Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties Page: 4 of 6
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CRS-4
vote on their approval and on legislation necessary or appropriate to implement them.
Because of the complexities of multilateral negotiation, Congress sought to provide the
President with a sound negotiating posture by providing that it would consider trade
agreement implementing legislation submitted under the terms of the statute (including
requirements that the President notify and consult with Congress) within a prescribed
period of time and without amendment.6
The fast-track procedure in the 1974 Act was first used with respect to the GATT
Tokyo Round Agreements, which were approved and implemented in 1979 (P.L. 96-39).
Temporary statutory authority for bilateral free trade agreements (FTAs) was added in the
Trade and Tariff Act of 1984 (P.L. 98-473, 401) and was again provided for in the
OTCA. Congress approved bilateral FTAs with Israel and Canada, the NAFTA, and the
GATT Uruguay Round agreements under one or the other of these authorities (P.L. 99-47,
P.L. 100-449, P.L. 103-182, P.L. 103-465). The FTA with Jordan was statutorily
implemented in 2001, though not under a fast-track authorizing statute and without an
express approval provision (P.L. 107-43).
Renewed trade negotiating authority was granted the President in Title XXI of the
Trade Act of 2002, P.L. 107-210. Expedited approval procedures apply to implementing
bills for trade agreements entered into before July 1, 2007; the President was also required
to notify Congress at least 90 days before he entered into an agreement.7 Title XXI
s Modifying an Administration proposal, the House in 1973 approved legislation that would have
authorized the President to negotiate tariff and nontariff barrier (NTB) agreements for a given
period. Once the agreements were concluded, the President would submit them to Congress
along with any needed draft implementing orders and proclamations. The agreements and orders
and proclamations would become law (thus superseding inconsistent prior statutes) provided
neither House had passed a resolution of disapproval by majority of those present and voting
within 90 days. See H.Rept. 93-571, at 6, 23-34, 41-42. The Senate, whose Finance Committee
viewed the veto approach to be of doubtful constitutionality, prevailed in the adoption of the
current requirement for two-House legislative approval of NTB agreements and enactment of
implementing legislation on a fast-track basis. See S.Rept. 93-1298, at 14-15, 22, 76, 107.
Objections to the one-House veto procedure had also been raised earlier in dissenting views in
the House report. H.Rept. 93-571, at 199. The Supreme Court eventually held legislative vetoes
unconstitutional in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
6 S.Rept. 93-1298, at 77, 107. While these agreements could be submitted to the Senate as
treaties (see H.Rept. 93-571, at 24; S.Rept. 93-1298, at 86), neither the agreements nor their
implementing legislation would be entitled to expedited legislative consideration. Moreover,
while the House would have a role in approving any implementing legislation, it would not
expressly approve the agreements, that is, it would not vote on whether the United States should
accept the international obligations therein. The United States has assumed trade obligations in
treaties, specifically its bilateral friendship, commerce and navigation (FCN) treaties, which
require parties to accord most-favored-nation tariff treatment and other trade benefits to each
other's goods. With the conclusion of many bilateral tariff agreements under reciprocal trade
agreements legislation, the development of GATT agreements, and the entry by the United States
into WTO and free trade agreements, trade obligations between the United States and its trading
partners are now primarily defined by these more recent undertakings.
The procedures, referred to in the Trade Act as "trade authorities procedures," originally applied
to bills for agreements entered into before July 1, 2005, but could be extended to bills for
agreements entered into before July 1, 2007, if the President requested an extension and neither
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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/m1/4/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.