By Phil Eskeland
Within the next several hours, President Barack Obama is expected to sign an Executive Order to allow certain undocumented immigrants, numbering perhaps as high as 5 million, who entered the United States without prior authorization or overstayed their visas, the right to remain and work in the United States. Elements of the President’s proposal that attract the most attention are: (a) granting temporary legal status to undocumented parents of children who are U.S. citizens or permanent residents to include permission to apply for work permits and (b) expanding the program that defers deportation of younger immigrants who were brought illegally to the U.S. as children (otherwise known as the DREAMERS). Some believe, particularly those within the Republican Party, that the President does not have the legal authority to issue such an Executive Order, based, in part, on his past statements on this topic.
However, this debate plays into the larger discussion that has been brewing for some time that President Obama has exceeded his authority or ignored Congressional directives on multiple occasions. On a fairly regular basis, the Republican-controlled House of Representatives draws attention to actions by the Obama Administration that many of its Members believe have been performed outside the will of Congress, such as highlighting the aggressive tax audits of some politically conservative non-profit “Tea Party” groups. In fact, last July, the House of Representatives authorized a lawsuit against the President for not adhering to a statutory deadline as mandated by his landmark legislative achievement, the Affordable Health Care Act. Some prominent Republicans now urge the House to file another lawsuit against the President on this specific Executive Order.
What does this have to do with trade? Ever since the Reciprocal Trade Agreement Act of 1934, Congress has periodically delegated authority to the President to negotiate trade agreements within the parameters as defined by Congress. This is currently known as Trade Promotion Authority (TPA), which expired in 2007. Prior to 1934, Congress exercised full control over foreign trade by setting tariff rates, as authorized in Article 1, Section 8 of the U.S. Constitution. Because the U.S. is not a parliamentary system of government, TPA is a practical tool designed to navigate the complexities of global trade within the U.S. constitutional system that recognizes both the role of the President in negotiating agreements with foreign nations and the role of Congress in setting trade policy. It is difficult to envision foreign governments sending over their trade ministers to negotiate an agreement with 535 different Members of the U.S. Congress.
Nonetheless, with this Executive Order, the President has reinforced the view – whether valid or not – that he has overstepped his constitutionally-mandated role to enforce, not make or amend, law. Over the past few weeks leading up to this Executive Order, various Republican legislators have warned the President that this action on immigration would “stop everything,” “poison the well,” “be like waving a red flag in front of a bull,” and “be the most divisive action the President could take.”
Thus, it is highly unlikely that Republican-controlled House and Senate will grant President Obama any expansion of his legal authority, even on an issue that is supported by most Republicans. The next two years could be very contentious and divisive in Washington, DC. There is precedent for this behavior. As discussed in a previous blog post, the Republican-controlled House of Representatives voted down TPA in 1998 primarily because a significant minority of Republican opponents simply did not trust then-President Bill Clinton because they believed he lied under oath during the Monica Lewinsky scandal. However, once President George W. Bush assumed office, a similar TPA bill passed Congress in 2002 because of a switch of 44 votes on the Republican-side, including 33 incumbent GOP Members who were still in office. Free trade has become even more contentious in recent years, as evidenced by three-quarters of House Democrats opposed to “fast track” procedures for the Trans-Pacific Partnership (TPP) agreement, including 19 Democrats who voted for the Korea-U.S. Free Trade Agreement in 2011, (even with a member of their own political party in the White House) and the division among conservative Republicans about the efficacies of free trade, with derisive rhetoric linking the President’s controversial health care law to the TPP (“Obamatrade”).
The past does not necessarily have to be prologue. Even during the last two years of the Clinton Administration, the Republican-controlled Congress worked with President Clinton to pass nearly 600 bills into law, including comprehensive financial services sector reform (“Gramm-Leach-Bliley”) and Permanent Normal Trade Relations (PNTR) with China. Perhaps, after the heat of the moment, the GOP rhetoric on immigration will not significantly affect other priority issues. Perhaps President Obama will be able to persuade a majority of the American people that this Executive Order is simply “prosecutorial discretion” in enforcing existing immigration law. Perhaps the President’s action will spur the Republican-controlled Congress in 2015 to act quickly on the issue of immigration to enhance their chances of winning the presidency in 2016 by trumping the Executive Order, thus allowing bipartisan legislative action on other issues such as trade later in the year.
Regardless, foreign governments will not reveal their politically-painful “bottom line” in trade talks with the United Sates unless they can be assured that agreement will survive intact and not be picked apart by 535 Members of Congress. Thus, the primary purpose of TPA is to preserve a role for Congress in trade while still getting the best possible market-opening agreement for the United States.
As a result of the President’s action on immigration, passage of TPA will be deferred, at a minimum, for the short-term and perhaps for the rest of the Obama Administration. However, the one silver lining is that this delay in Congressional approval of TPA may further extend the TPP talks, thus providing Korea an opportunity to join and influence the negotiations before the agreement is completed.
Phil Eskeland is the Executive Director for Operations and Policy at the Korea Economic Institute of America. The views expressed here are his own.
Photo from Barack Obama’s photostream on flickr Creative Commons.
 http://www.washingtonpost.com/blogs/fact-checker/wp/2014/11/18/obamas-flip-flop-on-using-executive-action-on-illegal-immigration/ and http://blogs.rollcall.com/white-house/obamas-own-words-on-immigration-republicans-best-ammo/?dcz
 Previously, TPA was known as “fast track” because legislative procedures are placed on a quick timeline after the Executive Branch submits the trade agreement’s implementation legislation to Capitol Hill for expedited approval in one “up or down” vote (no amendments allowed) in each chamber.