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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsGaius Publius: ISDS Provisions in TPP Violate Article III of the U.S. Constitution
By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, Americablog, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr and Facebook. This piece first appeared at Down With Tyranny.
Theres a growing recognition within the legal community that the ISDS provisions of treaties like NAFTA, TPP, many trade agreements already signed and almost all agreements going forward may well be unconstitutional. That is, they violate protections offered to citizens by important articles of the Constitution for example, Article III, which establishes the judicial branch of the U.S. government, assigns its powers and establishes the right of trial by jury (my emphasis, obviously):
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;to all Cases affecting Ambassadors, other public Ministers and Consuls;to all Cases of admiralty and maritime Jurisdiction;to Controversies to which the United States shall be a Party;to Controversies between two or more States;between a State and Citizens of another State;between Citizens of different States;between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
I recommend taking a moment to read the above. Its from our founding document, and its pretty clear.
What Do Constitutional Lawyers Say About ISDS?
ISDS is shorthand for Investor-State Dispute Settlement provisions in current trade agreements these are carefully not called treaties, apparently as an attempt to bypass the Treaty Clause of the U.S. Constitution, which mandates that treaties be ratified by a two-thirds vote of the Senate: ..................(more)
http://www.nakedcapitalism.com/2015/06/gaius-publius-isds-provisions-in-tpp-violate-article-iii-of-the-u-s-constitution.html
annabanana
(52,791 posts)At this point the very ground under our feet is literally for sale to any corporation in the world. (Or to any Country willing to pony up.)
leveymg
(36,418 posts)Everybody wants to rule the world, and they're already damn close. This will put them over the edge.
hedda_foil
(16,379 posts)hootinholler
(26,449 posts)It sets the Treasury as the payor when a regulation results in lost profit.
leveymg
(36,418 posts)As a practical matter, the CBO will have to calculate in this additional cost of litigating and paying off investors whenever a law or regulation is proposed. It will bring the regulatory process to a standstill.
aspirant
(3,533 posts)in filing a lawsuit, they cut sections of the Voters Rights Act?
Panich52
(5,829 posts)call f/ Senate ratification. Wonder just when the barely noticeable distinction between the two was made official?
moondust
(20,030 posts)Or not.
ucrdem
(15,512 posts)And peeps having been complaining about the "nonconstitutionality" of arbitration since it's been around, and that's been several decades now. It's like the "militia" prvoision gun enthusiasts like to yodel about, conveniently overlooking the preceding "well-regulated." IOW this old dog might hunt but at this point it isnt going to catch much.
leveymg
(36,418 posts)That meant that if an investor wanted to effectively press a case against another state, it had to enlist the support of it's own government's Trade Representative to do so. TPP cuts out the middleman, and makes it possible for corporations to flood the arbitration system with direct Investor-State complaints whenever a new law or regulation threatens to cut into their profit margin.