When the framers wrote the 10th Amendment, did they have the Monsanto Provision in mind?

[Faryn Balyncd]

Last edited Sun May 10, 2015, 02:08 PM - Edit history (1)

That is, when they wrote, in the Bill of Rights:

"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."

http://legal-dictionary.thefreedictionary.com/Tenth+Amendment

... did they really mean to say:

"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. . . . . .EXCEPT IN THE CASE OF "TRADE" DEALS, in which case not only shall all federal laws (including those pertaining to health, safety, labor, environmental, and labeling) previously passed by Congress that now conflicts with the "trade" deal shall be overridden by the terms of the "trade" deal, but any law or regulation by any state, local government, or previously legal action by the people, which conflicts with the "trade" deal shall be immediately overridden by the terms of the "trade" deal.

Moreover, if the "trade" deal shall be submitted submitted to the Congress of these United States under "Fast Track", then the members of the Congress shall vote on the entire "trade" bill, including provisions which effect patent law, copyright law, labor law, environmental law, health law, safety law, and product labeling, up or down, without amendment, and without delay."


? ? ?

Is that what Madison had in mind?


Did the Framers anticipate the establishment of a process in which all manner of Congressional, state, and local legislation in diverse areas of law could be simultaneously overridden by bundling into an agreement made between the executive brand and foreign entities, and expedited by limiting the power of Congress to voting up or down on the bundled agreement with no power to modify or amend?


Did they envision a Monsanto Provision invalidating state and local laws, including food safety and food labeling, on the basis of a "trade" deal arranged by negotiators who viewed state and local food safety and/or food labeling laws a "trade" barrier?

[Mojorabbit]

1. k&R nt

[tritsofme]

2. Wrapping your argument around the 10th amendment? Did I just walk into a Tea Party rally?

[Faryn Balyncd]

3. Are you suggesting that the premise that, in a democracy, legislation should be the...

... primary responsibility of democratically elected Congresses, legislature, and local bodies, rather than something that should originate in cloistered negotiations between negotiators appointed by the executive branch and foreign entities, and subsequently expedited through Congress by bundling, and restricting Congressional options to voting up or down on a bundled package that overrides decades of law in diverse areas, and by using this process to additional invalidate state and local laws, is a "Tea Party" concept?

If Tea Partiers misinterpret the First Amendment to try to establish theocracy in the name of "religious freedom", does that make the First Amendment a "Tea Party Amendment"?

Do you have no better argument that an ad hominem, guilt by association smear?



Or is that all that's left when faced with a reality that shoving a corporatist agenda down the throats of Americans by expediting a "trade" agreement through Congress which invalidates wide and diverse areas of federal state and local laws, in one fell swoop?

[ibegurpard]

4. It would seem that is what he or she is suggesting.

[tritsofme]

6. Legally, the 10th Amendment is a "truism" that adds nothing to the Constitution.

It only gets dusted off by Tea Partiers and the like to justify tearing down the New Deal.

Find a better argument.

[Faryn Balyncd]

9. The point is that the framers could not have envisioned a process to undermine democratic process

.... by allowing all manner of legislation, from labor, to environmental, to intellectual property, even down to the level of product labeling, by all levels of government (federal, state, and local) to be overridden by a process of including all of these diverse areas into a so-called "trade" deal, negotiated by cloistered. corporate-influenced appointees of the executive branch, appointees who decide to assert that all manner of things constitute a "trade" barrier, and consequently making these diverse changes in law through an expedited process in which Congress is restricted to an up-or-down, no-amendment vote, and which other levels of government have their laws and regulations overridden.


Madison himself said he thought the 10th Amendment was "superfluous" and unnecessary, but agreed to it, because, as he stated, "Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it."


The point is that doing end runs around democratic process is not good for the health of democracy.


How about addressing those issues, rather than continuing to use ad hominem, guilt-by-association, name-calling?

[tritsofme]

11. The Constitution gives Congress sole power to determine the rules of it's own proceedings.

TPA is a statutized agreement between Congress and the president over the rules under which trade agreements will be considered by Congress for a certain period of time.

TPA empowers Congress more than otherwise by setting priorities for the USTR and requiring frequent and detailed progress reports.

The nature of international trade agreements make it impractical for Congress to make wholesale changes to a finished multiparty negotiated agreement. Without TPA Obama would lack any credibility as a negotiating partner, his word would be meaningless. I think any agreement that President Obama negotiates deserves an up or down vote.

There is no constitutional question here, Congress clearly has the authority to set the rules and terms of how it will debate certain issues.

TPA is also not enforceable upon Congress. Under the same principle either house of Congress could unilaterally renege on the TPA agreement at any time. In the next six years, a Democratic-run Senate would not be obligated to give a Republican president an up or down vote on an agreement they bitterly oppose.

[Faryn Balyncd]

12. Your assertion that "TPA is also not enforceable upon Congress. " is simply incorrect:

The reality is that the Hatch bill would require the vote of 60 Senators to remove a pact from Fast Track consideration.

A major point of Fast Track is t hat it makes it more difficult for specific bad law to be defeated by bundling everything into one agreement, and, by removing Congress's ability to make amendment.

Your statement, " In the next six years, a Democratic-run Senate would not be obligated to give a Republican president an up or down vote on an agreement they bitterly oppose." not only requires that, for Democrats to block a "trade" agreement from a Republican president that Democrats must not only control the Senate and hold their caucus together, but is absolutely incorrect in stating that a majority of Senators could block an up-or-down, no amendment vote under Fast Track.

To the contrary, to remove a"trade" agreement from the Fast Track process, Democrats would need either a 60 vote super-majority, or they would need to repeal the TPA authority. Or they would need to reject under Fast Track, the whole point of which is to make rejection more politically difficult, and amendment impossible.

Yes, Congress can determine its proceedings.

But the history of recent "trade" agreements, and what we know about the negotiations of the TPP, make it unwise for Congress to limit its options.

[tritsofme]

13. No, it is absolutely correct. Those provisions are not enforceable.

The general principle here is that the current Congress lacks the power to bind future Congresses. Each Congress has the sole authority to set the rules for its own proceedings.

Either house of Congress could unilaterally dissolve a TPA agreement at any time. There would be no way to enforce TPA when a determined majority is prepared to thwart it.

As I said, just because the agreement between Congress and the president is statutized, does not mean it can be enforced upon a hostile majority. A president would have no recourse against a Congress that set out to abrogate the agreement. TPA is only good as long as both sides continue to honor the agreement.

[Faryn Balyncd]

14. T.P.A., if passed, would be LAW, NOT legislative rules. It will only become law if passed by

both House and Senate, and can only be repealed by a repeal bill being passed by both House and Senate.

I've got to hand it to you!

You continue to come up with, shall we say, rather creative reasons to avoid addressing the substance of the issue (that the bill will subvert democratic process by bundling all sorts of changes, from labor law, environmental law, intellectual property law, safety regulations, even food labeling, together and submitting them for expedited, no-amendment treatment as a "trade" agreement, and invalidating state and local laws in the same process.)

You started by equating a defense of democratic process to a "Tea Party rally".

Then you proceeded to assert that "In the next six years, a Democratic-run Senate would not be obligated to give a Republican president an up or down vote."

And now that it has been pointed out that the bill would require a super-majority to remove a proposed pact from the Fast Track process, you resort to the position that a determined majority can violate the law!



How about addressing the substance of the issue?

Rather than basing your argument on your assertion that a determined majority can simply break the law and not give a future president an up-or-down vote, how about addressing the issue that Fast Track would subvert democratic process to expedite the passage of corporate agenda that stinks?

If it's such a good bill, you must have a better argument than to defend the bill by arguing that Congress can choose to break the law that you are "defending"!

[tritsofme]

15. Again, Congress cannot limit by statute the ability of future Congresses to determine their own

rules.

A future Congress could choose to honor the agreement, but they are not bound.

Congress would not be "violating the law" but asserting valid power under the Constitution. I find the constitutional questions around TPA and statutized rules interesting, that is what drew me to the thread.

I have already stated that I support giving President Obama TPA, however I strenuously disagree that it "subverts the democratic process." TPA is required to credibly negotiate these sorts of trade deals. And Congress is free to enter into an agreement with the president as to the rules under which it will consider trade deals. Promising an up or down vote does not "subvert democracy," it is a compromise.

I don't yet have an opinion on the merits of TPP, as their is no final deal. But I do think that the deal President Obama negotiates deserves an up or down vote in Congress. If it is a bad deal, it should be rejected.

[Faryn Balyncd]

16. So your best argument for TPA is your claim that it is unconstitutional in its requirement that a...

...super-majority is required to removed a proposed pact from the Fast Track process?



I guess that's why "Chairman Hatch said he would never accept changes that make it possible for Congress to remove Fast Track from an agreement that does not measure up, and he got his way."


Again, you continue to "defend" Fast Track, by equating defenders of democratic process "Tea Party rally", and by attempting to deflect criticism of the bill's expediting of proposals for 6 years you are "defending" by saying not to worry, it's unenforceable and unconstitutional.



Yet you continue to ignore the issue that a process that was established for (and may have been appropriate for) actual trade negotiations that were limited to reducing tariffs and duties, has worrisome consequences on democracy when these cloistered negotiations are conducted by corporate influenced negotiators, who use the process to advance a wide-ranging corporate agenda which bundles intellectual property monopoly extension with financial, environmental, labor, health & safety de-regulation on the grounds of these being labeled by the negotiators "barriers to trade".

You continue to ignore the issue that laws regulating intellectual property, banking and financial regulations, business licensing, environmental protections, health and safety regulations are the proper province of Congress, as well as the state legislatures and local governments, and to expedite such bundled vast pro-corporate changes via a process designed for tariff negotiations is a process that strengthens corporate power at the expense of democratic process.

Fast Track was designed for a mid 20th century world of significant tariff barriers, and it did the job of reducing them to near insignificance (A Fast Track process was used for most, but not all "trade" agreements). Fast Track has been in effect for 5 of the last 21 years.

In our 21st century world the role of Congress, state legislators, and local governments all play a vital and dynamic role in democratically fulfilling their duties, and crafting democratic solutions to address needed banking, financial, labor, intellectual property, health, safety, business licensing, labeling. We live in a 21st century would which needs these ares of law STRENGTHENED, not go the way of the almost vanished tariff.

And we need these laws strengthened by a democratic Congress doing its job. We do not need cloistered, un-elected, corporate influenced negotiations eliminating these essential regulations by asserting them to be "barriers to trade."

To legally restrict Congress's role in these widely expansive areas of law to that of a mandated up-or-down vote on the bundled agreement, with removal of their active role of writing,debating the individual diverse issues, secured by the power to amend, and to do this by resurrecting a 20th century process designed for a 20th century world of restrictive tariffs is a profound change.

To strengthen the influence of multinational corporations, and reduce the power of Congress to the choice between being a rubber stamp, or rejecting the entire deal., and to reduce the role of state and local governments to a position that they must scramble to change their laws to conform to the whims of corporate negotiators if the don't want to be bankrupted in an "investor-State-Dispute-Resolution" tribunal (and whose decision is un-appealable to the judicial system) is not a particularly sound formula for strengthening democracy. (Nor is it a very promising formula for creating the type of international economic relations that actually advance the interests of the 99.9%)



How about addressing those issues?

[tritsofme]

17. I entered the thread to bat down that silly 10th amendment argument.

And stayed to argue my point about the enforcement of statutized congressional rules.

I've already stated my position on TPA and TTP, I don't expect and I am not trying to convince you otherwise. The discussion of process issues is what interested me.

[Faryn Balyncd]

18. So you think the Bill of Rights is "silly"?

Your argument against the 10th Amendment was to ignore the substance of the issue and to equate support for democratic process with a "Tea Party rally".

Do want to smear support for the First Amendment because some right wingers misinterpret it and attempt to abuse it to establish theocracy?

If you want to trash the 10th Amendment, the way to do it is by amending the Constitution, not maligning supporters of democratic process "Tea Partiers".

Yes, enemies of legitimate & necessary regulation have attempted to misuse the 10th Amendment to obstruct legitimate and necessary federal authority, and have generally failed.



Now corporatist enemies of regulation have discovered a more diabolical strategy: When faced with the difficult task of getting environmental deregulation, financial deregulation, labor deregulation, even food labeling deregulation, through Congress, state legislators, and local governmental entities, why not do an end run? If an entire package of deregulation can be bundled together as a "trade" deal negotiated with foreign negotiators, in the fashion designed in the mid 20th century for tariff negotiations, and if Congress can be convinced to expedite a no-amendment up-or-down vote in the same fashion as would be perhaps appropriate for treaties with foreign governments, and even tariff reduction agreements with foreign governments, and if corporate-influenced negotiators can somehow be allowed to conduct negotiations shielded from sunlight, then multiple deregulations that would have been politically difficult, if not impossible, as individual bills, not only become easier to get through Congress, but the legitimate overlapping duties & authority that state and local governments have in many of these areas is simultaneously invalidated.

The reality is that state and local governments do have a legitimate duty to regulate in many of these areas. And the proper use of the 10th Amendment is to prevent the legitimate regulatory powers of state and local governments from being invalidated by corporatist abuse of a process rightfully designed in the 20th century for tariff reduction agreements between tariff-imposing nations.

This proper application of the 10th Amendment is in stark contrast to the attempted abuse of the 10th Amendment by right wingers and corporatists to prevent federal regulation.



To prevent abuse of the 10th Amendment by corporatist, the proper, and successful, response has been to demonstrate the legitimate constitutional basis for federal authority, which the courts have properly recognized.

To prevent a process rightfully designed for mutual tariff reduction between nations from being abused by corporatists to achieve wide deregulation both federal and extending to the legitimate duties of state and local governments, a proper application of the 10th Amendment has a legitimate role.

[X_Digger]

5. And yet Madison helped write the supremacy clause, and defended it in one of the Federalist papers.

http://en.wikipedia.org/wiki/Article_Six_of_the_United_States_Constitution

[Faryn Balyncd]

7. How about addressing the issue of whether it is democratic to do an end run around all sorts of

federal, state and local laws, by means of calling it a "trade" deal, in which cloistered corporate-influenced negotiators assert that all manner of safety,labor, environmental, and even labeling regulations, are a "trade" barrier, and expediting the bundled package through Congress and consequently invalidating not only federal but state and local laws.

When freedom of speech and press freedom is defended on the basis of the First Amendment, and when random, warrantless searches and surveillance are opposed based on the 4th Amendment, do you respond by implying the 1st and 4th Amendments are to be disregarded, because of Madison's flaws?

[X_Digger]

8. I'm just saying don't hang you hat on Madison-- he's (one of) the guy(s) who wrote the thing.

The Supremacy clause? Yeah, That's got his fingerprints all over it.

Fuck the TPP, btw.

[Faryn Balyncd]

10. All of the founders had deep flaws. Those flaws cannot be, & should not be, defended.

Madison was mentioned as he is considered the primary writer of the Bill of Rights.


That he was deeply flawed regarding racial issues, should not invalidate our respect for the Bill of Rights, and the principles of democratic governance.


Unfortunately, the Fast Track process of expediting so-called "trade" deals is a prime example of corporate agendas being advanced by end-runs around democratic processes. And the extent to which corporate agendas are being advanced at all levels of government, and in wide areas of the law, under the label of "trade" deals can been ignored by the corporate media.



Glad we're on the same page regarding the TPP. (as well as regarding the Supremacy Clause.)