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Thursday, February 3, 2011

Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties

Jeanne J. Grimmett
Legislative Attorney

U.S. trade agreements such as the North American Free Trade Agreement (NAFTA), World Trade Organization agreements, and bilateral free trade agreements (FTAs) have been approved by majority vote of each house rather than by two-thirds vote of the Senate—that is, they have been treated as congressional-executive agreements rather than as treaties. The congressional-executive agreement has been the vehicle for implementing Congress’s long-standing policy of seeking trade benefits for the United States through reciprocal trade negotiations. In a succession of statutes, Congress has authorized the President to negotiate and enter into tariff and nontariff barrier (NTB) agreements for limited periods, while permitting NTB and free trade agreements negotiated under this authority to enter into force for the United States only if they are approved by both houses in a bill enacted into public law and other statutory conditions are met; implementing bills are also accorded expedited consideration under the scheme.

The President was most recently granted temporary trade negotiating authority utilizing this approach in the Bipartisan Trade Promotion Authority Act of 2002 (BTPAA), contained in Title XXI of the Trade Act of 2002, P.L. 107-210. Although the authority expired during the 110
th Congress, agreements entered into before July 1, 2007, remain eligible for congressional consideration under the expedited procedure. Implementing bills for eight FTAs were signed into law under the 2002 act; agreements with Colombia, Panama, and South Korea remain pending.

Implementing legislation for the U.S.-Colombia agreement was introduced in April 2008 (H.R. 5724, 110
th Congress), but House leadership considered that President Bush had submitted the bill without sufficient coordination with Congress, and the House subsequently voted to make key procedural rules for expedited consideration inapplicable to the legislation (H.Res. 1092, 110th Congress). In June 2010, President Obama announced that, after certain outstanding issues involving the Korea-U.S. (KORUS) FTA were resolved, he intended to present Congress with an implementing bill for the agreement “in the few months” following the G-20 meeting to be held in Seoul in November 2010. The United States and Korea reached agreement on these issues on December 3, 2010. The United States Trade Representative (USTR) reportedly stated on January 13, 2011, that the Administration is aiming for a congressional vote on the KORUS FTA before July 1, 2011.

In addition, the USTR, on behalf of the President, notified the House and Senate in December 2009 by letter that the President intended to enter into negotiations aimed at a regional, Asia- Pacific trade agreement, known as the Trans-Pacific Partnership (TPP) Agreement. Although the trade agreement authorities of the BTPAA have expired, the USTR has stated the Administration was observing the relevant procedures of the act with respect to notifying and consulting with Congress regarding these negotiations.

A federal appeals court held in 2001 that the issue of whether the NAFTA should have been approved as a treaty was a nonjusticiable political question (Made in the USA Found. v. United States, 242 F.3d 1300 (11
th Cir. 2001)). The U.S. Supreme Court denied review in the case.

Date of Report: January 19, 2011
Number of Pages: 10
Order Number: 97-896
Price: $29.95

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