Bordering on Opportunity: The 2008 U.S. Elections and the U.S.-Canada Border

Bordering on Opportunity: 

The 2008 US Elections and the U.S.-Canada Border 

 

Remarks as prepared for delivery by

 

Christopher Sands

Senior Fellow, Hudson Institute

Washington, DC

 

Given at

 

After the 2008 US Presidential Election: Opportunities for Canada? 

Canadian International Council Foreign Policy Conference 2008

Toronto

June 19-20, 2008

 

Thank you, Ambassador (Michael) Kergin for that introduction and for including me on the panel. I also want to thank CIC President Doug Gould for the invitation to be here today.

 

In the U.S. midterm elections in November 1994, voters in the United States elected a Republican majority in the House of Representatives led by Newt Gingrich, and voters in California approved Proposition 187 which denied public services to illegal immigrants in that state. Proposition 187 was challenged in court and never took full effect, but it placed immigration squarely on the national agenda, where it remains today.

 

One consequence of the charged atmosphere surrounding immigration in the United States after the 1994 election was the tougher language in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act that included a provision, an amendment to section 110 of the Immigration and Naturalization Service statute, which required that a record be kept of every person who exits or enters the United States.

 

This sparked a strong reaction in Canada, where the Chrétien government and of course many others worried about the impact that Section 110 would have on border traffic. A series of bilateral dialogues on the future of the border followed: the Shared Border Accord, the Border Vision Initiative, the Cross-Border Crime Forum, and the Canada-US Partnership (CUSP) to name only the most significant. These in turn led to the Smart Border Declaration and Action Plan that Ambassador Kergin and then-Deputy Prime Minister John Manley proposed to the Bush White House in the wake of the September 11, 2001 terrorist attacks.

 

So, elections have consequences and create both problems and opportunities. While no one would have foreseen the tragedy of September 11 coming prior to the November 2000 presidential elections, many people who had been closely following border issues might have been able to identify the issues and opportunities for a better US-Canada border even then.

The same can be said with regard to the border that an Obama or McCain administration will take responsibility for safeguarding in January 2009. Have we learned anything from the intense border policy debates since 2001? And what are the main areas of potential change to watch for in the next administration?

 

Distinguishing Transitional versus Actual Border Problems 

 

The first lesson I would hope that we can take from our recent experience coping with the border in both countries is that all border problems are not the same. Some problems are transitional: delays and inconvenience caused by the introduction of new infrastructure, personnel, computer systems, inspection devices, and procedures.

 

I sometimes compare this type of problem with my recent experiences with Pearson Airport here in Toronto. During the construction of new terminals, it was a pain in the neck to fly to Pearson, or to make a connection here. There were long walks, buses, lost luggage, and nightmare lines at U.S. Customs pre-clearance as well as occasional problems at the Canada Customs arrival area.

 

But when the construction finished, the hassled diminished. In part this was because we were forced to learn how to navigate the airport in new ways, and in part the facilities now made that navigation easier.

 

The other type of border problem is an actual border problem, one that is not in transition to getting better on its own.

 

I would argue that in recent years we have spent far too much time fighting over transitional problems, perhaps not recognizing them as such, and wasted energy and political capital that ought to have been devoted to actual problems.

 

For example, the U.S. passport requirement, which does pose risks and cause hassles for many people, is a transition problem; it will ease when more travelers have passports and make a habit of taking them with them when they cross the border. The Agriculture and Plant Health Inspection Service or APHIS fee tagged onto our plane tickets is an actual problem; it will raise ticket prices and may one day even be raised, but does not sunset and appears to now be permanent.

 

Recognizing Format Wars 

 

A second lesson I think we should take from the border battles of recent years is that deepening economic integration has not only brought Canada and the United States closer together, it has also given rise to a new kind of challenge for bilateral diplomacy that is unlike anything we had seen, and which calls for a different kind of strategy in response.

 

During the 20^th century, the majority of problems that the United States caused Canada could be grouped into two categories: unintentional and intentional actions.

 

Often a new rule or tariff imposed by Congress or a U.S. administration hit Canadian trade, but was actually aimed at Japan or Europe. Sometimes a domestic policy change would cause collateral damage to Canadian interests unbeknownst to U.S. policymakers.

 

These were unintentional actions taken by U.S. policymakers. Canada’s strategy in response was to seek an exemption to the new rule. Most of the time, this worked.

 

In other cases, Canada was among the intended targets of a U.S. policy change. To deal with these kinds of nasty surprises, Canadians pursued a rules-based order with the United States that led us to treaties such as the Canada-US Free Trade Agreement and NAFTA that would limit Canada’s vulnerability to U.S. action or at least to offer a chance at redress through dispute resolution mechanisms.

 

In the 21^st century, however, we have started to see a different kind of problem. Policymakers in the United States may act to set rules for the domestic US economy, and due to the level of close integration between our two countries, this domestic measure affects Canada and the U.S. has neither consulted Canada nor will it necessarily reverse course in response to Canadian petitions. I refer to these as format changes, and in the bilateral context they can lead to format wars.

 

The best example of this in recent years was the decision of the U.S. Congress to change the dates when we begin and end Daylight Savings Time in the United States. No one consulted Canada before doing this, and yet Canadians had to change their clocks along with Americans.

 

Two other format changes help to illustrate the nature of this problem more seriously: the U.S. decision to change the documentation format required from U.S. citizens returning to the country, and a hotly debated change the acceptable format for oil purchased by the U.S. government to a higher standard of oil with lower carbon content (Section 526 of the Energy Independence and Security Act of 2007).

 

The border documentation format change will simplify inspections at the border, since in the United States alone more than 6,000 government entities were responsible for producing birth certificates and it was difficult to spot forgeries or to verify information. Reentry by U.S. citizens from most countries required that they present a passport, but a return from a handful of countries in the Western Hemisphere was permitted with birth certificates and a government issued photo i.d., usually a driver license. The U.S. has led an international effort to improve the standard for passports issued by all countries, to make them more secure and harder to forge; the Government of Canada is upgrading the passports it issues on schedule.

 

With all this, it only makes sense to change the format for border crossing documentation to make it consistent and more reliable. The National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission) recommended a standard format, and Congress agreed with a legislative mandate enacted in 2004, to be implemented by 2008. But Congress also funded a Western Hemisphere Travel Initiative to address problems during the transition to the new standard, and provided for an option for a secure travel document that is not a passport, but just as good; they left it up to regulators in the U.S. government to define the standard for a secure travel document, and to figure out how to issue them.

 

The format change for U.S. government oil purchases is based on a calculation of “life-cycle” estimates of the carbon content of energy sources. Life-cycle estimates include the carbon input to produce the energy as well as to use it, and to manage any attendant waste products. Farm equipment and agricultural land use add to the carbon content of ethanol, which is otherwise cleaner to burn than regular gasoline, but oil may not require as much carbon to produce. 

 

Congress left it up to the executive branch, and the regulators of the Environmental Protection Agency (EPA) to define the life-cycle standards for measuring carbon content. Depending on what the EPA decides, the oil from Alberta’s oil sands could be graded acceptable or unacceptable based on the new standard, affecting billions of dollars in investment.

 

Yet it can hardly be argued that the U.S. Congress does not have the authority to place conditions on federal purchases for which it appropriates funding. As with setting standards for border crossing documentation, it is the close integration of the U.S. and Canadian economies that exposes Canadians to the consequences of such decisions to a greater extent than ever before.

 

It is only the complete lack of political integration that leaves Canadians without a voice in these decisions. So, how should Canada cope?

 

The answer may be a rules-based order that provides for coordination, but allows each of the three sovereign governments to act according to its own constitutional arrangements.

 

Managing Relationships in Changed Circumstances 

 

An exemption strategy would not be very satisfying in most cases. Although Canadians are only indirectly affected by the passport requirement, the U.S. Congress cannot exempt Canadians, unique among the peoples of the world, from a passport requirement it is prepared to place on its own citizens.

 

And what about a rules-based order? Well, the “rules” authorizing Congress to set standards for government procurement of oil are found in Article 1 of the U.S. Constitution, which grants Congress authority over public spending.

 

Unlike other arrangements for governing economic integration such as the European Union model, the North American countries chose not to create supra-national institutions. Instead, they reserved their national sovereignty to themselves and opted to negotiate on the coordinated exercise of constitutional authority in each country in order to get things done.

 

In practice since 2005 this has meant coordinating through the Security and Prosperity Partnership of North America, also known as the SPP. The SPP features twenty working groups that bring together officials from all three governments. There are ten SPP working groups to address security issues, and ten for economic issues. Each working group is co-chaired at the assistant deputy minister level (the equivalent to the assistant secretary level in the U.S. system) by a representative from the civil services of Canada, Mexico and the United States.

 

Dwight Eisenhower once famously said, “In the heat of battle, I have often found plans to have been useless; but planning, to be invaluable.” The process of planning helps all participants to understand better the capabilities and constraints of the others, and to learn “who’s who” among their counterparts working on an issue. I believe that the contact among regulators and civil service professionals within the SPP working groups is perhaps the greatest benefit to the SPP overall. We are developing a greater appreciation for one another’s limitations and potential, and our officials are getting to know one another, exchanging cell phone numbers and email addresses. When, in the future, we come to a crisis and must figure out how to resolve it together, these relationships will help our officials to work together better.

 

Overseeing the twenty working groups are cabinet level co-chairs who report directly to the heads of government on progress, and push the working groups to conclude discussions in a timely manner. Canada’s cabinet level participants are the ministers of Foreign Affairs, Public Safety, and Industry. They meet annually with their U.S. and Mexican counterparts to review progress and set targets for delivery at annual summits of the Canadian prime minister with the U.S. and Mexican presidents.

 

At the cabinet and head-of-government levels, working relationships are developed as well, and these are beneficial to resolving problems and also for putting issues of concern onto one another’s agendas.

 

The SPP is also a source of some of the best available intelligence on the priorities and concerns of other parts of each government. Is Congress considering new legislation that would affect Canada or Mexico? U.S. officials in the relevant departments and agencies will be keenly aware of this, and can advise their counterparts on how likely Congress might be to act; not a sure thing, even when congressional rhetoric is at a fevered pitch.

 

If Congress does act, as it did on the question of Daylight Savings Time, it generally sets a legislative mandate but directs the executive administration to translate this into rules and regulations that can be enforced.

 

Here, too, the value of the SPP for Canada and Mexico is difficult to overestimate. With sympathetic and knowledgeable interlocutors among U.S. federal regulators, it can be easier to mitigate the effects of transitional problems and perhaps even to begin negotiations on the elimination of actual problems.

 

However, the SPP is potentially most useful of all for addressing the format changes mentioned earlier. New formats are often defined most clearly in rulemaking by regulators, whether they are responsible for parts of the economy or for protecting citizens.

 

McCain or Obama and a Democratic Congress 

 

There is generally more continuity than discontinuity between U.S. administrations. New presidents typically bring a change in emphasis and style, but the substance – the problems that the United States faces and the options open for addressing them – remains the same. This is not an election principally fought over how to manage U.S.-Canada relations, and apart from concerns over the U.S.-Mexico border, border issues have not been part of the campaign rhetoric thus far.

 

This is important to keep in mind no matter who wins in November: expectations for change will be high in both the United States and in Canada (after all, both candidates are running on the theme of “change”) but these will probably overshoot what the next president will be able to do.

 

One prominent issue in the campaign for which reality will certainly trump rhetoric is the status of NAFTA. Senator Obama has called for raising labor and environmental standards, and threatened to withdraw from NAFTA unless he gets the changes he seeks from the Canadian and Mexican governments. This boast reveals Obama’s inexperience with North American relations; it is not necessary to put a gun to the heads of U.S. neighbors to get their attention, nor to get them to talk to you.

 

More practically, the SPP provides a process through which the changes that Senator Obama wants can be obtained, through negotiations among regulators in all three countries. In 2006, at the urging of Prime Minister Harper, President Bush and then-President Fox the business community formed the North American Competitiveness Council (NACC), with three national sections, each of which solicits input from business leaders and proposes agenda items for the SPP working groups to tackle. NACC sections can ask for updates on the status of talks from their national leaders, and even receive briefings from working group co-chairmen from their respective countries. They are outside the process, but have a front row seat and can make their voices heard by the participants.

 

An Obama administration might propose that a North American Environmental Council be formed with three national sections made up of environmental advocates and NGOs, and a similar North American Labor and Human Rights Council be formed with three national sections of civil society and labor union representatives.

 

In fact, President Obama might even call upon the North American Commission on Environmental Cooperation in Montreal and the North American Commission on Labor Cooperation in Washington to convene and support these new Councils – these two institutions established by the NAFTA side agreements added by President Clinton have not been engaged in the SPP, and should be.

 

Of course, a McCain administration could do the same thing. As unexpected as the SPP was for many of us in March 2005, it will be viewed by historians as one of the most important foreign policy legacies of the second term of President George W. Bush (after the famous “surge” in Iraq, perha