Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties Page: 1 of 6
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Order Code 97-896
Updated January 3, 2008
CRS Report for Congress
Why Certain Trade Agreements Are Approved
as Congressional-Executive Agreements
Rather Than as Treaties
Jeanne J. Grimmett
Legislative Attorney
American Law Division
Summary
U.S. trade agreements such as the North American Free Trade Agreement
(NAFTA), World Trade Organization (WTO) agreements, and bilateral free trade
agreements (FTAs) have been approved by majority vote of each House of Congress
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 authorized the President to negotiate and enter into
tariff and nontariff barrier (NTB) agreements for limited periods, while permitting NTB
and free trade agreements (FTAs) negotiated under this authority to enter into force for
the United States only if they were approved by both houses in a bill enacted into public
law and other statutory conditions were met. The President was again granted temporary
trade negotiating authority utilizing this approval procedure in the Trade Act of 2002
(P.L. 107-210); the authority applied to agreements entered into before July 1, 2007.
Implementing bills for eight FTAs have been signed into law under the act. While
agreements with Colombia, Panama, and South Korea were entered into before July 1,
2007, implementing legislation has not yet been introduced. A federal appellate court
held in 2001 that the issue of whether the NAFTA should have been approved as a treaty
rather than as a congressional-executive agreement was a nonjusticiable political
question; the U.S. Supreme Court denied review. This report will be updated.
Statutory Authority for Trade Agreements. The broad-gauged trade
agreements entered into by the United States in the 1990's - the North American Free
Trade Agreement (NAFTA), the World Trade Organization (WTO) Agreement, and the
multilateral WTO agreements that a country must accept as a condition of WTO
membership - were negotiated by the President and submitted to Congress under the
terms of the Omnibus Trade and Competitiveness Act of 1988 (OTCA) and the Trade Act
of 1974. The OTCA provided the President with authority to negotiate and enter into
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Grimmett, Jeanne J. Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties, report, January 3, 2008; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc821198/m1/1/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.