Between the voluminous TPP text and the “fast-track” trade promotion authority law passed last year, there are a pair of provisions that allow the president to slow-walk or even kill the landmark 12-nation pact.
The next president could refuse to verify that other countries have implemented their early commitments under the pact. Or he or she could simply delay sending the paperwork to inform other TPP members that the United States has completed its own implementation.
Ironically, the same fast-track authority intended to give a president the power to push complicated trade deals forward, could easily be used to do the exact opposite, giving a President Trump — or Hillary Clinton — more leeway than most people realize to indefinitely delay the pact regardless of what Congress does.
“A Trump administration would use all available options to ensure the TPP will never be implemented, even if Congress betrays the American public and votes for it in a lame-duck session,” Trump trade adviser Peter Navarro said when asked whether the Republican nominee would use the provisions to block the deal.
He added that under the Trump trade doctrine, “any deal must increase the GDP growth rate, reduce the trade deficit, and strengthen the manufacturing base.”
The Trump campaign’s vow to kill the deal puts pressure on Clinton to follow suit. Her campaign did not respond to an email asking if she would block implementation of the agreement if Congress passes it in the lame duck. But the Democratic nominee has been equally forceful about her opposition to the deal on the campaign trail, although she supported it as a member of the Obama administration.
“I oppose it now, I’ll oppose it after the election and I’ll oppose it as president,” Clinton said during an economic policy speech at an automotive manufacturing plant in Warren, Mich., earlier this month.
Right now, of course, there’s plenty of reason to believe Clinton or Trump won’t have to make the decision to use executive authority to put the pact on ice. Just last week, Senate Majority Leader Mitch McConnell again said Congress would not vote on the deal.
“The current agreement, the Trans-Pacific agreement, which has some serious flaws, will not be acted upon this year,” McConnell said at an event in his home state hosted by the Kentucky Farm Bureau.
But on the chance that Obama succeeds in winning House and Senate majorities to make it the law of the land before he leaves office, POLITICO’s reading of the two texts found several obscure provisions that give the next president potential room to maneuver.
Clinton or Trump’s refusal to exercise the fast-track certification requirement, for instance, would thrust the pact into limbo: passed by Congress, but not yet in force.
And the White House could also go a separate route to block the TPP through a provision of the deal itself.
The TPP can’t go into effect until the United States and the 11 other countries notify New Zealand, the custodian of the agreement, that they have completed all the legal procedures. If Trump or Clinton refused to forward the required paperwork, it would scuttle the pact not just for the United States, but for all 12 members.
After two years, the TPP could go into effect for as few as six countries that have completed their legal processes so long as they represent 85 percent of the combined gross domestic product of all of the members — a stipulation that effectively makes the United States, because of its huge economy, the deciding factor in whether the deal takes effect at all.
Many TPP opponents say they doubt that Clinton would block the will of Congress, should the deal pass in the lame-duck session of Congress after the election.
“Her commitment to stopping it goes about as deep as a thin gloss,” said Norman Solomon, a coordinator of the Bernie Delegates Network, an independent left-wing advocacy group that back the anti-TPP views espoused by Vermont Sen. Bernie Sanders.
But he added that his group is ready “to do battle if need be. We won’t accept Clinton trying to grease a path for the TPP on either side of the inauguration.”
One labor official dismissed the prospect of either Clinton or Trump blocking the TPP after it passes as hypothetical, since union groups and their allies are focused on stopping it in the lame duck.
“But since we believe TPP is a bad deal for working families, it’s reasonable to say we’ll do everything possible to prevent it from being implemented — even if it somehow passes in lame duck,” said Thea Lee, deputy chief of staff for the AFL-CIO.
Meanwhile, there is a history of presidents abandoning their uncompromising trade statements on the campaign trail once they’re in office, said Scott Miller, a senior adviser at the Center for Strategic and International Studies.
Case in point: Obama himself. On the campaign trail in 2008, he pledged to oppose the very South Korea and Colombia deals that he later sent to Congress, as well as the already-approved Central American Free Trade Agreement. He also vowed to amend the North American Free Trade Agreement to include stronger labor and environmental protections. While he never reopened NAFTA, the administration argues he has accomplished that goal through the TPP since it contains stronger labor and environmental provisions and includes both Canada and Mexico.
Miller said the inconsistencies reflect the difference between running for office and actually serving in that office.
“At the end of the day, you’ve got to have some continuity in policy,” Miller said. “I don’t actually know how to match what people say on the campaign trail with what they do in office other than the fact that usually, when you get in the big chair in that big office, things look a lot different.”
The incoming president would also face enormous pressure from Japan and other TPP countries to honor the deal, especially if Congress has backed the pact.
“In a way, it would almost be worse to pass it and renege, than not to pass it in the first place,” said Bill Reinsch, a distinguished fellow at the Stimson Center think tank and former president of the National Foreign Trade Council. “It seems to me it would put us in even worse shape in the region than we would be if we had never passed it in the first place. So, I would hope they would both think twice before they did that.”