Saturday, April 30, 2011

More on Congressional-Executive Agreements

Many thanks to Brenda Jacobs of Sidley Austin who sent me some additional background on Congressional-Executive Agreements as a tool for implementing free trade agreements. This relates to to a previous post in answer to a question about how the pending FTA's might get implemented if President Obama lacks Trade Promotion Authority (FKA "Fast Track").

Brenda sent on a Congressional Research Service document answering the question "Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties." The document explains that Congress has previously granted the President temporary trade negotiating authority. The most recent authority under the Bipartisan Trade Promotion Authority Act of 2002, though, has expired. Trade agreements negotiated under that authority, including agreements with Colombia, Panama, and South Korea, remain eligible for approval under the TPA process (although Colombia is not subject to expedited procedures because because the bill was submitted without required coordination with Congress). That process relies on an implementing bill sent to both houses of Congress for approval by a majority vote. The Senate's treaty ratification process is not involved. This leaves open the status of the Trans-Pacific Partnership, negotiations for which began in 2009, after TPA expired.

The legal background on this relates to the constitutional delegation of authority to Congress of the power to regulate trade with foreign nations. This proved unwieldy. Letting every member of the House and Senate have input to the terms of a trade deal would make negotiating difficult. Plus, would the trading partner have faith that the agreement it reached with some negotiators survive the legislative process. If not, it would come back to Congress for amendments and the process might go on for ever. As early as 1890, Congress decided to delegate its negotiating authority to the President. Subsequently, the Supreme Court upheld this delegation as constitutional. Most recently, a challenge to the constitutionality of the NAFTA was defeated when the 11th Circuit declared the questions to be a non-justiciable political question.

Through various statutory delegations, the President has negotiated and Congress has approved the GATT, the NAFTA, and the Uruguay Round WTO Agreement.

So, all of that dances around the question that was originally posed: What procedure will be used to if the Trans-Pacific Partnership is to be implemented? The short answer it that I don't know. Absent a statutory delegation of authority, it would appear at first blush that the agreement would go to the Senate as a treaty for ratification. But, that seems excessively technical. The terms of the trade agreement, once reduced to a statute (rather than a self-executing treaty), are easily characterized as a domestic statute regulating foreign trade. In that light, there is no reason to go through the treaty process. A simple vote by both houses would be sufficient. But, absent TPA, the expediting procedures such as restricting amendments would not apply. In other words, TPP would be subject to all the normal sausage making that goes into domestic legislation.

In an effort to avoid that, Senate Bill S. 98 (Portman) would extend TPA through 2016. Having seen the budget debate and the looming question of the debt ceiling, I am all in favor of S. 98.


Anonymous said...

Larry -

Under what Constitutional authority has the Senate given up its duty to ratify treaties? The "laws" purporting to "de-treatify" certain types of international agreements all appear on their very faces to defy the Constitution.

I respectfully submit that EVERY so-called "trade agreement" fits clearly within the dictionary definition of "treaty," and thus, pursuant to the Constitution, is subject to Senatorial ratification.

Thus, all of these so-called "trade agreements," passed under unconstitutional "fast-track" authority are a bunch of nullities.

It makes more sense for 67 senators to say "aye," than to drag the hundreds of House members into the process, which is exactly what all the various versions of "Fast-Track" have done, in addition to abrogating the Senate's DUTY to ratify ALL treaties.

Why can't Congress and the Supreme Court respect the Constitution by using "common meaning" (i.e. general - as opposed to "specialized") dictionary definitions?

Life can be simple if you choose not to "complificate" it.

Your faithful Customs retiree.
(For new readers, I spent about 40 years on the commercial side of the US Customs Service, a/k/a CBP.)

Matt said...

In reply to Anonymous, I think life IS too complicated to put that genie back in the bottle. The odds on rounding up 66 Senators for unqualified approval of a complex, multi-lateral trade agreement covering tariffs, technical trade barriers, domestic subsidies, IP standards, etc., are slim to none. There are so many tradeoffs in these agreements, that mandated treaty ratification would pretty much drive off most of our trading partners before any meaningful "treaty" could be signed.
Regarding TPP, I think it is assumed that Congress will have to extend TPA before the agreement is signed, so the other parties have some security that it will not be revised and picked apart by Congressional members with individual issues. Optimistic projections notwithstanding, TPP won't be completed by November, and probably won't be completed before the 2012 elections. Portman is well aware of the timing and need for TPA, since he was USTR under Bush, and is properly laying down a marker now to keep the issue in view. But he doesn't expect it to be passed this year.