Former Congressional Trade Staffers Talk About How USMCA May Be Greeted on Hill

Trade promotion authority puts obligations on the administration to consult, and follow congressional objectives, but the provisions that constrain Congress have no teeth, former trade staffers from both sides of the aisle agreed. Stephen Claeys, a partner at Wiley Rein and former Republican House Ways and Means Trade Subcommittee counsel, said the rules about how long Congress can delay a vote on a trade agreement, and the fact that they have to vote on it with no amendments, are wholly voluntary. "There is no TPA jail. There's no TPA judge," he said during a panel discussion hosted by The Federalist Society.

Claeys noted that Nancy Pelosi chose not to follow the timelines in 2008, when the U.S.-Colombia Free Trade Agreement was sent to Congress while she was House speaker (see 08040905). The FTA was not implemented until 2011 (see 11101306). "With the [U.S.-Mexico-Canada Agreement], as the administration tries to navigate the Hill, particularly if the House changes to Democratic majority, that's something they need to keep in mind," Claeys said. He noted his remarks on the panel -- held Oct. 25 for Hill staffers -- were his own, and not those of Wiley Rein or its clients.

Brian Pomper, a partner at Akin Gump and former chief counsel on the Senate Finance Committee when it was under Democratic control, said he believes the odds are pretty good that Congress will approve USMCA, "assuming the steel and aluminum tariffs don't tank it before we get there." Pomper said if there is a Democratic majority in the House, they can put their mark on the FTA without opening it back up. They could shade the interpretation of the agreement through the implementing text, and they could get side letters added.

"For me the most interesting question is, politically, 'would the Democrats want to reopen USMCA?'" Pomper said. U.S. Trade Representative Robert Lighthizer "has made a pretty good effort to consult with trade-skeptic Democrats," Pomper said, and he thinks there's a decent prospect unions will not oppose the deal. But, he noted, "Environmental groups are not happy. You end up with this blue [collar]-green divide, which is a nightmare for any leader of the Democratic caucus."

Pomper said that while the president may choose to withdraw from NAFTA to put pressure on Congress to pass its replacement, he thinks the smarter political move would be for Trump to campaign around the industrial Midwest, arguing to autoworkers that the deal will help them and that Democrats don't want to pass it. "It's very complex, confusing, shifting dynamics. We'll just have to see what the election brings," he said.

After the panel, Pomper said that if Democrats did want to make changes to USMCA, environmental standards and the 10-year exclusivity for biologics are the most likely go-to sections. Pomper said Democrats could argue that a shorter protected period for biologics is consistent with Trump's own proposals to lower the cost of drugs for consumers. "And you're certainly not going to get any pushback from Mexico and Canada," he said. "But just opening it up at all is a nightmare, I think, for the Democrats."