Q&A: Barack Obama's fight for fast-track authority

Barack Obama is engaged in one of the ugliest legislative fights of his political career and it just happens to be one he is having with members of his own Democratic party.

To deliver what is often described as the most ambitious trade agenda an American president has pursued in a generation, Mr Obama needs so-called fast-track authority from Congress, a process due to move to the Senate floor on Tuesday.

But if the legislature delivers the bill in question it won't be thanks to Democrats, the vast majority of whom are likely to vote against it. Instead, Mr Obama is in the unusual position of having Republicans on his side as he tries to conclude a Pacific Rim trade deal that could be one of his biggest economic legacies.

What is fast-track authority?

The US Constitution gives Congress the exclusive power to "regulate commerce with foreign nations". But for decades now Congress has recognised that having its 535 members negotiate trade agreements makes little sense. So it has regularly delegated that power to presidential administrations via what is known as fast-track authority.

Formally called Trade Promotion Authority, it allows Congress to set a long list of often detailed negotiating objectives for US presidents. In return the Congress agrees to speedily hold simple up-or-down votes on trade agreements that the president brings to it for ratification.

What's the urgency? Why does Obama need it now?

Congress last passed Trade Promotion Authority legislation in 2002, but it expired in 2007. Mr Obama could have sought its renewal earlier. But for most of his administration the Democratic party has controlled one or both houses of Congress and the party's congressional leaders have a tradition of being less than enthusiastic about trade legislation.

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If Mr Obama doesn't have fast-track authority the consensus is it will be hard to close the TPP since the other countries are pretty open in saying they wouldn't trust Congress to abide by anything agreed to at the negotiating table. Moreover, negotiators worry that taking the TPP to Congress for ratification during the 2016 presidential race would make for an even more difficult vote and so they want to wrap up the agreement soon.

Why is fast-track contentious?

The US is one of the most open big economies in the world and the consensus among economists is that its businesses and consumers have benefited significantly from global commerce.

But trade remains a dirty word in Democratic politics. That is largely a legacy of the party's blue-collar roots and the support of labour unions that it has long relied on. Many in the party blame past trade deals such as the two-decade-old North American Free Trade Agreement with Canada and Mexico for the hollowing out of the US manufacturing sector over the past two decades. Trade, they contend, has also helped depress wages and contributed to rising inequality.

The truth is opponents to fast-track authority are really preparing for a bigger fight this year over the TPP. They argue the TPP will only add to the problems thanks to the inclusion of countries such as Vietnam where average wages remain much lower than in the US. They also contend it won't protect the US against currency manipulation by its trading partners, will harm the environment and impose US intellectual property rules on other countries and lead to higher priced medicines as a result.

But won't fast-track also cause the unwinding of Dodd-Frank and other US regulations?

One of the main arguments against Trade Promotion Authority is over something called Investor-State Dispute Settlement mechanisms. Such provisions have been a dull legal feature of trade and investment treaties for decades and allow foreign investors to take countries to independent arbitration tribunals if their property is expropriated or they are otherwise discriminated against as foreign entities.

There is no doubt that companies have begun using the system more creatively in recent years or that the number of cases has grown alongside rising foreign direct investment around the world.

Elizabeth Warren, the Massachusetts senator who is Mr Obama's fiercest critic on trade, argues that including an ISDS mechanism in the TPP will allow foreign companies to block environmental and other regulations in the US. The president and his backers argue that the ISDS system can be fixed and that the TPP will help do that.

The truth is that very few ISDS cases are ever brought. According to the UN, in 2014 there were just 42 ISDS cases lodged against governments by foreign investors around the world.

Ms Warren more recently has also been making the argument that if her fellow members of Congress vote for fast-track they could unwittingly be clearing the way for the repeal of the strict Dodd-Frank financial regulations introduced after the 2008 financial crisis.

The former Harvard law professor's argument is that if a Republican wins the White House in 2016 he/she could use trade negotiations with the EU as a vehicle for repealing Dodd-Frank.

Mr Obama says that argument is wrong. At the very least it appears to be a stretch, or a tad convoluted. If a Republican were elected president in 2016 and Congress remained in the party's control there would be far easier ways to repeal Dodd-Frank for Republicans.

I live in Europe. What does this have to do with me?

The fast-track legislation now before Congress would give American presidents the authority to negotiate trade deals for at least five years. So it would also apply to negotiations launched almost two years ago with the EU for a transatlantic Trade and Investment Partnership, or TTIP. Those talks with the EU are now progressing more slowly than the TPP. But no fast-track would probably mean no TTIP.

Will Obama win?

Republican leaders in Congress say they are determined to work with the president and get the bill through the legislature. Meanwhile Democratic opponents are doing everything they can to block progress.

In the end the answer to the question is likely to be determined by how many Democrats can be convinced to support the president in the lower House of Representatives and how many conservative Republicans thumb their noses at their own party's leadership.

The president needs at least 218 votes in the 435-seat House to win. Republicans now hold 244 seats in the chamber while almost 20 Democrats have come out so far in Mr Obama's favour on the fast-track legislation. That is unlikely to be enough. But how many more will it take?

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