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Tuesday, November 8, 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.

Congress most recently granted the President 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 110th Congress, agreements entered into before July 1, 2007, remained eligible for congressional consideration under the expedited procedure. The President had entered into free trade agreements with Colombia, Korea, and Panama before this date, each of which awaited congressional approval at the time. In October 2011, Congress approved the three pending agreements, making a total of 11 free trade agreements approved under the BTPAA process.

In addition, the United States Trade Representative (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. Notwithstanding the expiration of BTPAA authorities, 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 (11th Cir. 2001)). The U.S. Supreme Court denied review in the case. 

S. 98
(Portman) would amend §2103 of the BTPAA, 19 U.S.C. §3803, to authorize the President to enter into trade agreements with foreign countries on or after the date the bill is enacted into law and before July 1, 2016, with a possible extension of this authority through June 30, 2018. The bill would in effect permit implementing legislation for agreements covered by the bill to be considered under expedited legislative procedures. S.Amdt. 626 (McConnell), an amendment to H.R. 2832, would amend the BTPAA to provide trade promotion authority for the Trans-Pacific Partnership Agreement and other trade agreements entered into before June 1, 2013, extendable to December 31, 2013. While H.R. 2832 was enacted into law (P.L. 112-40), the proposed amendment was not adopted.

Date of Report: November 3, 2011
Number of Pages: 9
Order Number: 97-896
Price: $19.95

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