Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties Page: 2 of 6
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later extended to April 15, 1994, in order to complete the GATT Uruguay Round (P.L.
100-418, 1102, 19 U.S.C. 2902, as amended by P.L. 103-49). The OTCA also
provided that NTB agreements negotiated under the statute could not enter into force for
the United States unless, among other things, the agreements were submitted to Congress
along with an implementing bill and the bill was enacted into law (P.L. 100-418, 1103,
19 U.S.C. 2903). Such legislation was entitled to so-called fast track or expedited
consideration, the expedited procedures being set forth in 151 of the Trade Act of 1974,
19 U.S.C. 2191. Section 151(a) defines "implementing bill" as a bill that contains: (a)
a provision approving the agreements; (b) a provision approving the statement of
administrative action that the President must send to Congress along with the agreements;
and (c) if changes to existing laws are needed, provisions "necessary or appropriate to
implement such trade agreement or agreements, either repealing or amending existing
laws or providing new statutory authority."' It is the provision approving the agreements
that makes the Uruguay Round agreements, and previously the NAFTA and other free
trade agreements and GATT-related agreements, congressional-executive agreements.
Development of the Statutory Trade Agreements Program. The trade
agreement authorities and requirements embodied in the OTCA reflect a congressional
approach to international trade policy that evolved over a number of years.2 As early as
1890, Congress delegated tariff bargaining authority to the President and authorized him
to suspend existing duty-free treatment on particular items by proclamation. The Supreme
Court subsequently held that the authorizing statute, 3 of the Tariff Act of 1890, 26 Stat.
612, did not unconstitutionally delegate either legislative or treaty-making authority to the
President.3 In the Reciprocal Trade Agreements Act of 1934, as amended and extended,
The negotiation, entry into, and implementation of trade agreements implicates the President's
Article II authority to negotiate treaties and international agreements and to conduct foreign
affairs (see United States v. Curtiss-Wright Export Corp., 299 U.S. 319 (1936)) and Congress'
express power to impose duties and tariffs and to regulate foreign commerce (U.S. Const., Art.
I, 8, cls. 1, 3). Because of Congress' express power in the area, the President may not impose,
reduce, or effect any other change in existing duty rates through an executive agreement unless
he has been delegated the authority to do so by Congress. See United States v. Yoshida Int'l Inc.,
526 F.2d 560, 572 (C.C.P.A. 1975)("no undelegated power to regulate commerce, or to set tariffs,
inheres in the Presidency")(emphasis in the original); United States v. Guy W. Capps, Inc., 204
F.2d 655, 660 (4th Cir. 1953)("Imports from a foreign country are foreign commerce subject to
regulation, so far as this country is concerned, by Congress alone."). Regarding the President's
authority to enter into agreements involving foreign commerce, see Consumers Union of U.S.,
Inc. v. Kissinger, 506 F.2d 136 (D.C.Cir. 1974), cert. denied, 421 U.S. 1004(1975)(mandatory
or enforceable, but not voluntary agreements limiting exports to the United States are superseded
by trade laws).
2 The use of the congressional-executive agreement in the trade area has been viewed as a
recognition of the House's constitutional role in revenue raising. American Law Institute,
Restatement (Third) of the Foreign Relations Law of the United States 303, Reporters' Note 9
(1987). Senate deference to the use of the congressional-executive agreement for the Uruguay
Round agreements may arguably be inferred from its 76-16 vote to amend the OTCA to extend
the date by which the President could enter into the agreements pursuant to this statute, the yeas
constituting more than two-thirds of that body. 139 Cong. Rec. 14805 (1993).
3 Field v. Clark, 143 U.S. 649 (1892). In denying a motion for a temporary restraining order
against tariff reductions on electronic equipment, the U.S. Court of International Trade ruled that
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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/m1/2/: accessed January 23, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.