Bypassing Congress

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President Barack Obama is the principal political beneficiary of the forthcoming GOP control of both Houses of Congress, for it allows him to triangulate his initiatives and thus bypass both Congressional Republicans and Democrats to further define his Presidential legacy.

[Pat Choate is an economist, author and former vice presidential candidate]

Only days after the election, the President Obama quickly seized the political initiative in this new situation and kick started his bypass strategy on three policy fronts.

The Environment - In a surprise announcement after the mid-term elections, Mr. Obama and Chinese President Xi Jinpin revealed a wide ranging U.S.-China environmental agreement which in part involves the U.S. acceleration of its reduction of carbon emissions to more than 26 percent by 2025, which constitutes a 52 percent speedup over the already controversial Obama goal of a 17 percent cut.

While the discussions between China and the U.S. had been underway for several months, Congress was totally bypassed in these negotiations, surprising soon-to-be Senate Majority Leader McConnell (R-KY) and House Speaker Boehner (R-OH).

Immigration - A week after the election, the White House announced that before the end of 2014, the President would issue an Executive Order creating a new form of amnesty for up to 5 million undocumented immigrants who now reside in the U.S. By this, millions of people would be instantly eligible for new rights and benefits under federal and state law.

While GOP leaders have vigorously opposed amnesty, or even the partial waiving of immigration laws, President Obama's action will bypass Congress altogether.

Trade - The GOP control of Congress allows the President to ignore Democrats' vigorous opposition to the Obama Trade Agreements (OTA) -- the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (T-TIP).

TPP and T-TIP are almost-completed pacts that were negotiated by the Obama Administration over the prior 4 years without Congressional authorization. Both pacts are an extension of the unpopular NAFTA model that since 1994 has cost the U.S. more than one-third of its industrial base and more than 6 million manufacturing jobs.

To no one's surprise, two days after the 2014 mid-term elections, both Speaker Boehner and soon-to-be Majority Leader McConnell announced their support for ratification of these two new OTAs. Yet, ratification of these pacts can happen only by circumventing the Treaty Provision of the Constitution, which requires approval by two-thirds of Senators present, and by weakening legislative "regular order" rules of both Houses of Congress. Specifically, Speaker Boehner and Senator McConnell are supporting an Obama initiative that requires them to force through both Houses Trade Promotion Authority (TPA) legislation that will:

1.    Provide President Obama retroactive authorization for trade negotiations underway since 2010 (Approval Democrats in both Houses refused to provide.)

2.    Weaken House and Senate rules for consideration of the Obama Trade Agreements prior to Congress being allowed to see the text of these pacts.

3.    Accept the provisions of the OTAs in full.

4.    Accept the legislation adopting the OTAs as written by the White House.

5.    Provide the OTAs priority legislative consideration.

6.    Limit the time for Congressional review of the OTAs.

7.    Make no amendments to the OTAs.

8.    Prohibit any filibuster on the OTAs by any Senator.

9.    Make OTA ratification a simple majority vote in both Houses.

10.    Legislatively change U.S. laws and regulations to fulfill the treaty-like requirements of the OTA.

11.    Legislatively and administratively force state and local governments to accept the OTA provisions.

12.    Make the Obama Trade Agreements self-sustaining - that is, permanent, institutionally self-changing, and shorn of any future requirement for Congressional involvement or approval.

A key feature of the Obama initiatives is that Congressional budget and appropriations processes cannot alter these lame-duck plans since they are administrative and regulatory in nature. Nor is Congress likely to override a Presidential veto of any bill reversing these immigration and environmental actions. And Congressional Democrats lack the votes to reject the OTAs by themselves.

Although the House of Representatives has the power to impeach the President for any reason it wishes and the Senate to remove him from Office with a two-thirds majority vote, 13 or 14 Democratic Senate votes for such are improbably. And even it they did, President Joseph Biden would surely veto the same GOP bills.

In sum, Bypassing Congress is a winning strategy for this Lame Duck President. The big question is does Barack Obama have more such surprises in store for the 114th Congress?


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