocratic. A leading argument is that voting for “fast track” for the TPP violates democratic principles because Congress is changing its rules now in order to later ratify an agreement it has not yet seen.
The arguments are wholly misplaced. “Fast track” simply permits Congress under its ordinary procedures to commit to a future majority vote of Congress to vote up or down on an agreement that the President has negotiated. Representative democracy is thus served by the later vote on an agreement whose text is known.
It is true that fast track eliminates certain procedural obstacles like the filibuster rule in the Senate and the requirements of committee approval. But there is nothing sacrosanct about a set of procedural rules to democracy. The Senate eliminates its filibuster rules for budgetary reconciliation and the House and Senate often pass legislation that has not been considered in committee. Moreover, parliamentary democracies are democratic and the process of ratification for the TPP actually gives more blocking power than is typical in those forms of government, because Congress imposes some requirements that the TPP must meet to get the advantage of fast track.
The comparison to parliamentary government is particularly relevant, because the TPP is an international agreement. Other nations are unlikely to negotiate seriously if they know that any agreement they make can be amended in Congress to the unilateral advantage of the United States. Given the geopolitical reasons for the TPP, making this procedural precommitment is in the national interest.
The complaints of the left are hypocritical on this matter given their enthusiasm for the administrative state. Remember that there Congress also delegates broad power to the executive—often under even more elastic standards than the TPP fast track– to implement regulations that Congress has not yet seen. And unlike TPP fast track legislation, these delegations do not guarantee Congress an up or down vote to approve these regulations to make them the law of the land. If the left was truly unhappy about the lack of democracy in the TTP fast track, it would support the REINS act which requires Congress’s approval of major regulations that administrative agencies promulgate. The left’s opposition to such legislation shows that their real complaint is not about the loss of democracy, but about deregulation. On the whole, TPP is about removing barriers to free exchange and the administrative state is about raising them.