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 February 8, 2005
CRS Report for Congress
Received through the CRS Web
Why Certain Trade Agreements Are Approved
as Congressional-Executive Agreements
Rather Than as Treaties
Jeanne J. Grimmett
American Law Division
Trade agreements such as the NAFTA, the World Trade Organization 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'
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 mandating that NTB and free trade area agreements negotiated under this
authority could enter into force for the United States only if approved by both Houses
in a bill enacted into public law and other statutory conditions were met. The President
was most recently granted temporary trade agreement negotiating authority utilizing this
approval procedure in the Trade Act of 2002 (P.L. 107-210). FTAs with Chile,
Singapore, Australia, and Morocco were legislatively approved and implemented under
Trade Act procedures in the 108th Congress. The President's negotiating authority under
the act will expire in mid-2005 unless extended; the President must request an extension
from Congress by April 1, 2005. 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 in the case. 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
tariff and nontariff trade barrier (NTB) agreements until June 1, 1993, authority that was
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Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties, report, February 8, 2005; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc821297/m1/1/: accessed October 16, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.