Existing and proposed trade agreements with Investor – State Dispute Settlement (ISDS) provisions fail to support and defend the Constitution, and even subvert it. Here is a partial list of likely constraints on US sovereignty, democracy, federalism, and consent of the governed arising from ISDS incorporation in a trade agreement.

First, to maintain stability in the banking system, the economy, and the political system, the US Government may, in case of another financial crash, want and need to take all big banks into resolution, and then nationalize and continue to run them. In fact, the public may make another bailout of the big banks a political death sentence for any member of Congress.

An ISDS tribunal decision, however, could, potentially, based on the language of ISDS provisions, coerce the US into bailing out insolvent big banks, provided these banks have foreign stockholders (which all of them probably do). In this way such decisions can subordinate the sovereignty of the United States government, given it by the people, as well as their clear political will, to the decisions of an ISDS tribunal.

Second, ISDS turns over part of the legislative power of the Federal government to the ISDS courts and the corporations buying their loyalty through employing these tribunal “judges” in other contexts, and in so doing violates the Constitution. There is nothing in the Constitution suggesting that whether a US or State law is consistent with pursuit of the general welfare can be determined by quasi-judicial tribunals external to the United States and unaccountable to its people or its legislatures, or by any other tribunals external to the United States, and not subject to the consent of the governed. Indeed, there is a prohibition against any but Article III Courts making such determinations.

But the TPP and its ISDS mechanism would do just that. So, this so-called “free trade” treaty violates both the Constitution of the United States and also its national sovereignty.

Third, ISDS provisions in these agreements will create an unconstrained and unconstitutional tribunal-ruled regime, whose decisions can also paralyze actions by future Congresses that might reduce corporate investors’ “expectations of profits”; another blow to sovereignty and democracy.

That regime would fuse judicial and legislative authority through its ability to fine the US government, forcing it to seek repeal of existing legislation and rules, while at the same time forcing the government to legislate under constant threat of potential substantial damage awards if it were to pass laws introducing changes in the political system that might impact a multinational corporation in a negative way. Also, the agreements define “investment” so broadly that it applies to any asset that is either owned or controlled by investors, and therefore to any new regulation that may be passed by any democratic government, placing chains on passing regulations and defeating the principle of the consent of the governed.

ISDS fails to provide a clear legal provision allowing governments to continue to regulate investments for public purpose through laws and regulations that would not be subject to the interpretations of ISDS tribunals dominated by representatives of corporations making decisions in accordance with the principle that national level rule making must not interfere with the legitimate “expectations of profits” held by multinational private corporations, or to any other tribunals not subject to the consent of the governed.

The elevation of the principle of “expectation of profits” above all other principles including the principles of “public purpose,” “consent of the governed,” “the general welfare,” “separation of powers,” and “national sovereignty”, is tantamount to the overthrow of democracy. It may preserve its form in national level elections; but it empties them of meaningful content in mandating change and in conferring legitimacy on national authorities.

Fourth, ISDS tribunals provide multinationals with protections against risk that are not accorded to domestic corporations and proprietors competing with them. This would appear to open ISDS-based agreements to challenge since the Constitution guarantees equal protection of the laws to all legal persons, including US subsidiaries of multinationals, and ISDS-based Congressional – Executive Agreements are laws, which offer multinationals greater than equal protections.

In short, even this partial list of likely constraints on US sovereignty, democracy, separation of powers, federalism, and consent of the governed arising from ISDS tells us that trade agreements incorporating it are opposed to the public purpose of the nation. Fundamental to that purpose is preserving the values just mentioned.

While there are other important values that are components of public purpose, such as prosperity, economic growth, jobs, health care, labor rights, environmental and climate sustainability, education, national security, and many others, there is also a hierarchical ordering of values because the first set of political values makes it possible to maintain and achieve the second set in a sustainable way. So, “first things first” says that ISDS and trade agreements incorporating it, regardless of their pragmatic advantages, must be uncompromisingly opposed because they undermine our constitutional foundations.