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Senator Byrd

Leadership.      Character.      Commitment.

Remarks by U.S. Senator Robert C. Byrd

July 28, 2003

"Fast Track:  A Fast Way Around the Constitution"

Mr. President, last Friday, I listened with great interest to the concerns that were raised in opposition to the Free Trade Agreements negotiated by the Administration with Chile and Singapore.

Senators cited an abuse of Executive authority, and the undermining of Congress' plenary powers.  I was perplexed, to put it mildly -- not at the arguments against such abuses by the Executive, but at the fact that some Senators were only now waking up to the potential for such a power grab.

To those who now express concerns that the plenary powers of the Congress are under attack by this Administration, I say that we have no one to blame but ourselves.  The Congress inflicted this wound upon itself.  We have plunged the knife into our own body.  It is our hand on the hilt. 

I refer to the Congress' massively destabilizing decision to disrupt the balance of powers between the Executive and Legislative Branches by granting fast-track trade negotiating authority to the President.

So many of the objections expressed last week in opposition to these free trade agreements have been raised before, time and time again on this Senate floor.  Just last summer, they were raised by me; by our colleague, Senator Hollings; by our colleague, Senator Dorgan; by our colleague, Senator Dayton; and others; warning of the abuse of Executive power we were inviting by handing over to the president the authority to regulate trade and international commerce.

We stood on this very floor and spoke to our colleagues, to the people in the galleries here and to the public across the land about what could be expected from the use of fast-track authority should such legislation be passed.  We also spoke of the Constitutional ramifications of fast track.  At the time, our expressions of concern apparently fell upon deaf ears.

Sixty-seven Senators, some of whom are now so urgently speaking in opposition to these free trade agreements pending before the Senate, voted to grant fast-track authority to the president.

I can pound my fist on my desk.  I can shout with brass lungs.  But, ultimately, it's not until it's too late, not until the Senate has been relegated to the sidelines, not until this Trojan horse has entered this sacred chamber that Senators begin to realize just what we have given away.

Shame on us!

This month, the Administration submitted the Free Trade Agreements it negotiated with the nations of Chile and Singapore.  Included in those agreements are proposed changes to U.S. immigration and naturalization laws that would create what is effectively a permanent visa worker program for Chile and Singapore. 

The trade agreements negotiated by the Administration would unfairly lower the threshold for up to 1,400 Chileans and 5,400 Singaporeans to obtain American jobs.  These foreign nationals could renew their worker visas indefinitely, year after year, with no limitation, while additional foreign workers enter the country to fill the annual numerical limitations for new visas.

Chilean and Singaporean nationals who enter the United States under these agreements would effectively be exempted from prevailing wage laws.  Even though employers must attest that foreign workers will be paid the prevailing industry wage and not displace U.S. workers, the Labor Department would be prohibited from investigating and certifying these attestations prior to the worker entering the country.

Further, the Congress would have no recourse to remedy any injustice, either by setting numerical caps or requiring a Labor Department certification, without violating the trade accord.

With 9.4 million Americans out of work, and an economy that has stalled for America's workers, the Administration's immigration proposals are perhaps the most egregious that I have seen in some time.  They are a direct threat to American workers who have already been hit hard by the Bush Administration's economic policies.  And now, what jobs the Administration has not yet destroyed are being given away to foreign labor. 

It's not even clear under what authority the Administration is proposing to make these immigration changes.  The Trade Promotion Act provides no specific authority to the United States Trade Representative to negotiate new visa categories or other changes to our immigration laws.  The Congress has not granted the Administration any such authority.

To the contrary, since the September 11 attacks, the Congress has passed legislation requiring the Administration to tighten our border security and visa entry system -- to plug the holes that were exploited by the September 11 hijackers.  And now the Administration is trying to open the system up all over again.

I doubt that these immigration provisions could survive outside of the expedited procedures of fast track, subjected to thorough debate and amendment by the House and Senate.  But that may explain why they are in these trade agreements in the first place.  After all, a free trade agreement is not subject to amendment.  It is not subject to a thorough debate.  Any committee action is token, at best.  The Congress must approve or reject the trade agreement in 90 legislative days.

These trade agreements and their immigration provisions may only be a first step in setting a precedent where the Administration can use free-trade agreements not only to propose changes to immigration laws, but to isolate all kinds of controversial legislation from the Congress.  Perhaps next time, the trade agreement submitted will include changes involving our military defenses, or our international tax laws, or our foreign aid budget.

The possibilities are frightening to imagine.

Mr. President, the late-Senator Daniel Patrick Moynihan was fond of saying that the U.S. Constitution does not assume virtue in its rulers.  It assumes self-interest.  And it carefully balances the power by which one interest will offset another interest in order to protect against what James Madison called "the defect of better motives."

I am sure that many Senators who supported granting fast track authority to the President did so because of their support for this Administration's free trade policies.  But in pursuit of free trade, the Senate has given away its power to regulate trade and international commerce, and has flung itself into the abyss in which it now finds itself.  If the Senate approves these treaties, the President, who is not the repository of all human wisdom, and is as vulnerable to "the defect of better motives" as any other mortal being, will have a free hand, without debate and without review, to dictate not only trade policy, but immigration policy as well.

The Framers of our Constitution would, I am certain, be appalled at how, time and time again, the modern-day Congress, under pressure from the White House political machine, yields its plenary powers to the Executive. 

We did it with fast track.  We did it with the creation of the Homeland Security Department.  We did it the war in Iraq.

The Senate has a duty to reject these trade agreements.  Even those Senators who support the Administration's trade policies must take a stand in support of something more important.  The Executive is, again, overreaching and the Senate must not, this time, acquiesce.

The Senate desperately needs to come to a better understanding and appreciation of our Constitution and the powers granted the Congress.  It needs a better understanding of what exactly is at stake when we carelessly meddle with our system of checks and balances and the separation of powers.  If we disregard the lessons learned from the colossal blunder of granting fast track authority to the president, we might just as well strike a match and hold that invaluable document to the flame.

We are entrusted with the safeguarding of the people's liberties.  It is their Constitution.  It is their Republic.  It is their liberties that we have sworn to secure.  If we continue to be careless or callous or complacent, it is their cherished freedoms that will go up in smoke.

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