The fair track to expanded free trade: making TAA benefits more accessible to American workers.
I. INTRODUCTION
II. THE POLITICS OF U.S. TRADE LIBERALIZATION
A. U.S. Trade Liberalization After Smoot-Hawley
B. The Quid Pro Quo of Trade Adjustment Assistance
for Fast Track Authority
III. THE DEFECTIVE CERTIFICATION PROCESS AND
UNSUITABLE SCHEME FOR JUDICIAL REVIEW
A. DOL's Flawed Investigative Process
B. The Inapt Scheme for Judicial Review
IV. MAKING TAA BENEFITS MORE ACCESSIBLE TO
ELIGIBLE WORKERS
A. Administrative Improvements
B. Legislative Changes
V. CONCLUSION
I. INTRODUCTION The trade adjustment assistance (TAA) that American production workers are entitled to--if they are certified by the U.S. Department of Labor to have lost their jobs due to increased imports or shifts in production to foreign countries--might appear to be little more than a token provision of extended unemployment benefits and training of questionable value. (1) When considered in light of the political economy of trade liberalization, however, TAA is the primary method of compensating workers for trade-related job displacement. (2) At times over the past three decades, TAA has been the quid pro quo for fast track authority; the political bargain struck on behalf of American production workers with free trade advocates. (3) Without fast track negotiating authority, the Executive branch would have great difficulty reaching multilateral, regional, and bilateral trade agreements. (4) And once reached, Congress would have no practical chance of passing those agreements as negotiated without an up-or-down vote with limited congressional debate and no amendments. (5) Because of the changing nature of U.S. trade politics, TAA remains an important feature in the political economy of U.S. trade liberalization. (6) This paper does not claim that further trade liberalization is impossible without changes to the TAA program. It is not a political assessment of whether workers hurt by expanded free trade have enough power to block fast track. Nor is it an economic assessment of the efficacy of the TAA program. Instead, this paper builds the case, from a legal perspective, for how and why the Department of Labor (DOL or the Agency) can and should improve the process of certifying workers' eligibility to apply for TAA benefits and suggests how Congress could amend the Trade Act of 1974 (7) to make certification of production workers and--if the program is expanded to cover them--service workers easier. The central thesis of this paper is: if Congress again wants to use the TAA program in a bargain for fast track authority, then DOL must fix its broken certification process and Congress should amend the TAA Act to reduce worker resistance to expanded free trade. The inadequacies of the program cast doubt on whether it truly assists workers, and hence, whether it is really adequate compensation to those hurt by expanded free trade. The Agency's certification process nevertheless needs repair so long as it remains the principal mechanism in place to help workers adjust to job loss caused by expanded free trade. This paper demonstrates how and why the certification process is defective and suggests how to fix it. Moreover, the broken certification process is compounded by an inapt scheme for judicial review of the Agency's negative determinations by the U.S. Court of International Trade (CIT) (8) and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). (9) Therefore, this paper also explains how and why the scheme of judicial review is unsuitable for TAA cases. More importantly, this paper advocates changes to that scheme. Since fast track negotiating authority expired on June 30, 2007, (10) and the current authorization of the TAA program ended on September 30, 2007, (11) now is the right time for DOL to fix its broken certification process. Now is also an opportune time for Congress to amend the Trade Act of 1974 to make it easier for workers displaced by trade to access TAA benefits. (12) If DOL improved its administration of the TAA certification process and Congress amended the statute as suggested here to reduce worker resistance to expanded free trade, Congress could once again use the TAA program as the quid pro quo for renewal of fast track authority. (13) Part II of the paper outlines the politics of U.S. trade liberalization since the mid-1930s and shows that, at times over the past three decades, TAA has been the quid pro quo for fast track authority. Part III then explains how and why DOL's certification process is defective, and how and why that broken process is compounded by an unsuitable scheme of judicial review. Part IV recommends what the Agency can and should do to repair the defects, and suggests how Congress could amend the Trade Act of 1974 to make it easier for workers displaced by expanded free trade to get TAA benefits. Part V concludes the discussion with a brief reminder of what is at stake if the TAA program is not made usable as the quid pro quo for the renewal of fast track benefits and gives a short summary of the less attractive alternatives advocated by others. II. THE POLITICS OF U.S. TRADE LIBERALIZATION As used interchangeably in this paper, the term "trade liberalization" or "expanded free trade" means: the reduction of barriers to trade in goods and services accomplished through voluntary commitments made by sovereign countries in multilateral, regional, and bilateral trade agreements--the international law mechanisms that have facilitated the integration of the world's economies and the globalization of commercial relations. (14) Broadly speaking, trade liberalization or expanded free trade involves making global commerce in goods and services free of trade barriers, trade-distorting restrictions, protectionism, and, indeed, any regulation or commercial tax that burdens international commercial activity. (15) A. U.S. Trade Liberalization After Smoot-Hawley Since the mid-1930s, the United States has pursued a consistent and deliberate policy of expanded free trade. (16) Before World War II, the United States began reducing the high tariff rates that Congress had imposed on imports under the Smoot-Hawley Act of 1930 (17) through bilateral trade agreements. (18) In 1947, the United States and twenty-two other countries formed the General Agreement on Tariffs and Trade (GATT), (19) which was designed to propel free trade and prevent backsliding through the voluntary reduction of trade-distorting tariffs and export subsidies on nonagricultural goods. (20) Since 1947, eight rounds of GATT negotiations have been completed. (21) The first five rounds substantially reduced tariffs on industrial goods through parallel, bilateral trade agreements. (22) The last three GATT rounds resulted in multilateral agreements to further reduce tariffs and subsidies on industrial and agricultural goods, as well as nontariff barriers to trade: * the Kennedy Round, completed in 1967, reduced average, world-wide tariffs by roughly 35% through an across-the-board 50% reduction in tariffs on most industrial goods by developed countries; (23) * the Tokyo Round, completed in 1979, further reduced tariffs on industrial goods through a more complex formula, and established new codes to address nontariff barriers to trade; (24) * the Uruguay Round, completed in 1994, cut the average tariff imposed on goods by developed countries yet another 40%--from 6.3% to 3.9%--and established a framework for reducing quotas, tariffs, and subsidies on agricultural goods, while phasing out quotas on textiles and clothing previously protected under the Multi-Fiber Arrangement. (25) The Uruguay Round was the most far-reaching of all GATT negotiations. (26) The World Trade Organization (WTO) was created during the Uruguay Round, in part, to settle trade disputes among member countries. (27) Since the Trade Act of 1974, the United States has also pursued a policy of trade liberalization through nonreciprocal, preferential trading arrangements, such as the Generalized System of Preferences. (28) More recently, the U.S. has expanded free trade through reciprocal, bilateral, and regional preferential free trade agreements, such as the Canada-U.S. Free Trade Agreement of 1988 and, most notably, the 1993 North American Free Trade Agreement (NAFTA). (29) B. The Quid Pro Quo of Trade Adjustment Assistance for Fast Track Authority Fast track authority has been "the central domestic political prerequisite" for the leadership role the United States has assumed on global trade liberalization since Smoot-Hawley. "By delegating responsibility to the executive and by helping fashion a system that protected legislators from one-sided restrictive pressures, Congress made it possible for successive presidents to maintain and expand the liberal trade order." (30) And, as demonstrated below, Congress has often appeased workers' interests, at least in part, by improving the TAA program in exchange for support of major trade legislation, which has included fast track authority. (31) Until NAFTA and the Uruguay Round, U.S. trade liberalization generally rested on a broad consensus, based on the unambiguous economic theory that the gains from trade outweighed the costs and, therefore, the net welfare effect of expanded free trade was generally positive for consumers and exporters, even though it produced "losers" in import-competing sectors: The central notion that governed the conception of the relationship of trade policy to domestic policy generally was that wherever trade barriers such as tariffs had direct price-distorting effects in the market of the importing country, removal of those barriers enhanced aggregate domestic welfare in that the total gains to consumers could be shown always to exceed the total losses to producers/workers. Put in this crude way, the case for trade liberalization appeared to be totally indifferent to any notion of a just distribution of benefits and burdens from the removal of trade restrictions. (32) The implied domestic political bargain embedded in the liberalism of the GATT trading regime was that the losers of expanded free trade would be compensated by the winners and, hence, the losers would not block trade liberalization due to questions of distributive justice: How then, was the [GATT] insider network able to turn a blind eye to these issues of distributive justice? Above all, through the notion that gains to the winners should allow us to fully compensate the losers from removal of trade restrictions, while still netting an aggregate welfare gain. According to this conception, based on what is known in the economics and related literatures as Kaldor-Hicks efficiency, in the end no one need be worse off as a result of trade liberalization. What was presumed, or taken for granted here, was the existence of a regulatory and social welfare state to take care of the interests of the losers (however legitimate) through the use of nontrade policy instruments (worker retraining, etc.) that are less costly to domestic welfare than trade restrictions. (33) So long as the economic benefits of expanded free trade were clear and the losers appeared to be roughly compensated for their losses, the politics of U.S. trade liberalization was fairly straightforward: Congress would grant the Executive branch fast track authority and workers displaced by expanded free trade would be entitled to receive TAA. (34) But, the political economy of trade in the United States has shifted since the mid-1990s. (35) Following the extension of fast track authority in mid-1993, passage of the NAFTA implementing statute in late 1993, and the re-extension of fast track authority in early 1994, Congress refused to grant President Clinton fast track authority after it expired in late 1994. (36) Since the mid-1990s the economic benefits of further U.S. trade liberalization have gotten murkier, and the opposition to it has become more pronounced. (37) Then, after an eight-year hiatus, fast track negotiating authority was renewed on August 6, 2002, but not without a bruising political battle in the U.S. House of Representatives. (38) 1. The Necessary Grant of Fast Track Authority It would be difficult, if not impossible, for the United States to expand free trade without the Congressional delegation of fast track authority to the Executive branch, because trading partners would be reluctant to enter into trade agreements with the United States unless they were confident that the agreement reached through negotiations would not be materially changed in Congress; and, unless Congress insulated itself from protectionist self-interests, and restrained itself from encumbering trade-agreement implementing legislation with excessive amendments and debate, trade agreements reached by the Executive branch would rarely, if ever, be voted on by Congress as negotiated. Indeed, they might never be voted on at all. Accordingly, all major U.S. trade legislation since the Trade Act of 1974 has been enacted using the fast track approach. (39) Although Section 8 of the U.S. Constitution authorizes Congress to "lay and collect Taxes, Duties, Imposts and Excises" and to "regulate Commerce with foreign Nations," (40) in the past, Congress has proven itself incapable of resisting protectionist self-interests when exercising direct control of U.S. trade policy. The disastrous Smoot-Hawley Act of 1930--a legacy of direct control by Congress--"represents the high-water mark of U.S. protectionism in the twentieth century." (41) Since the Reciprocal Trade Agreements Act of 1934, (42) Congress generally has delegated the power to shape U.S. trade policy to the Executive branch. (43) Under that statute, the United States negotiated parallel, bilateral agreements that substantially reduced tariffs with trading partners before World War II, and, through successive extensions of it, the United States further reduced tariffs in the first five rounds of multilateral trade negotiations following the formation of GATT in 1947. (44) Before the start of the Kennedy Round of GATT negotiations, Congress passed the Trade Expansion Act of 1962, granting the Executive branch the authority to negotiate the further reduction in and elimination of tariffs, while planting the institutional seeds of the fast track approach to U.S. trade liberalization that remain in place today by: * establishing the Office of the Special Representative for Trade Negotiations, the predecessor of the current office of the U.S. Trade Representative (U.S.T.R.); * requiring the transmittal to Congress by the Executive branch of any concluded trade agreement, along with a statement explaining the reasons for entering into it; and * mandating the involvement of members of the Senate Finance, and House Ways and Means Committees in multilateral trade negotiations. (45) The U.S.T.R. and members of Congress from those "gatekeeper" committees remain key players in the politics of U.S. trade liberalization. (46) But the Executive branch overreached the authority Congress had delegated to it under the Trade Act of 1962 by negotiating commitments on nontariff barriers, (47) and when that delegation of authority expired in 1967, it took Congress seven years before it again delegated authority to the Executive branch, under the Trade Act of 1974, to negotiate the removal of nontariff barriers and other trade-distorting restrictions in the GATT Tokyo Round. (48) This delegation came to be known as "fast track" authority because of the six express procedural requirements/restrictions it established for expedited legislative consideration of trade agreements negotiated by the Executive branch: (1) notice to Congress by the Executive branch ninety days before entering into such a trade agreement; (2) consultations between the Executive branch and, among others, members of the Senate Finance, and House Ways and Means Committees; (3) transmittal of a copy of the agreement to Congress by the Executive branch, plus a draft implementing bill with a statement of any administrative action proposed to implement the agreement and an explanation of how the implementing bill or statement changes existing law; (4) time limits of forty-five days for discharge out of committee to the full House or Senate, and fifteen days for a vote on the implementing bill in each chamber; (5) prohibition of any amendments to the implementing bill; and (6) limited debate of no more than twenty hours in each chamber, divided equally between members in favor of and opposed to the implementing bill. (49) The Tokyo Round agreement was implemented by the Trade Agreements Act of 1979, which extended fast track authority for nine more years and was widely viewed as a success for achieving the dual purposes of enabling the Executive branch to successfully conclude an important round of GATT negotiations and facilitating congressional approval of the agreement reached. But nine years later, Congress took back some of the power it had ceded to the Executive branch, through previous fast track legislation, when it passed the Omnibus Trade and Competitiveness Act of 1988. (50) The two most important curtailments on the prior delegation of negotiating authority were: (1) requiring more extensive consultations with the gatekeeper committees in Congress, and (2) creating "a two-house derailment procedure that has since come to be known as the 'reverse fast track.'" (51) By the time the 1988 grant of fast track authority was scheduled to expire on June 1, 1991, Congress had multiple mechanisms at its disposal for derailing fast track authority. (52) The political battles over NAFTA in the early 1990s, and the subsequent eight-year hiatus before Congress renewed fast track authority in 2002, demonstrate not only the growing opposition to further U.S. trade liberalization, but also the rising "price" in the quid pro quo of TAA for the grant of fast track authority. (53) The first major battle over NAFTA took place just as the 1992 presidential election campaign was getting under way. (54) On March 1, 1991, ninety days before the 1988 delegation of authority was scheduled to expire, President George H. W. Bush requested a two-year extension from Congress, as permitted by the 1988 grant, to implement NAFTA and the GATT multilateral trade talks. (55) In response to strong opposition to the President's request and resolutions disapproving the extension introduced by Representative Byron Dorgan (D-N.D.) and Senator Ernest Hollings (D-S.C.), the Chairmen of the Senate Finance and House Ways and Means Committees--Lloyd Bentsen (D-Tex.) and Dan Rostenkowski (D-Ill.)--urged the President to submit an "Action Plan" addressing several of the most contentious issues surrounding NAFTA, including its impact on labor and the environment. (56) The resolutions were ultimately rejected by the full Congress, and fast track authority was extended until June 1, 1993. (57) Then, in accordance with his fast track obligations, President Bush notified Congress on September 18, 1992, of his intent to sign NAFTA. (58) Following Bill Clinton's election on November 3, 1992, the United States reached agreement with Mexico and Canada on NAFTA. (59) Then, after the three countries entered into "side agreements" on labor and environmental issues, Congress passed the NAFTA implementing legislation--using the fast track procedures--in the U.S. House of Representatives on November 17, 1993, by a vote of 234 to 200, and in the U.S. Senate on November 20, 1993, by a vote of 61 to 38. (60) The GATT Uruguay Round Agreement was implemented with somewhat less controversy through amendments to the Omnibus Trade and Competitiveness Act of 1988. (61) One amendment, extended fast track authority, from June 1, 1993, until April 16, 1994, but only for the Uruguay Round Agreement. (62) Another amendment, also specifically applicable only to implementation of the Uruguay Round Agreement, mandated the Executive branch to give Congress 120 days notice prior to reaching agreement instead of the normal 90 days notice. (63) Accordingly, after giving adequate notice to Congress, the U.S.T.R. concluded the GATT Uruguay Round negotiations on April 15, 1994, and Congress passed the implementing legislation--using the fast track procedures--in the U.S. House of Representatives on November 29, 1994, by a vote of 288 to 146 and in the U.S. Senate on December 1, 1994, by a vote of 76 to 24. (64) In part because of the political battles over NAFTA, U.S. trade politics changed after the mid-1990s, especially in the U.S. House of Representatives where "the major new challenges to trade liberalization were the rising concerns over the impact of trade on labor and the environment, and the deepening of partisanship in Washington." (65) House Democrats in particular were under pressure to oppose further U.S. trade liberalization following NAFTA and the Uruguay Round (66) and--coupled with increasingly partisan politics and further polarization between opponents and proponents of expanded free trade--Congress refused to renew President Clinton's fast track authority in 1997, by a vote of 180-243 in the U.S. House of Representatives. (67) "No president had lost a high-profile trade policy vote in Congress since Franklin Roosevelt and Cordell Hull initiated the reciprocal trade agreements program in 1934!" (68) Despite its shrinking size, organized labor proved that, when it flexed, it still had enough muscle to influence U.S. trade politics: U.S. production workers continued to suffer losses from trade competition, and the AFL-CIO remained a foe of new trade liberalization. Its resistance helped limit further reduction of US trade barriers, notwithstanding structural shifts within the business community.... There remains one strong institutional opponent to further trade liberalization as currently practiced, and that is organized labor. Decades ago, unions' trade stances tended to be aligned with their industries--apparel workers were antitrade, while Walter Reuther's [UAW] backed the Kennedy Round. Now capital is increasingly mobile but labor is generally not. Thus workers find their trade interests less and less in line with those of their employers.... Workers tend to see trade as a threat; union leaders see it as an issue for mobilizing support. Partly for this reason, when faced with comprehensive trade bills like fast track ... labor has sought to defeat legislation rather than to bargain and shape its details. (69) And organized labor has been flexing its muscle with some success since the mid-1990s, because "Americans with average skills, women, blue-collar union members ... seem to be on the periphery of globalization's gains [since] [t]hey suffer from both competitive pressure on wage levels and a greater possibility of job displacement." (70) After an eight-year gap, fast track authority was renewed again with the Trade Act of 2002, following "bruising debate" and "unprecedented razor-thin voting margins" in the U.S. House of Representatives. (71) The longest previous gap had been eight months in 1988. (72) Under this newly phrased grant of the "trade promotion" authority (TPA), the Executive branch during George W. Bush's presidency has engaged in the WTO Doha Round multilateral negotiations, as well as negotiations for a Free Trade Area of the Americas, and has concluded several bilateral free trade agreements that Congress has implemented in accordance with fast track procedures. (73) However, the political battle over TPA further polarized proponents and opponents of expanded free trade. (74) "The process has left many participants embittered and did further damage to the fragile bipartisan consensus that guided U.S. trade policy from World War II until the ratification of the North American Free Trade Agreement...." (75) The grant of fast track in 2002 probably would not have happened without bipartisan compromise in the Senate, led by Senators Max Baucus (D-Mont.) and Charles Grassley (R-Iowa), centered on improving the TAA program: Baucus had long given priority to trade policy, but his record was mixed--he had voted against the Uruguay Round/WTO agreement, for example, [and] a trade bill could pass only with significant support in both parties. So Baucus and Grassley walked compatible paths. They looked for a workable compromise package, including on labor-environment issues [and] Democrats [were] determin[ed] to include in the bill a major expansion and reform of trade adjustment assistance (TAA). The House had passed a separate bill extending that assistance, but the issue had not been prominent in the TPA debate, in large part because House Democrats did not give it priority. Baucus, however, decided that major TAA reform was substantively desirable and a means to legitimize his support of the overall TPA measure.... ... The House would buy into expanded TAA.... ... The trade adjustment assistance provisions brought the number of House Democrats voting in favor to 25, leaving room for 27 Republicans to vote no. Consensus on trade policy has become difficult to attain.... Of necessity, the Senate process was bipartisan--with expanded trade adjustment assistance at its center.... [But] bipartisanship there could well be harder to come by the next time around. Nevertheless, the 2002 combination of TPA and TAA epitomizes the sort of balanced approach that, sufficiently enhanced, could build stronger protrade coalitions in the future. (76) Indeed, the most bruising fight yet over fast track authority would also produce the most significant expansion of the TAA program since its inception forty years earlier. "President Bush and USTR Zoellick had their negotiating authority, without major prohibitions or limitations. Trade-displaced workers had a program more commensurate with the scope of their needs." (77) 2. Production Workers' Entitlement to Trade Adjustment Assistance Since Congress passed the Trade Expansion Act of 1962, it has repeatedly expressed its intent that American production workers hurt by expanded free trade are entitled to receive assistance to adjust to job loss and transition to new livelihoods. (78) Congress created the TAA program when it passed the Trade Expansion Act of 1962 (79) and, before 2002, it had amended the original Trade Adjustment Assistance Act five times. (80) With the exception of changes made under the 1981 Omnibus Budget Reconciliation Act, (81) with each amendment, Congress made it easier for workers to access TAA benefits and/or broadened its coverage by: easing eligibility criteria in 1974, (82) adding coverage of agricultural workers in 1986 and workers in the oil and gas industry in 1988, (83) and adding NAFTA transitional assistance benefits for shifts in production to Canada and Mexico in 1993. (84) But Congress significantly reformed and expanded the TAA program under the Trade Reform Act of 2002, and the current Trade Adjustment Assistance Act (TAA Act) (85) generally mandates that workers involved in the "production of an article" are entitled to receive an array of benefits through their state unemployment (re-employment) agency if DOL determines that they that are eligible to apply for TAA benefits. (86) These benefits are designed to help workers adjust to job loss caused by expanded free trade and to transition to new employment and provide: * up to 130 weeks of training, including 104 weeks of vocational training, and 26 weeks of remedial training (e.g., English as a second language or literacy) (87) * up to 104 weeks of extended income support--beyond the state unemployment (re-employment) insurance benefits under state law (typically 26 weeks)--while in training, unless the training condition is waived (88) * up to $1,250 to conduct a job search, and up to $1,250, plus up to 90% reimbursement of certain relocation expenses, to relocate for a job in a different geography (89) * wage supplements of $10,000 for two years for workers over age 50 who lack easily transferable skills and are re-employed within 26 weeks (90) * a tax credit worth 65% of the health care premiums paid by certain workers over age 50 for up to two years (91) Thus, the promise of TAA has been a regular and, sometimes, crucial aspect of the political bargain struck on behalf of U.S. production workers with proponents of U.S. trade liberalization. How well the Agency fulfills its administrative role in certifying workers' eligibility to apply for TAA benefits determines, in part, whether workers hurt by expanded free trade are adequately compensated for their losses. (92) Moreover, inadequate coverage and poor administrative performance by the Agency could increase worker resistance to expanded free trade. (93) 3. The Next Bargain for Fast Track Authority The political machinery for the next bargain between opponents and proponents of expanded free trade has been activated, and the TAA program again appears to be the likely quid pro quo for renewal of fast track (trade promotion) authority. On Thursday, October 26, 2006, the Bureau of National Affairs (BNA) reported on the dim prospects for further U.S. trade liberalization, stating that "[i]t is highly unlikely that Congress will vote to approve legislation to renew the president's authority to negotiate trade agreements when it expires next year, particularly if the Democrats take control of the House...." (94) The BNA also reported, that same day, that DOL would be proposing regulations "dealing with certification questions arising under [the trade adjustment assistance program] at a later date." (95) On January 4, 2007, Senate Finance Committee Chairman, Senator Max Baucus (D-Mont.) introduced a bill (S. 122) (96)--co-sponsored by Senators Norm Coleman (R-Minn.), Maria Cantwell (D-Wash.), and Ken Salazar (D-Colo.)--to "reauthorize the federal government's trade adjustment assistance program until 2012 and expand its coverage to include workers in service jobs." (97) And, in a speech on January 31, 2007, President George W. Bush "called on Congress to renew his authority to negotiate trade agreements" and said that he would "work with Congress to reauthorize and to improve the Trade Adjustment Assistance [sic] this year." (98) The fast track authority (TPA) granted to President George W. Bush expired on June 30, 2007, (99) before successful completion of the WTO Doha Round and without the creation of a Free Trade Area of the Americas. (100) So, before free trade can be further expanded, a new grant of fast track authority must be made to the Executive branch. But the political price for the grant of fast track authority from a Democratically-controlled Congress to an unpopular, lame duck Republican President is likely to be high. Considering the alternatives, proponents of free trade should seek to improve the TAA program so that it functions more effectively as the principal mechanism for assisting workers hurt by expanded free trade and more adequately compensates workers for their losses. At the very least, the administrative defects in DOL's certification process should be fixed. And, if Congress once again chooses to use the TAA program as the quid pro quo for renewal of fast track authority, it should consider amending the TAA Act to reduce worker resistance to further U.S. trade liberalization. (101) III. THE DEFECTIVE CERTIFICATION PROCESS AND UNSUITABLE SCHEME FOR JUDICIAL REVIEW For workers, TAA is a phantom entitlement unless DOL certifies that they are eligible to apply for it. (102) Under the TAA Act, a group of workers, or their employer or duly authorized representative, may petition the Agency, or their state unemployment office, for certification of eligibility to apply for TAA benefits. (103) By statute, DOL is supposed to "determine whether the petitioning group meets the [eligibility] requirements of section [2272]" of the TAA Act within forty days after the petition is filed. (104) Once certified, an eligible worker may then apply for and receive TAA benefits from his or her state unemployment (reemployment) office--if he or she was certified and applies within two years of the date of his or her layoff--provided the worker: had sufficient (minimal) earnings from employment for at least 26 weeks of the 52 weeks before the layoff; was entitled to state unemployment insurance and was not otherwise disqualified for extended unemployment compensation; and was enrolled in an approved training program unless the training requirement is waived by DOL. (105) The petition form itself, however, typically does not provide DOL with substantial enough evidence to make an eligibility determination. (106) And, as demonstrated below, DOL frequently uses requests for voluntary remand to comply with the forty-day statutory period to investigate workers' eligibility, without actually gathering any additional determinative evidence. (107) DOL's investigative shortcomings, though, are not related to its existing written guidelines for investigating TAA petitions. (108) Actually, the Agency's written guidelines for conducting TAA investigations seem to guarantee workers procedural due process. (109) In subpart B of the guidelines, the Agency appropriately articulates the kind of investigation required: The investigation may include one or more field visits to confirm information furnished by the petitioner(s) and to elicit other relevant information. In the course of the investigation, representatives of the Department shall be authorized to contact and meet with responsible officials of firms, union officials, employees, and any other persons, or organizations, both private and public, as may be necessary to marshal all relevant facts to make a determination on the petition. (110) The Agency has also properly equipped itself in subpart B with all of the necessary administrative apparatus for conducting a thorough fact-finding investigation, including providing for a public hearing--replete with testimony, evidence, briefs, oral argument, authentication, transcripts, and appearances--and subpoena power. (111) And, again in subpart B, DOL correctly sets forth the required contents of the Agency record upon which it is obligated to make an eligibility determination, based on these findings of fact: (1) A significant number or proportion of the workers in such workers' firm (or appropriate subdivision of the firm) have become, or are threatened to become, totally or partially separated; (2) Sales or production, or both, of such firm or subdivision have decreased absolutely; and (3) Increases (absolute or relative) of imports of articles like or directly competitive with articles produced by such workers' firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production.... (112) The TAA Act mandates the Agency certify workers' eligibility, but, of course, not all workers are eligible. (113) DOL must certify a group of primary production workers' eligibility in both of the following job loss situations, if it determines that the workers' layoff or threat of layoff was due to: * increased imports like or directly competitive with articles produced by the workers' firm or subdivision, that "contributed importantly" to an absolute decrease in sales or production and to the workers' layoff or threat of layoff; or * a shift in production of articles like or directly competitive with articles produced by the workers' firm or subdivision, to a foreign country, if that country is (1) a party to a free trade agreement with the U.S., or (2) a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act, or if there has been or is likely to be an increase in imports of articles like or directly competitive with articles produced by the workers' firm. (114) DOL must also certify a group of secondary production workers' eligibility to apply for TAA benefits in two other job loss situations, if it determines that: * a significant number or proportion of workers have been laid-off or are threatened to be laid-off from an upstream "supplier" of a related article, if that supplier supplied component parts--that accounted for at least 20% of its production or sales--to a firm that employed a group of primary workers certified to apply for TAA benefits; or * a significant number or proportion of workers have been laid-off or are threatened to be laid-off from a "downstream producer" of a related article, if a loss of business by the secondary workers' firm with the primary workers' firm "contributed importantly" to the secondary workers' layoff or threat of layoff. (115) So workers' certification depends, in part, on DOL's administrative performance. And the Agency's performance in carrying out its statutory duty has been the target of scathing criticism, not only by organized labor, (116) but also in published opinions by members of the CIT. (117) DOL has struggled to fulfill the congressional mandate to certify eligible workers--and thereby help them adjust to job loss caused by expanded free trade and transition to new livelihoods--even when Democrats have occupied the White House. (118) Consequently, TAA benefits have not been as accessible for some workers as Congress intended. This inaccessibility stems from two root causes: first, DOL's own investigative process is flawed, with workers bearing the burden of producing evidence--and proving--that they lost their jobs due to expanded free trade; and second, the scheme for judicial review of DOL determinations is unsuitable for TAA cases. (119) A. DOL's Flawed Investigative Process The criticism of DOL's certification process is warranted. (120) Tyco Electronics v. Dep't of Labor (Tyco IV) is an illustrative case in point. (121) In that case, the CIT ordered DOL to pay almost $76,000 in attorney's fees to the workers' counsel (122) on grounds that the Agency's conduct during litigation was not substantially justified. (123) DOL's hard-edged litigation stance and overzealous opposition to the workers in that case were particularly misplaced but, unfortunately, not isolated. (124) While the award of attorney's fees in Tyco IV was not meaningless, it fell far short of the $119,993.70 requested, and it was probably not sufficient punishment to deter the Agency from repeating its conduct in future TAA cases. (125) It also did nothing to compensate the workers for the long delay in getting the benefits they were entitled to under the statute. Nevertheless, the award memorializes DOL's indolent administration of the TAA Act and the unjustified position that it took throughout the Tyco Electronics litigation. (126) And it signals to prospective pro bono worker-advocates that attorney's fees might be awarded in TAA cases when DOL's administrative behavior is egregious and its conduct during litigation is unjustified. (127) Nothing in the TAA Act requires the Agency to adopt such an adversarial position against workers. (128) Instead, DOL's stance in opposition to workers hurt by expanded free trade is largely the product of the Agency's flawed investigations and broken certification process. (129) Consequently, at times, DOL has failed to adequately carry out the congressional intent of providing assistance to workers negatively impacted by expanded free trade. (130) That failure has contributed, in part, to the current lack of political support for expanded free trade, and will continue to impede further U.S. trade liberalization unless and until the Agency does a better job certifying workers' eligibility for TAA benefits. (131) B. The Inapt Scheme for Judicial Review DOL's defective certification process is compounded by the unsuitable scheme for judicial review of Agency decisions that Congress created by its concurrent grant of jurisdiction to the CIT and the Federal Circuit. (132) This inapt scheme has led to an unsuitable allocation of power among DOL, the CIT, and the Federal Circuit. The Marathon v. Chao (Marathon I) litigation (133) demonstrates how DOL's broken certification process is compounded by that unsuitable allocation of power. In Marathon v. Chao (Marathon II), (134) the Federal Circuit reversed the CIT's holding that "gaugers" who performed quality control tests--and whose firm the gaugers claimed was engaged in "producing an article" (crude oil)--were entitled to TAA benefits. (135) The Federal Circuit's decision rested on its interpretation of a particular statutory phrase--"otherwise produces oil." (136) DOL had interpreted that phrase in a manner that excluded the gaugers from coverage under the TAA because, it concluded, their firm was not engaged in producing crude oil but, rather, merely transported it after it had been "produced." (137) But the CIT rejected (1) DOL's interpretation of the statutory phrase "otherwise produces oil"--and (2) DOL's conclusion that the gaugers were not covered under the statute, because DOL had failed to adequately explain its reasoning. (138) The CIT also rejected DOL's determination that the gaugers were not eligible for TAA benefits because the Agency had failed--after four chances--to adequately investigate the cause of their layoff. (139) Since DOL already had four chances to conduct an adequate investigation when the case came before him for a third time, Judge Barzilay granted the workers' motion for judgment on the Agency's record and ordered DOL to certify the workers' eligibility because he thought that another remand to DOL would be futile: The court finds that [DOL] denial of [the gaugers'] petition for certification is not supported by substantial evidence and not in accordance with law, and, therefore, the Secretary of Labor shall certify [them] for trade adjustment assistance. (140) But the Agency appealed the CIT's decision to the Federal Circuit. (141) The Federal Circuit's handling of the CIT's holding is both troubling and, potentially, quite confusing for workers, DOL, and the CIT. DOL, in particular, should not be heartened by its "victory" in Marathon II. The argument here is not that the Federal Circuit's interpretation of what "otherwise produces oil" was wrong, or that it improperly conducted de novo review of the CIT's interpretation of that term. (142) There is nothing wrong with the Federal Circuit's reversing the CIT on a pure question of law. (143) That was, no doubt, a clear and proper (and most likely correct) exercise of its exclusive appellate power to review a final judgment by the CIT under 28 U.S.C. [section] 1295. But the Federal Circuit's confusion (144) regarding the type of review that it and the CIT should have conducted on the Agency's statutory interpretation under U.S. Supreme Court case law is troubling. (145) The CIT had clearly analyzed DOL's decision under the Chevron standard, (146) and so too, at least implicitly, did the Federal Circuit. (147) As the Federal Circuit made clear, however, the issue of what level of deference DOL's legal interpretation warranted was moot in Marathon II, because "with or without [Chevron] deference," it would have reached the same result. (148) Suffice to say, the Federal Circuit's fumbling of this issue in Marathon II, is likely to cause confusion for TAA litigants that will only be worked out in future litigation, unless Congress steps in to clarify and delineate the appropriate roles among DOL, the CIT, and the Federal Circuit. The Federal Circuit's treatment of the CIT's judgment on the mixed question of fact and law, on the other hand, is less clear and even more troubling. When facts are not in dispute, it is clear--from the Federal Circuit's decision in Former Employees of Barry Callebaut v. Chao (149)--that the Federal Circuit conducts de novo appellate review of the CIT's judicial review of DOL's factual findings: "In reviewing decisions of the Court of International Trade on questions of substantial evidence, this court 'step[s] into the shoes of the Court of International Trade and duplicates it review." (150) But when facts are in dispute, the Federal Circuit's appellate role is not well-defined. Although its review of questions of law is always de novo--disputed facts or not--in Former Employees of Sonoco Products v. Chao, (151) the Federal Circuit seems to have established a three-category spectrum for the nature of the appellate review it would conduct on questions of mixed fact and law, depending on whether or not the facts are in dispute and whether the standard chosen determines the outcome of the case: [1] at one end of the spectrum where the facts are not in dispute and the selection of the appropriate standard resolves the case[;] ... [2] the other end of the spectrum where the application of the standard to disputed facts is necessary to determine whether [a certain] requirement is met[;] and ... [3] in the middle of the spectrum are cases where the facts are undisputed, but the application of the appropriate standard to the undisputed facts is required ... but does not automatically dictate the outcome. (152) If nothing else, the Federal Circuit's somewhat careless handling of the factual findings at issue in the Marathon litigation (153) was a missed opportunity to clarify the respective roles DOL, the CIT, and the Federal Circuit should play in TAA cases when there is a mixed question of fact and law and the CIT accepts DOL's factual findings on purely factual issues, but rejects its statutory interpretation and, hence, its legal conclusion. That, precisely, was the situation that existed before the Federal Circuit in Marathon v. Chao, but the Federal Circuit missed the opportunity to clarify the appropriate roles among DOL, the CIT, and the Federal Circuit, and to articulate the proper standard of review that it would undertake in such cases. Thus, Marathon H is troubling because it highlights that Congress has not clearly delineated the roles among DOL, the CIT, and the Federal Circuit in TAA litigation. Moreover, the Federal Circuit's sloppiness in handling DOL's factual findings, which the CIT accepted--i.e., the nature of the gaugers' duties and when and for whom they performed them (a pure question of fact)--and rejected--i.e., that the workers' firm was not engaged in producing an article within the meaning of the TAA statute (a mixed question of fact and law) (154)--masks the troubling reality that the Federal Circuit either missed or dodged an opportunity to articulate why de novo review is the appropriate standard of appellate review in a case--"at one end of the spectrum where the facts are not in dispute and the selection of the appropriate standard resolves the case"--even though it is on "the other end of the spectrum" from a case "where application of the standard to disputed facts is necessary to determine" the outcome of the case. (155) Because Marathon v. Chao was not in the middle of the spectrum, the appropriate standard of appellate review in those cases also remains unclear. It appears from Marathon H that the Federal Circuit plans to exercise de novo appellate review on questions of law, questions of fact, and questions of mixed fact and law, when facts are in dispute and when facts are not in dispute, whenever that standard of review resolves the case (i.e., always?). In Marathon II, the underlying facts were undisputed; it was the mixed question of fact and law that was in dispute, and the Federal Circuit sided with DOL instead of with the CIT. (156) Marathon II, therefore, is most troubling because, under the current scheme for judicial review of DOL determinations, the CIT is required to treat DOL's findings of fact with the same deference that an appellate court would typically treat a trial court's findings of fact, even though DOL's findings of fact are not the product of a trial, and even if the CIT rejects them either because they are not based on substantial evidence in the Agency record or they are the product of an inadequate investigation. (157) In essence, by conducting de novo appellate review of the CIT's legal interpretation and de novo appellate review on an undisputed factual question, as well as on a disputed question of mixed fact and law in Marathon II, the Federal Circuit effectively eviscerated the workers' statutory right to judicial review by the CIT. Again, the quarrel here is not with the Federal Circuit's de novo appellate review of the CIT's misinterpretation of the law but, rather, that the Federal Circuit missed an opportunity to clarify respective roles by not articulating the proper deference DOL's legal conclusions merit in TAA cases. Some of what is wrong with the current scheme for judicial review requires congressional action. (158) But much can be corrected, or at least made less significant for workers hurt by expanded free trade, if the Agency effectively deals with the certification questions arising under the TAA program. (159) IV. MAKING TAA BENEFITS MORE ACCESSIBLE TO ELIGIBLE WORKERS What, then, can and should DOL do to fix its broken certification process, and how could Congress amend the TAA Act to reduce worker opposition to further U.S. trade liberalization? DOL would better fulfill its duty of certifying workers' eligibility for TAA benefits by: (1) improving the process of petitioning for TAA benefits; (2) conducting more effective investigations of workers' eligibility, while adhering to its primary role of assisting workers adjust to job loss and transition to new livelihoods; and (3) shifting the burden of producing evidence to workers' firms and subdivisions through the adoption of a formal, evidentiary burden-shifting rule. But fixing DOL's broken certification process will not, by itself, eliminate worker resistance to expanded free trade. Therefore, Congress should consider amending the TAA Act to: (1) correct the inapt scheme for judicial review of DOL's negative eligibility determinations; (2) create an incentive for employers to cooperate in DOL's TAA investigations, if DOL does not adopt a formal, evidentiary burden-shifting rule; and (3) extend coverage to service workers. A. Administrative Improvements When DOL publishes its notice for comments on certification questions arising under the TAA program, (160) it should emphasize that it is looking for ideas to fix the certification process by improving the petition process and its general investigative approach. DOL should also propose a rule that formally places on employers the burden of producing evidence of the reason for the petitioners' job loss--and other evidence that DOL needs to make eligibility determinations--by adopting an evidentiary burden-shifting scheme. When coupled with an improved petition process, such a scheme would effectively flip the current presumption that workers are not eligible to apply for TAA benefits, to a presumption that they are eligible, unless their employer produces substantial evidence that the workers' job loss was not due to expanded free trade, or that their firm is not engaged in the production of an article, or is not an upstream supplier or downstream producer. (161) 1. Improve the Petition Process Brad Brooks-Rubin (162) offers several viable suggestions for improving the TAA petition process: Development of an expanded petition form/process would likely improve dramatically DOL's ability to conduct a proper investigation. DOL should first issue more detailed guidance (in both English and Spanish) on the petition process, particularly by providing examples and other assistance for workers to understand the type of information necessary for the agency to review their claim. Workers completing the initial petition may not understand the full implications of the questions, or have access to the accurate information, yet may still feel obligated to complete the document, or ask their former employer to complete it, even if it means providing bad information. With a petition process that either provides detailed instructions and examples for workers, or even access to legal assistance in the preparation of their petition, so that the information and assertions workers provide are worthy of detailed review, the investigation would likely be based on more usable data and lead to more credible results. (163) DOL should conduct focus groups with workers who have been certified for TAA benefits and workers who have been denied them, (164) as well as with counsel who have experience representing workers in TAA cases, to gather more good ideas. 2. Conduct More Effective Investigations To better fulfill its statutory duty of certifying workers' eligibility, DOL should do a better job of conducting its investigations in four ways. First, it should improve its fact-finding capacity for making eligibility determinations. Second, it should articulate more clearly the determinative facts upon which it bases its eligibility determinations. Third, it should ensure that a sufficient agency record exists to enable adequate judicial review of those determinations. Fourth, it should be less zealous in its advocacy against workers' certification in the CIT and the Federal Circuit. To improve its administrative performance, DOL should adhere more closely to its proper role in the certification process. (165) DOL's first and foremost congressionally-mandated role in TAA cases is to help workers adjust to job loss and assist them in transitioning to new livelihoods. With that principal mindset front and center, DOL should then remain narrowly focused on its two primary statutory duties in TAA cases: (1) finding determinative facts upon which to base its eligibility determination; and (2) ensuring that a sufficient agency record exists to enable adequate judicial review of that determination. DOL should not assume, or at least should not go out of its way to assume, a law-making role, especially when the CIT's interpretation of the TAA Act's statutory language differs from the Agency's interpretation. The biggest practical problem with DOL's investigations arises when the investigation results in an inadequate agency record. Brooks-Rubin suggests relying on third-party evidence to ensure that an adequate agency record exists in TAA cases: DOL should be required to generate a record that goes beyond exclusive reliance on statements from the workers and company officials. No record should be deemed complete unless objective, third party evidence is gathered on the issues relevant to the case, particularly, as explained above, when the company itself has completed the petition on behalf of the workers. Such third party evidence could include, depending on the issues at hand, the sources consulted by the CIT in Former Employees of Marathon Ashland Pipeline, Inc., trade-specific publications, trade data for an industry, consultations with industry experts, etc. The failure to develop a record inclusive of such sources should be deemed prima facie evidence that DOL did not conduct a reasonable investigation. Although this, as well as the recommendation [below] regarding company counsel, may require a 60-day, or even a 90-day, investigation period, even these somewhat longer time frames are preferable to the time it takes to conduct litigation, or to a complete denial resulting from a poor investigation that is never appealed. (166) While Brooks-Rubin's suggestion is a good starting point, it does not go far enough to solve the underlying cause of DOL's flawed investigative process, and it might unnecessarily complicate the certification process, especially when employers have substantial evidence to establish whether or not the workers' job loss was caused by increased imports or shifts in production. The root problem with the Agency's investigative approach is that it places too much of the burden of producing evidence on workers. 3. Adopt an Evidentiary Burden-Shifting Scheme Employers should be the primary source of the evidence that DOL needs to make a valid determination on workers' eligibility for TAA benefits. (167) Of course, it is DOL's duty--not the workers'--to "marshal all relevant facts" to make a reasonable determination on the workers' petition, and to ensure that an adequate agency record exists for judicial review. (168) And while there is no defensible reason for employers not to cooperate in TAA investigations, firms often have a knee-jerk reaction to government requests related to employment matters, particularly those involving job loss due to outsourcing of work and offshoring of jobs. (169) Therefore, DOL should do a better job of educating employers on how it is in their best interest to cooperate in TAA investigations. After all, TAA benefits are, in essence, "free severance benefits" that the firm can help obtain for its laid-off workers. At the very least, it is not justifiably against the firm's interests to help laid-off workers obtain TAA benefits. Aside from being a symbol of good corporate citizenship, employees who remain employed by the firm might take notice of how the firm treated the laid-off workers and, consequently, the remaining employees might be more highly motivated to contribute to achieving the firm's objectives. A good place to start de-conditioning employers, with respect to TAA investigations, is at the largest annual conference of human resource professionals sponsored by the Society for Human Resource Management. (170) Another venue for reducing employer resistance to cooperating in TAA investigations is at continuing legal education seminars sponsored by the Customs and International Trade Bar Association, (171) as well as at section meetings of the American Bar Association, such as the Labor and Employment Law, (172) Corporate General Counsel, (173) and International Law sections. (174) The ultimate issue, though, is how to create the right incentive to encourage employer cooperation in TAA investigations. Clearly, firms must be involved in TAA investigations; and they should be the primary source of evidence upon which DOL bases its eligibility determinations. Brooks-Rubin suggests "standardiz[ing] who within the company completes the DOL questionnaire" to increase the credibility of employer responses to DOL's investigative inquiries: [His] suggestion would be to direct all questionnaires to in-house counsel, or if there are none, to the company's outside legal counsel.... [R]eliability depends not only on an individual's credibility, but on her knowledge.... By directing the questionnaires to the company's counsel, with instructions to the attorney to consult with all relevant company departments, DOL can rely on the standards of legal professional ethics in demanding that information be provided in a complete and accurate manner. It is also reasonable to assume that, in most cases, attorneys will research the relevant standards and issues in order to provide DOL with usable answers, rather than guess or provide perfunctory answers. DOL should develop a model cover letter to accompany the questionnaire to the lawyer, directing her to the relevant statutory and regulatory provisions, as well as reference to a compendium of recent CIT and Federal Circuit cases.... ... Placing the questionnaire with in-house or outside counsel, and requiring transparency as to how the company reached its conclusions, will provide DOL with more usable data and analysis. And might enable the company to appreciate the positive public relations that may ensue when workers are certified for TAA. Structuring the process in this manner will also provide the reviewing courts with a clearer sense of what actually happened in the investigation, and whether the investigation was reasonable. (175) The problem, though, is deeper than just who within the firm is obligated to produce evidence. The problem is: while workers have an incentive to produce evidence of their eligibility, they do not possess it; on the other hand, employers possess the evidence to establish eligibility or ineligibility, but do not have an incentive to produce it. (176) Therefore, part of fixing DOL's broken certification process must involve using appropriate "carrots" and "sticks" to create an incentive for employers to produce the evidence they have that the Agency needs to make eligibility determinations. Some ideas for increasing employer cooperation require legislative changes to the TAA Act. One thing DOL could do on its own, without any congressional action, is adopt an evidentiary burden-shifting rule akin to the scheme applied by the Equal Employment Opportunity Commission (EEOC) in employment discrimination cases under McDonnell Douglas Corp. v. Green. (177) When coupled with an improved petition process, by which workers could establish prima facie eligibility for TAA benefits, employers would then be allowed to produce evidence showing that the petitioning workers were not eligible because they lost their jobs for reasons other than increased imports or shifts in production, or because the firm was not engaged in production or was not an "upstream supplier" or "downstream producer." Accordingly, when DOL publishes its notice for comments on certification questions arising under the TAA program, it should announce its intention to adopt an evidentiary burden-shifting scheme similar to the McDonnell Douglas framework. An investigative scheme that puts the burden on the workers' firm to produce rebuttal evidence--coupled with an improved petition process that assists workers to more easily establish a prima facie case that they are eligible for certification--would go a long way in helping DOL carry out its congressional mandate of certifying workers' eligibility for TAA benefits. Such a burden-shifting scheme, in essence, would flip the presumption in favor of workers' eligibility, and away from the current presumption against workers' eligibility, pending employer-produced evidence to the contrary. Most competent HR professionals and in-house counsel should already be familiar with the McDonnell Douglas framework. And taking the burden of production off of workers and putting it on the firm that lays them off makes more sense than DOL's current, haphazard investigative approach, because the workers' firm is in a better position than the workers to know the key facts underlying the bases for DOL's eligibility determination, whether: * increased imports or a shift in production caused the workers' layoffs; and * the firm was engaged in the production of an article; or * the firm was an upstream "supplier" or "downstream producer" under the statute; and it supplied 20% or more of its sales or production to a firm whose workers were certified eligible for TAA benefits; or the loss of business with such a firm contributed importantly to the secondary workers' layoff or threat of layoff. (178) DOL's current investigative approach is also too antagonistic toward workers. (179) It is simply in everyone's best interest to make DOL's investigative process a more dispassionate collection of evidence by the Agency to substantiate if and when workers are not entitled to TAA benefits. (180) Of course, workers can and should produce evidence in support of their eligibility, regardless of whether they are presumed to be entitled to certification or not. But it should be up to the firm that lays workers off to produce sufficient evidence to establish whether or not its former employees are entitled to TAA benefits. If neither the workers nor their firm are able to produce sufficient evidence for DOL to determine their eligibility, a presumption in favor of workers' eligibility would make the Agency's job less difficult, and the certification process would be less adversarial and oppositional to workers' interests. As a result, the Agency would be more likely to carry out the congressional mandate to help workers adjust to job loss and transition to new livelihoods. While there is some risk that such a presumption in favor of workers' eligibility could open the floodgates to TAA applications by ineligible workers, given the reality of today's global marketplace, it is more equitable to presume that workers' job loss is due to expanded free trade than not. Moreover, DOL's eligibility determination would still be based on substantial evidence in the Agency record, and a McDonnell Douglas scheme would likely ensure more and better evidence upon which the Agency bases its determination. (181) B. Legislative Changes Congress should consider amending the TAA Act to correct a structural problem that workers face in TAA cases: a statute that with one hand mandates worker certification for TAA benefits by DOL, (182) and with the other hand eviscerates their right to judicial review of the Agency's decision that denies them certification. (183) Much of DOL's difficulty in carrying out the congressional mandate to certify workers' eligibility stems from its apparent working assumption that petitioners bear the burdens of production and persuasion that they are entitled to benefits under the TAA Act. (184) The changes discussed in the section above are aimed at addressing the root cause of the burden of production problem. But if DOL does not fix its broken certification process as recommended above, Congress should consider amending the TAA Act to create an incentive for employers to cooperate in the Agency's certification process. Both of these legislative changes would require a fundamental overhaul of the TAA Act. Therefore, Congress is more likely to consider less fundamental changes, like those proposed in Senate Bill 122. (185) The 110th Congress will, no doubt, consider that bill, which would amend the TAA Act to extend coverage to service workers and address, superficially, some, though not all, of the TAA Act's shortcomings. (186) 1. Correcting the Inapt Scheme for Judicial Review In each of the cases discussed above and those referenced in the AFL-CIO's Issue Brief, (187) the CIT has expressed great frustration with the Agency's administrative performance, but it has also failed to address why DOL assumes an unnecessarily adversarial stance against workers seeking TAA benefits. Those cases illustrate a seemingly intractable problem: a lack of evidence in the agency record for DOL to determine workers' eligibility, because of the workers' willingness but inability--and their employer's unwillingness or inability--to produce evidence of job loss due to increased imports or shifts in production and other evidence DOL needs to make its eligibility determinations. (188) Consequently, the workers in those cases (the losers) might well have been denied compensation that Congress intended them to have as their end of the quid pro quo bargain for expanded free trade. Before concluding her opinion in the Chevron Products case, Judge Ridgway (189) referenced the politics of a well-administered TAA program--which she said is "touted as the quid pro quo for policies of free trade"--by quoting Senator Max Baucus (D-Mont.) on the importance of TAA for expanded free trade: "[a]n honest, responsible program to address the needs of workers ... who lose their jobs because of trade is perhaps the most important element of a politically viable program to expand trade. If it is ignored, efforts at trade liberalization will ultimately fail." (190) Judge Ridgeway also pointed out, in Chevron Products, the potentially severe human cost of uncompensated-for job loss, and cited a U.S. Court of Appeals case that had noted the equitable purpose of the TAA program: [T]he enactment of the trade adjustment assistance provisions ... reflected Congress' recognition "that fairness demanded some mechanism whereby the national public, which realizes an overall gain through trade readjustments, can compensate the particular ... workers who suffer a loss.... Otherwise the costs of a federal policy [of free trade] that conferred benefits on the nation as a whole would be imposed on a minority of American workers.... (191) Brooks-Rubin suggests some legislative action to fix DOL's broken TAA certification process: In order to preserve adequate safeguards for workers, the number of remands, whether voluntary or courtordered, should be limited to three, and extend no more than eighteen months from the date of the initial petition. Should DOL be unable to complete an investigation deemed reasonable within these limitations, the CIT should be empowered to conduct its own investigation and issue a decision. (192) Brooks-Rubin is right; Congress should address the CIT's power when exercising its authority to conduct judicial review in TAA cases. (193) But the CIT seems to already have the authority to refuse to remand TAA cases--and order certification itself--when a remand would be futile. (194) On two occasions when it has exercised that power, (195) the Federal Circuit has refused to reverse the CIT on grounds that it exceeded its authority by refusing to remand a TAA case to DOL and instead taking matters into its own hands. (196) Congress should, nonetheless, consider re-allocating power among DOL, the CIT, and the Federal Circuit because, as demonstrated above, the apparent confusion over what are the appropriate roles for DOL, the CIT, and the Federal Circuit in TAA cases has made accessing TAA benefits by otherwise eligible workers more difficult for some and impossible for others. (197) By clarifying the appropriate administrative, fact-finding, and law-making roles among DOL, the CIT, and the Federal Circuit, Congress would establish a more suitable scheme for judicial review of agency determinations in TAA cases. (198) But it all starts with the role that DOL assumes. Under a more suitable scheme for judicial review, DOL would be responsible for: (1) effectively investigating workers' petitions; (2) finding determinative facts based on substantial evidence; (3) creating an adequate agency record to permit effective judicial review by the CIT; and (4) making eligibility determinations, and clearly articulating its reasoning, in accordance with law as interpreted by the CIT. If the Agency performed its administrative function reasonably well, then the CIT would properly conduct its judicial review by: (1) upholding the Agency's findings of fact, if they were supported by substantial evidence in the agency record; and (2) upholding DOL's conclusions of law, provided they were clearly articulated and in accordance with law as interpreted by the CIT. In those rare instances when the Agency fails to adequately perform its administrative role, the CIT would remand the case to DOL if its findings of fact were not supported by substantial evidence in the agency record, or, when appropriate, reverse DOL's conclusions of law if in the CIT's judgment: (1) they were arbitrary and capricious; (2) they were not in accordance with law; or (3) a remand to DOL would be futile. Cases would rarely, if ever, make their way to the Federal Circuit if DOL performed its administrative role properly and the CIT was able to conduct a proper review of DOL's negative determinations on an adequate administrative record. Furthermore, the paucity of cases before the Federal Circuit would not be because workers cannot afford to litigate them that far, but rather, only cases in which the CIT got the law wrong would go to the Federal Circuit--if DOL or the workers took them there on appeal. In the extraordinary instance of an appeal to the Federal Circuit, that court would effectively conduct de novo appellate review of the CIT's holdings on matters of statutory interpretation, but would defer to the CIT's judgments on matters of fact and mixed questions of fact and law in accordance with the U.S. Supreme Court's Skidmore and Mead cases, without conducting de novo appellate review. (199) Accordingly, Congress should consider amending the TAA Act to make the scheme for judicial review of DOL determinations more suitable by better allocating power and, hence, clarifying and better delineating the proper roles among DOL, the CIT, and the Federal Circuit in TAA cases. 2. Creating an Incentive for Employer Cooperation Congress should consider creating an incentive for employers to produce evidence of workers' eligibility or ineligibility, especially if the Agency does not adopt an evidentiary burden-shifting rule as suggested above. (200) Congress should consider both carrots and sticks to encourage employer cooperation. One positive approach would be to build onto the trade adjustment assistance for firms (TAA for Firms) program that already exists under the TAA Act. (201) Under the TAA for Firms program, trade-impacted firms--that the U.S. Department of Commerce, Economic Development Agency (EDA) certify as eligible--may receive technical assistance from private consultants through one of eleven Trade Adjustment Assistance Centers (TAACs): TAACs help develop business recovery strategies specific to the needs of each firm, which typically faces adjustments in many areas to compete with lower-priced imports. First, since firms must be experiencing falling sales or declining production to participate, TAACs often focus on marketing or sales strategies to identify new markets, new products, promotional initiatives, and export opportunities. Second, production inefficiencies are corrected to reduce firm costs and improve price competitiveness. Third, TAACs can develop debt restructuring strategies and frequently act as intermediaries in finding new sources of business financing through either government agencies (U.S. Small Business Administration) or private financial institutions. (202) The EDA must certify firms' eligibility if it determines: (A) that a significant number or proportion of the workers in such firm have become totally or partially separated, or are threatened to become totally or partially separated ... (B) that (i) sales or production, or both, of such firm have decreased absolutely, or (ii) sales or production, or both, of an article that accounted for not less than 25 percent of the total production or sales of the firm during the [preceding year] decreased absolutely; and (C) increases of imports of articles like or directly competitive with articles which are produced by such firm contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production. (203) But since Congress only reauthorized the TAA for Firms program in 2002 at an annual funding level of $16 million, relatively few firms are selected by the TAACs to actually receive assistance, despite the program's seemingly outstanding record of performance. (204) In fact, a 1998 study of the TAA for Firms program by the Urban Institute--that "compared changes in employment and sales levels of TAAC-assisted companies before and after certification to changes in these levels ... that were certified as eligible for TAAC assistance but which declined to seek aid under the program"--reported the following successful results: five years after certification, TAAC-assisted companies had survived at higher rates than unassisted companies--83.8 percent of assisted companies compared with 70.7 percent of unassisted companies; had added employees (4.2 percent more, on average), whereas unassisted companies registered average employment losses of 5.3 percent; and had shown stronger sales growth--33.9 percent average total growth in sales for assisted companies compared with 16.2 percent for unassisted firms. (205) The Urban Institute also concluded that the TAA for Firms program: "supported one job for every $3,451 invested, generated $87 in sales for every TAA dollar invested, and yielded an estimated return on investment of 261 to 348 percent." (206) Not surprisingly, among the seven issues raised by the Urban Institute was that few firms that are eligible for assistance actually receive it: Because of the small size of the Congressional appropriation, fewer than 200 firms nationwide are brought into the TAA program annually, a small portion of the firms eligible for assistance. TAAC directors acknowledge that they manage their outreach process so that the number of firms certified is equivalent to the resources available to provide them with technical assistance. (207) Moreover, improving or eliminating the certification process was among the six recommendations the Urban Institute offered to make the TAA for Firms program more responsive to the needs of trade-impacted firms: The certification process ensures that assistance is provided to trade-impacted firms, only, but it extends the time taken to deliver assistance, diverts limited resources, and excludes firms that arguably should receive consideration. The certification process is substantial and exceeds what is required in other [Department of Commerce] programs. Moreover, the legislative requirement that certifications be approved by the Department of Commerce runs counter to the 'reinventing government' trend to devolve authorities and responsibilities to the local level. Fundamental changes will require legislative change. We recommend that [t]he International Trade Commission (ITC) should identify trade-impacted industries, and EDA could accept this identification when they certify firms. Foreign domination of a market, in addition to increase in imports, should trigger program eligibility. The ITC should be responsible for notifying firms of the trade-impacted status of their industry. (208) Although the question of whether or not firms should receive trade adjustment assistance is beyond the scope of this paper, somehow linking firm certification with worker certification could be one avenue for encouraging employer cooperation in DOL investigations. For example, if Congress were to expand the TAA for Firms program, it could also condition firms' eligibility certification on employer cooperation, including requiring employers to file petitions for TAA benefits on behalf of their former employees. Conversely, Congress could use employer cooperation in TAA investigations to trigger eligibility -certification under the TAA for Firms program. In essence, Congress could create linkages between the TAA programs for workers and firms so that when firms got certified under the TAA for Firms program, their workers would automatically get certified for TAA benefits; and when workers got certified for TAA benefits, with help from their former employers, the workers' firms would automatically get certified under the TAA for Firms program. Such a win-win approach by the losers of expanded free trade is the type of carrot that Congress should consider creating to encourage employer cooperation in TAA investigations. (209) Alternatively, Congress should consider flipping the presumption of eligibility in favor of workers--from presuming that workers are not eligible to presuming that they are eligible--to apply for TAA benefits and assessing a financial penalty on employers who fail to produce evidence establishing workers' ineligibility for TAA benefits. (210) Presuming that workers are entitled to TAA benefits unless and until DOL determines that they are not eligible for them--based on substantial evidence in the agency record produced by employers--makes sense as a matter of administrative and judicial efficiency. This is not such a strange or unusual idea, especially when it comes to unemployment (reemployment) benefits. For example, claimants for state unemployment (reemployment) insurance benefits in Minnesota are normally presumed qualified to receive them, unless they are disqualified by having committed some kind of intentional act of "employment misconduct." (211) On the contrary, what is strange is making workers prove that they are entitled to TAA benefits, when they lose their jobs through no fault of their own. So flipping the presumption in favor of workers also makes sense as a matter of fairness. Why not flip the underlying presumption? The main argument against flipping the presumption in favor of workers is that there might be a flood of TAA applicants that the Agency could not stem and, consequently, workers not eligible for TAA benefits would be erroneously certified as eligible. But it might be easier to fix that problem than it is to fix the converse of it (i.e., otherwise eligible workers not being certified), particularly if the burden of producing evidence is effectively shifted to employers and they have an incentive to produce evidence establishing the workers' ineligibility. Accordingly, Congress should consider amending the TAA Act to flip the presumption in favor of workers--from presuming that workers are not entitled to TAA benefits unless and until they prove that they are, to presuming that workers are entitled to TAA benefits unless and until the evidence produced by employers proves that they are not--and impose a financial penalty on employers for failing to produce the contrary evidence. 3. The Trade Adjustment Assistance Improvement Act of 2007 Congress will likely give serious consideration to Senate Bill 122, The Trade Adjustment Assistance Improvement Act of 2007 ("The TAA Improvement Act"), (212) and Senate Bill 1848, The Trade and Globalization Adjustment Assistance Act. (213) The TAA Improvement Act would amend the TAA Act to, inter alia, "provide TAA benefits to three categories of service workers affected by trade ... and would allow for certification of an entire industry for TAA assistance, if the secretary of labor receives a congressional resolution or three or more petitions from the industry." (214) It would also require "that employers certify for accuracy any petition-related information that they submit to the Department of Labor...." (215) Most importantly, by amending 19 U.S.C. [section][section] 2271(a)(1)(A) (216) and 2272 (217) of the TAA Act, the TAA Improvement Act would permit service workers to petition DOL for certification of eligibility to apply for TAA benefits, and would also mandate that DOL certify service workers' eligibility if the Agency determined they lost their jobs: (1) "as a result of competition from imported services, such as a lab technician who might lose an X-ray reading job to a technician at a company in India"; (218) (2) "when a service facility relocates overseas; for example a call center or software designer, and--unlike the current program--even in cases where the overseas operation is not located in a country with a free trade agreement with the United States"; (219) or (3) as "secondary service workers who provide input to a primary firm where workers are eligible for TAA." (220) So far, this paper has not called for expanding the TAA Act to cover service workers (221) but, instead, has offered ideas on how to improve the administration of the existing TAA Act by making certification easier for production workers who lose their jobs due to expanded free trade. Nonetheless, if the TAA Act is broadened to cover service workers in the future (but still not all workers who are laid-off), however the statute is fixed now, it ought to be fixed in such a way that it accommodates future workers who we can reasonably anticipate will some day be covered by a new and expanded TAA Act. (222) In other words, we should fix the TAA Act now so that it is also improved then. Brooks-Rubin's most novel idea for overhauling the statute is to remove the courts from the business of defining "production" in TAA cases by segmenting industries most impacted by trade and introducing what he calls "working group reviews" to define what production means in each segmented sector. (223) Brooks-Rubin is on to something. But his suggested solution is too narrow (224) and too burdensome on the Agency. (225) Industry-wide certification, based on congressional resolution or receipt by DOL of three or more petitions from the industry, (226) however, is a good idea that warrants consideration, because it would increase the Agency's efficiency in certifying eligible workers. Nonetheless, DOL would still need to determine the workers' eligibility using essentially the same broken process that exists now. (227) And while requiring "the accuracy and completeness of any evidence or information submitted by the employer [to] be certified by the employer's legal counsel or by an officer of the employer" might help to fix the Agency's flawed investigative process, it does not go far enough. (228) Accordingly, Congress should amend the TAA Act to cover service workers, and at the same time, Congress should also amend the TAA Act to correct the inapt scheme for judicial review of negative Agency determinations. Moreover, if DOL does not fix its broken certification process on its own, Congress should amend the TAA Act to create an incentive for employers to produce evidence of workers eligibility or ineligibility. V. CONCLUSION The economic rationale for expanded free trade is still the primary justification for the globalization of commercial relations. (229) And even with a blurring of the net economic gains from trade and the increased opposition to further trade liberalization, especially from those hurt by expanded free trade, Americans have vastly benefited from globalization: "[a] careful recent analysis estimates that Americans are a trillion dollars better off, every year, due to the gains from international trade." (230) Another study published by the U.S. Federal Reserve Bank estimates that successfully completing the WTO Doha Round would result in one-time, global welfare gains of $349 billion. (231) But according to I. M. Destler, a renowned expert on American trade politics, while the basic rationale for expanded free trade has not changed, what matters most is how Americans are affected: [T]he argument for further trade liberalization must rest mainly on the additional welfare gains it will bring. These include, of course, gains for people around the world, particularly those in poor nations, and the gains in global stability that enhanced economic interdependence can bring. But the main argument, in US politics, must be the gains it brings Americans. The gains could be substantial. Bradford, Greico, and Hufbauer, applying several methodologies, reach a "conservative" conclusion that "removing all remaining [global] barriers to trade would increase US production by approximately $450 billion to $600 billion annually." Unlike their estimate of past gains of roughly $1 trillion, this comes from trade policy change alone. Any induced technological change or other effects would be icing on the cake. (232) He recognizes that while "[t]he explosion of international trade has been an enormous boon to Americans in general," some American workers have not been adequately compensated for their losses. (233) According to Destler, "[i]n theory, they could be made whole by reallocating one-twentieth of the trade gains." (234) But Destler says, that even with the reforms enacted in 2002 the current TAA program is deficient. (235) "One reason is limitations in its mechanisms: Government-managed retraining courses have a mixed track record at best. A larger reason is that labor displacement directly attributable to trade is hard to isolate from the much larger overall job losses generated by economic and technological change." (236) This paper has recommended and suggested ways to make it easier to certify workers' eligibility for TAA benefits, in part, to overcome the difficulty of isolating trade-related job loss from other causes. Some other concerned Americans have called for stronger worker advocacy in the TAA certification process through legal assistance for workers during the petition process, (237) and greater legal representation for workers to appeal DOL determinations. (238) But injecting more lawyers (and law students) into the current certification process could create an even more adversarial atmosphere--and with it more acrimony, more formality, and longer, more protracted fights between DOL and workers. The TAA certification process needs to be less, not more adversarial. Then, DOL, the Justice Department, workers, their counsel, and the CIT will be spared untold hours of work and, more importantly, workers and their families will be spared the irreparable harm that accompanies prolonged unemployment, which Congress intended to avert through the TAA program. Destler suggests a far grander social compact--for all workers. (239) And others have called for "second-best" polices that would only indirectly, if at all, address the real needs of American workers hurt by further U.S. trade liberalization. (240) My suggestions are tailored to improve the existing primary mechanism for assisting U.S. workers displaced by expanded free trade and to enhance the principal method of compensating them for their losses. DOL should: (1) improve the petition process; (2) conduct more effective investigations; and (3) adopt an evidentiary burden-shifting scheme--because it is the Agency's statutory duty to help workers adjust to trade-related job loss and transition to new livelihoods. By fixing its broken certification process, DOL will more effectively carry out the Congressional mandate of certifying workers' eligibility with greater ease and less wasted resources. DOL should not waste this perfect opportunity. Congress should amend the TAA Act--to re-allocate power among DOL, the CIT, and the Federal Circuit and, if DOL fails to fix its broken certification process, Congress should also create an incentive for employers to cooperate in TAA investigations--because, if the promise of TAA benefits to production workers is kept, they and their representatives will likely be less mobilized against expanded free trade. (241) But the process of creative destruction inherent in capitalism suggests that addressing production workers' concerns is not the end of the story. Service workers are far from immune to job loss due to expanded free trade. (242) Therefore, Congress should also amend the TAA Act to cover service workers. Accepting the notion that it is easier to mobilize political resistance to, and more difficult to mobilize political support for, expanded free trade, (243) improving the primary mechanism for compensating workers for trade-related job loss is necessary for all Americans to realize the net average gains expected from further trade liberalization. Accordingly, the defects in DOL's certification process should be fixed when the TAA program is re-authorized, and the TAA Act should be amended when TPA is renewed. Making TAA benefits more easily accessible to production workers is an important step to take right now. As Judge Ridgway concluded in the Chevron Products case: "[o]nly time will tell whether the Labor Department, and Congress, are listening." (244) Now is the time for the Agency and Congress to listen, and to act. APPENDIX 1 On July 27, 2001, the workers in Tyco Electronics v. Dep't of Labor (Tyco II) petitioned for certification of NAFTA-TAA benefits "based on their belief that their job loss was a result of ... a shift in production of fiber optic components to Mexico." (245) DOL initiated its initial investigation on September 4, 2001, after the Pennsylvania Department of Labor and Industry denied the workers' petition "based on insufficient import information regarding like products and Tyco Electronics' initial survey response." (246) DOL denied the workers certification "on the grounds that imports from Mexico did not contribute importantly to the Former Employees' separation and there was no shift in production to Mexico [and it] found that the predominant cause of work separation was related to a shift in production to an affiliated Tyco Electronics facility in Harrisburg, Pennsylvania." (247) DOL's investigation, before it denied the workers certification, "consisted of one form letter data request sent to Tyco Electronics." (248) The workers reasserted that "their job separation was caused by a shift in production to Mexico" in a motion for reconsideration, but "[b]ased upon additional information provided during a conference call with Tyco Electronics company officials," DOL denied the workers' request. (249) Without counsel, the workers then filed a pro se action with the CIT on January 30, 2002. (250) After the CIT appointed the workers pro bono counsel, they filed a motion for judgment on the agency record, and DOL immediately sought the workers' consent to a voluntary remand "to conduct a further investigation and make a redetermination." (251) On August 7, 2002, the CIT ordered DOL to "conduct a remand investigation and submit remand results by October 7, 2002." (252) DOL missed the deadline set by the CIT. (253) On October 17, 2002, the workers "submitted information to [DOL's] counsel for use in the remand determination [and] [o]n November 12, 2002, [the workers] contacted [DOL] to inquire about the status of the remand investigation." (254) And DOL's lawyer told the workers: "the remand investigation had not started." (255) On November 14, 2002, DOL then filed a motion for leave to submit the remand results late--by January 6, 2003--and, when it was about to miss that deadline, DOL asked the CIT in a second motion on, January 2, 2003, for leave to submit the remand results late--by January 21, 2003. (256) DOL eventually filed the remand results with the CIT on January 17, 2003 (257) and the CIT accepted them, but awarded the workers' court-appointed lawyer attorney's fees of "$7,457.50 for 48.1 hours worked in response to [DOL's] out of time motions." (258) DOL had again denied the workers certification based on its surveys of "two reported major declining customers regarding their purchases of fiber optics during the relevant time period." (259) On February 24, 2003, the workers filed a second motion for judgment on the agency record, asking the CIT to certify them itself or, alternatively, "order an additional remand 'with specific instructions [to DOL] on how to conduct a fair and meaningful investigation.'" (260) The CIT denied the workers' request for certification, (261) but granted the workers' request for a second remand--even though DOL already had taken "four bites at th[e] apple"--in part because DOL's remand investigation was "arbitrary and capricious" due to the fact that it had still failed to consider the information the workers had voluntarily submitted on October 17, 2002, and, therefore, that information had not been made part of the agency record for the CIT to consider. (262) This time, the CIT specifically instructed DOL to address that information. (263) And it also specifically instructed DOL to reassess the incomplete survey responses received from one of the two customers upon which DOL based its negative determination, because it found DOL's "reliance on such incomplete customer surveys to be insufficient to support [DOL's] conclusion." (264) The CIT further instructed DOL generally "to assist the Court in understanding the seemingly contradictory sales information provided by Tyco Electronics for the articles produced at the Glen Rock facility for January-September 2000 and 2001." (265) Finally, the CIT directed DOL not to rely solely on the "unverified statements from an untitled Tyco Electronics company official and the two customer surveys" to support its conclusion that there was only a domestic shift in production to an affiliated plant in Harrisburg, Pennsylvania, but not a shift in production to Mexico. (266) Without considering the contrary information submitted by the workers on October 17, 2002, the CIT warned, DOL's conclusion was "not supported by substantial evidence in the record or otherwise in accordance with law." (267) On July 10, 2003, DOL published the results of its second remand investigation, this time concluding "that there was a shift of production to Mexico that contributed importantly to the worker separations and sales or production declines at the subject facility" and, therefore, it finally certified the workers' eligibility to apply for TAA benefits. (268) But in late August of 2003, the workers were informed by a letter from the Pennsylvania Department of Trade and Labor that they would not receive certain TAA benefits because "the statutory 104-week eligibility period for [them] had expired during the pendency of [the] litigation." (269) The CIT then took extraordinary steps, amounting essentially to supervising a cooperative effort between DOL and the workers to obtain assurances from Pennsylvania that the workers would receive the benefits they were due. (270) Before dismissing the case, Judge Carman "observe[d] that the Department of Labor failed to follow [the] Court's specific instructions on remand," but the Court nevertheless affirmed DOL's certification because the workers were finally satisfied with DOL's determination. (271) (1.) Over the years there have also been plenty of skeptics about the efficacy of the TAA program. See, e.g., Malcom D. Bale & John H. Mutti, Income Losses, Compensation, and International Trade, 13 J. HUM. RES. 278, 283-84 (1978) ("[F]rom the experience of our sample of displaced shoe workers, even if benefits were granted to a larger number of workers, each individual would be compensated for only a very small portion of his actual loss. The actual payments have been characterized by organized labor as band-aid treatment, because the subsequent wage loss as well as the many nonmonetary losses from displacement are not directly addressed.") (footnote omitted); Paul T. Decker & Walter Corson, International Trade and Worker Displacement: Evaluation of the Trade Adjustment Assistance Program, 48 INDUS. & LAB. REL. REV. 758, 772-73 (1995) ("Our findings demonstrate that the [TAA] is currently well-targeted--it serves workers who are permanently displaced from their jobs and who have greater difficulty in becoming re-employed than do similar [unemployed workers] ..., [but they also] suggest that TAA training did not have a substantial positive effect on earnings of TAA trainees, at least in the first three years after the initial [unemployment insurance] claim."). See also I. M. DESTLER, AMERICAN TRADE POLITICS 326-28 (4th ed. 2005) ("[A]id for trade-displaced workers has received lukewarm support where it most matters--from the Department of Labor, which administers the programs, and from the union movement, which has regarded the programs as a second-best alternative to limits on import growth. The 2002 reforms in [TAA] responded to this concern.... Authorized funding for the program was roughly tripled. The pool of eligible workers was expanded--to those whose plants sold inputs to manufacturers hurt by imports and to some of those hurt by shifts of production to other countries.... Yet the results have been disappointing. Worker participation has remained low--about 48,000 workers in 2003.... Participation will surely expand with time, and program advocates have formed a new [TAA] Coalition to speed this process. Just as surely, the TAA program will prove inadequate to the need. One reason is limitations in its mechanisms: Government-managed retraining courses have a mixed track record at best.... [M]oreover, it is a mistake to try. For in welfare terms, the distinction is arbitrary. A displaced worker whose plant moves, downsizes, or restructures because of domestic competition or technological change suffers essentially the same losses as one whose plight can be attributed to imports. If help for trade-impacted workers is appropriate, why not help for all who are displaced from their jobs? They are equally victims of a rapidly changing American economy.") (footnote omitted). See generally U.S. GEN. ACCOUNTING OFFICE, GAO-01-59, TRADE ADJUSTMENT ASSISTANCE: TRENDS, OUTCOMES, AND MANAGEMENT ISSUES IN DISLOCATED WORKER PROGRAMS 4-5 (2000) [hereinafter GAO 2000 REPORT] (reporting that less than 1% of the $1.3 billion in TAA services and benefits payments from 1995-1999 went for job search and relocation assistance and that limited data on TAA and NAFTA TAA program outcomes regarding reemployment and wage maintenance make it difficult to evaluate the program's effectiveness, and identifying "three issues that affect the delivery of assistance to trade-impacted workers: standardizing worker eligibility rules, placing time limits on training enrollment, and improving program administration"); U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-04-1012, TRADE ADJUSTMENT ASSISTANCE: TRADE ADJUSTMENT ASSISTANCE: REFORMS HAVE ACCELERATED TRAINING ENROLLMENT, BUT IMPLEMENTATION CHALLENGES REMAIN 2,4 (2004) (describing implementation difficulties with 2002 TAA program changes, including the new forty day limit for processing petitions, and reporting that states were exhausting TAA funds and using other federal employment and training resources to serve many TAA-eligible workers); U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-06-43, TRADE ADJUSTMENT ASSISTANCE: MOST WORKERS IN FIVE LAYOFFS RECEIVED SERVICES, BUT BETTER OUTREACH NEEDED ON NEW BENEFITS 6 (2006) [hereinafter GAO 2006 REPORT] (recommending, after conducting a study of layoffs at five plants, that the Department of Labor (DOL) provide guidance to state and local unemployment offices to ensure better understanding of TAA benefits among potentially eligible workers). (2.) TEX. WORKFORCE COMM'N, TWC TRADE ADJUSTMENT ASSISTANCE 2002-2003 EXIT COHORT 1 (2004). See also Bale & Mutti, supra note 1, at 278 ("In general, the elimination of trade-distorting devices increases a country's real income. Yet, while significant progress toward reducing trade impediments between industrial countries has been made, many barriers still remain. Why is this the case? Perhaps the most likely reason is that economists have failed to address adequately the problem of income redistribution that accompanies trade liberalization. When a tariff is lowered, consumers benefit, but factors involved in producing domestic substitutes are made worse off. Part of the loss occurs because displaced resources are not immediately absorbed into alternative production. Another loss results because displaced resources may earn less in subsequent employment than before being displaced. Although it is possible for the gainers to compensate the losers, and still end up as gainers, full compensation usually is not provided.") (footnote omitted). (3.) DESTLER, supra note 1, at 295-98 (describing how TAA was central to the 2002 renewal of TPA). (4.) See, e.g., Michael A. Carrier, All Aboard the Congressional Fast Track: From Trade to Beyond, 29 GEO. WASH. J. INT'L L. & ECON. 687, 719-21 (1996) (highlighting the importance of fast track negotiating when other countries lack incentives to negotiate and when there are many countries participating in the negotiating process); Hal Shapiro & Lael Brainard, Trade Promotion Authority Formerly Known as Fast Track: Building Common Ground on Trade Demands More Than a Name Change, 35 GEO. WASH. J. INT'L L. REV. 1, 10-31 (2003) [hereinafter Trade Promotion] (providing an even more thorough review of fast track (trade promotion) authority and describing the renewal of TPA in 2002 in particular). (5.) Carrier, supra note 4, at 687. (6.) See DESTLER, supra note 1, at 305 ("[T]he 2002 combination of TPA and TAA epitomizes the sort of balanced approach that, sufficiently enhanced, could build stronger protrade coalitions in the future."). But see id. at 328 ("[T]he political gains from a separate [TAA] program have clearly diminished. The 2002 reforms built Democratic support in the Senate, but (judging by the final tally) won exactly four converts to TPA out of 210 Democrats in the House of Representatives. For many, TAA is viewed as a backwater government program that gets attention only when an administration needs votes for trade legislation. This may be changing somewhat--several members of Congress have associated themselves with the new monitoring organization. But they are mainly legislators who support trade expansion to begin with. Liberal Democrats who have been voting 'nay' are more concerned with the broader erosion of the social safety net and the rise of economic insecurity among the less welloff generally. For such Democrats, the vision of a much stronger program for displaced workers should have real appeal. It would address the broad distributional costs of the market economy--as their party has sought to do since the Great Depression. It would, at the same time, leave that market economy free to flourish."). (7.) 19 U.S.C. [section][section] 2101-2495 (2000). The TAA program for workers is codified at 19 U.S.C. [section][section] 2271-2331 (2000). (8.) The Court of International Trade (CIT) is a nine member federal trial court with exclusive nationwide jurisdiction over matters involving U.S. international trade and customs laws. United States Court of International Trade, About the Court, http://www.cit.uscourts.gov/informational/about.htm (last visited Dec. 22, 2007). (9.) The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has exclusive appellate jurisdiction over the CIT's judgments. 28 U.S.C. [section] 1295(a) (2000) ("The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction--... (5) of an appeal from a final decision of the United States Court of International Trade...."). See also Rochelle Cooper Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U. L. REV. 1, 4-5 (1989) (viewing the Federal Circuit's "primary claim to technical expertise to be in the patent area" and assessing its effect on the evolution of patent law as well as administrative aspects of specialization). (10.) Long Overdue, Fast Track Finally Passes Into History, PUBLIC CITIZEN, http://www.citizen.org/trade/fasttrack (last visited Dec. 22, 2007). (11.) Mason M. Bishop, Deputy Ass't Sec'y of Labor, Statement on Employment and Training for the U.S. House of Representatives Committee on Ways and Means 3 (June 14, 2007). (12.) See Proposed Labor Department Rules Address Trade Adjustment Assistance Benefit Changes, 23 INT'L TRADE REP. 1284, 1284 (2006) ("The [2002 Trade Act] reauthorized the TAA program through fiscal year 2007, which starts on Oct. 1, 2006."); Rossella Brevetti, Sen. Baucus Urges TPA Renewal With Labor, Enforcement Improvements, 24 INT'L TRADE REP. 37, 37 (2007) ("Senate Finance Committee Chairman Max Baucus (D-Mont.) Jan. 4 called for an extension of [TPA] ... [which] is slated to expire on June 30, 2007[,]" urging that Trade Adjustment Assistance (TAA) be available to "all workers displaced by trade--not just those displaced by free trade agreements.... Baucus and Sen. Norm Coleman (R-Minn.) Jan. 4 introduced a bill to expand and reauthorize the TAA program until 2012."). (13.) See generally Gary G. Yerkey, New Democrat-Controlled Congress Will Be Only 'Slightly' More Anti-trade, Study Finds, 23 INT'L TRADE REP. 1659, 1659-60 (2006) ("[I]n the Senate, therefore, there will be only a 'net loss' for pro-business interests on trade and other foreign policy issues of three seats ... [while] the 'net loss' for pro-trade interests in the House, in fact, was only four seats...."). See also Press Release, Emergency Committee for American Trade, ECAT Trade and Investment Report for the 109th Congress, available at http://www.ecattrade.com/keytrade/ content.asp?ID=658 (showing voting records on trade and investment legislation taken during the 109th Congress). ECAT is a trade lobbyist for major multinational firms. Id.; DESTLER, supra note 1, at 188 ("[T]his organization ... kept a relatively low profile but cultivated congressional power centers skillfully, supplying needed analysis and argumentation and staying alert to the timing of trade action...."). (14.) See Jonathan M. Cooper, NAFTA's Rule of Origin and its Effect on the North American Automotive Industry, 14 NW. J. INT'L L. & BUS. 442, 445 (1994) (defining and articulating the purpose of Free Trade Agreements). The focus of this paper is on free trade in goods and services, even though the free flow of capital and the liberalization of foreign direct investment have also contributed to the integration of the world's economies and the globalization of commercial relations. It makes no attempt to tackle such empirical topics as whether expanded free trade always increases net economic welfare or whether it matters if trade liberalization occurs through unilateral, bilateral, regional, or multilateral agreements. (15.) See, e.g., Arcelia Quitana-Adriano, Legal Mercantile Evolution from the Twentieth Century to the Dawning of the Twenty-First Century, 42 TEX. INT'L L.J. 831, 834 (2007) (listing the "four main aspects for trade liberalization" included in the Havana Charter). See also David Driesen, What is Free Trade? The Real Issue Lurking Behind the Trade and Environment Debate, 41 VA. J. INT'L L. 279, 281 (2001) (addressing the question of "what precisely must trade be free of in order to be 'free' rather than inappropriately shackled?"). (16.) See, e.g., PAUL R. KRUGMAN & MAURICE OBSTFELD, INTERNATIONAL ECONOMICS: THEORY AND POLICY 237-40 (6th ed. 2002) (giving a brief history of international trade agreements). (17.) Tariff Act of 1930, 19 U.S.C. [section] 1654 (2007). The initial aim of the Smoot-Hawley Act was protection of U.S. farmers from falling agricultural prices due to overproduction in Europe following World War I, but it quickly became a free for all for other producers' protectionist interests. U.S. DEP'T OF STATE, SMOOT-HAWLEY TARIFF, 1930, http://www.state.gov/r/pa/ho/time/id/17606.htm (last visited Dec. 22, 2007). See also DESTLER, supra note 1, at 5-6 (describing the political imbalance between "those who benefit from trade protection and those who pay the costs" and detailing how the 1934 system provided "antiprotectionist counterweights [and] devices for diverting and managing trade-restrictive pressures"). (18.) KRUGMAN & OBSTFELD, supra note 16, at 237 ("Such bilateral negotiations helped reduce the average duty on U.S. imports from 59% in 1932 to 25% shortly after World War II."). See also Sung-joon Cho, GATT Non-Violation Issues in the WTO Framework: Are They the Achilles' Heel of the Dispute Settlement Process?, 39 HARV. INT'L L.J. 311, 314 (1998) (observing that U.S. trade agreements after 1935 emphasized bilateral tariff reductions). (19.) World Trade Organization, The 128 Countries That Had Signed GATT by 1994, http://www.wto.org/english/thewto_e/gattmem_e.htm (last visited Dec. 22, 2007). (20.) KRUGMAN & OBSTFELD, supra note 16, at 237-38 (analogizing the GATT approach to a mechanical device designed to push a heavy object gradually up a slope using levers and ratchets). See also Robert Howse, From Politics to Technocracy--and Back Again: The Fate of the Multilateral Trading Regime, 96 AM. J. INT'L L. 94, 95 (2002) ("The postwar trade and financial order was therefore mainly designed to enable states to manage their domestic economies, in a manner consistent with political and social stability and justice, without ... setting off a protectionist race to the bottom."). See generally John H. Jackson, The General Agreement on Tariffs and Trade in United States Domestic Law, 66 MICH. L. REV. 249, 250-51 (1967) ("With the recent completion of five agonizing years of 'Kennedy Round' tariff negotiations under GATT auspices, tariffs for many goods will be reduced to a point where they will no longer be effective barriers to world trade. For this reason, nontariff trade barriers of wide variety and ingenuity are now becoming relatively more significant.") (footnotes omitted). (21.) KRUGMAN & OBSTFELD, supra note 16, at 238-39. (22.) Id. at 238. (23.) Id. (24.) Id. See also Understanding the WTO, WORLD TRADE ORGANIZATION, Feb. 2007, at 16, available at http://www.wto.org/english/tratop_e/tpr_e/tp261_e.pdf ("The Tokyo Round during the seventies was the first major attempt to tackle trade barriers that do not take the form of tariffs, and to improve the system."); DESTLER, supra note 1, at 353 ("The Tokyo Round, also called the multilateral trade negotiations (MTN), differed from previous GATT rounds in its primary focus, which was on reducing and regulating nontariff barriers. It yielded a number of multilateral codes covering, among other areas, subsidies and countervailing measures, antidumping, customs valuation, government procurement, and technical barriers to trade. Participating nations also agreed to substantial further reductions in tariff rates."). (25.) KRUGMAN & OBSTFELD, supra note 16, at 238-39. (26.) See Understanding the WTO, supra note 24, at 18-21 ("It was quite simply the largest trade negotiation ever, and most probably the largest negotiation of any kind in history. At times it seemed doomed to fail. But in the end, the Uruguay Round brought about the biggest reform of the world's trading system since GATT was created at the end of the Second World War."); DESTLER, supra note 1, at 210 (highlighting the importance of "the sheer sweep of the Uruguay Round agreement"). The Uruguay Round agreement included "a comprehensive agreement on trade safeguards, including outlawing of [Voluntary Export Restrictions]; language restraining domestic subsidies, but with a green light for certain government support of research and development; a new General Agreement on Trade in Services (GATS), coupled with modest liberalization commitments in specific service sectors; a substantial new agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS); a major strengthening of dispute settlement procedures, which removed the ability of the party found 'guilty' to block a decision; and the formal establishment of a new, umbrella institution--the World Trade Organization(WTO)--to succeed the GATT." Id. at 209. (27.) See Understanding the WTO, supra note 24, at 9-13 ("There are a number of ways of looking at the WTO. It's an organization for liberalizing trade. It's a forum for governments to negotiate trade agreements. It's a place for them to settle trade disputes. It operates a system of trade rules.... [It's] a place where member governments go, to try to sort out the trade problems they face with each other."). (28.) See DESTLER, supra note 1, at 347 ("Generalized System of Preferences (GSP) [is a] system under which industrial nations give preferential rates of duty on imports from less developed countries without receiving trade concessions in return."). (29.) See William P. Avery, Domestic Interests in NAFTA Bargaining, 113 POL. SCI. Q. 281, 282 (1998) ("The United States had previously negotiated a free trade agreement with Canada in 1988 that generated comparatively much less controversy [than NAFTA] ."). Since 1974, the United States has implemented bilateral and regional free trade agreements with the following other countries: Israel, Chile, Singapore, Australia, Morocco, Dominican Republic, Costa Rica, El Salvador, Honduras, Guatemala, and Nicaragua, Bahrain, Oman, and Jordan. CAROLYN C. SMITH, TRADE PROMOTION AUTHORITY AND FAST-TRACK NEGOTIATING AUTHORITY FOR TRADE AGREEMENTS: MAJOR VOTES, CONG. RESEARCH SERV. 4-6 (2006), available at http://fpc.state.gov/ documents/organization/75260.pdf; WTO Secretariat, TRADE POLICY REVIEW: UNITED STATES, 16-23, WT/TPR/S/160 (Feb. 15, 2006), available at http://www.wto.org/english/ tratop_e/tpr_e/s160-2_e.doc. (30.) DESTLER, supra note 1, at 65. From the Reciprocal Trade Agreements Act of 1934 through the Trade Expansion Act of 1962, the means by which Congress delegated authority for trade negotiations remained basically the same. Successive statutes authorized executive officials to negotiate ... reductions in US tariffs, in exchange for reductions by US trading partners. When a deal was finally struck, it could be implemented by presidential proclamation, without further recourse to Capitol Hill. For American trade negotiators, this arrangement had enormous advantages. It gave them maximum credibility abroad, since their power to deliver on their commitments was not in doubt. It also increased their leverage with affected industries at home. Id. at 71. (31.) See infra note 34 and accompanying text. (32.) Howse, supra note 20, at 99 (footnote omitted). See also DESTLER, supra note 1, at 41-63 (explaining the political imbalance between free trade winners and losers, discussing how the 1970s and 80s exposed the U.S. economy to greater foreign competition, due mostly to the breakdown of the Bretton Woods system of fixed exchange rates, and how it left the U.S. economy "more exposed to world trade [but] also comparatively less well off," and explaining why the "erosion of the [GATT's] bedrock principle of nondiscrimination ... weakened one important postwar source of leverage in domestic trade bargaining: the argument that a particular restrictive action would undercut the international trading system from which the United States derived great benefits[;]" consequently, "as successive presidents found themselves embattled with economic woes, they had less leeway to press market-opening measures at home, and felt more pressure to restrict imports or to demand that US trading partners buy US exports"). (33.) Howse, supra note 20, at 99. (34.) See DESTLER, supra note 1, at 65--66 ("By delegating responsibility to the executive and by helping fashion a system that protected legislators from one-sided restrictive pressures, Congress made it possible for successive presidents to maintain and expand the liberal trade order."). See also id. at 23 (explaining that the TAA allowed "[w]orkers or firms hurt by imports [to] apply for government ... assistance"). (35.) See, e.g., id. at 233-52 (discussing the decline of traditional protectionism, and noting that "the major new challenges to trade liberalization were the rising concerns over the impact of trade on labor and the environment, and the deepening of partisanship in Washington"). See also id. at 253-77 (explaining new issues and policies on American trade undertaken during the Clinton era). (36.) Id. at 262-71. (37.) See Howse, supra note 20, at 101-16 ("It was not until the 1970s that the embedded liberalism bargain came under sustained stress.... The multilateral rules of the game had enabled Germany and Japan, America's wartime enemies, to compete successfully in the U.S. market for industrial products; they had also enabled the newly industrial |