Investor — State Dispute Settlement and the Oath of Office

The oath of office for Congress says: “I . . . solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic.” How can a Senator or Congressman fulfill the oath that she or he will support and defend the Constitution by voting for any Investor-State Dispute Settlement (ISDS) — based trade agreement, such as the now apparently dead Trans-Pacific Partnership (TPP), the struggling Trans-Atlantic Trade and Investment Partnership (TTIP), and the emerging Trade In Services Agreement (TiSA)? The answer is that she or he can’t. I’ll explain!

The Constitution is the founding document of a sovereign nation, the United States of America. One can’t support that Constitution by voting for an agreement that can undermine or constrain US sovereignty, democracy, federalism, separation of powers, and consent of the governed in unreasonable ways. But, ISDS-based agreements do just that as I’ve argued in detail elsewhere.

The Preamble of the Constitution says:

We, the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Preamble does not add to the legal powers granted to the Government explicitly in the Constitution, or to its inherent powers implied by the explicit grants. However, it has been used by the Courts to interpret the meaning and intent of portions of the Constitution, and its goals.

Accepting that one of the goals of the document is to promote “the general Welfare”, one must ask how a Congressional — Executive agreement that provides the authority for external private tribunals to penalize the federal government with immense fines for passing legislation that promotes “the general Welfare”, but negatively impacts the current and potential profits of foreign corporations, can possibly be Constitutional?

And, if the answer is that it cannot be, then how can it not violate the oath of office for an officeholder in Congress who knows that it cannot be, to ever vote for an ISDS-based agreement?

And if such agreements are now in force then how can it not violate the oath of office to allow them to continue to remain so? And if the answer is that it does violate the oath, then doesn’t each member of Congress have an obligation to vote against the TPP, if it should ever come to the fore again, and the other pending trade agreements, as well as to vote for repeal of all existing trade agreements with ISDS trade provisions?

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