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Fast Track for Trade Agreements: Procedural Controls for Congress and Proposed Alternatives

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Abstract:

The fast track trade procedures in the Trade Act of 1974 operate as procedural rules of the House and Senate, and the statute itself declares them to be enacted as an exercise of the constitutional authority of each house to determine its own rules. The procedures prohibit amendment in both houses and assure the covered bills an opportunity to move forward at each essential step in the legislative process.

The intent of these procedures is to ensure that a bill implementing a nontariff trade agreement will be able to reach an “up-or-down” vote in the form submitted and in a timely manner. These procedures prevent Congress from altering an implementing bill or declining to act, but permit it to enact or reject the bill. By these means Congress retains authority to legislate in the areas covered, yet affords the President conditions for effective negotiation.

The Constitution generally empowers the President to conduct foreign policy, and in practice, only the executive can effectively speak for the United States in negotiations.

Implementing the agreement, on the other hand, normally requires changes in existing law, which only Congress might enact. Laws providing fast track negotiation authority for nontariff trade agreements have compensated for the restrictions placed on the legislative powers of Congress by providing, instead, mechanisms for Congress to influence the terms of the agreements, and of their implementing legislation, through other phases of the process, including: defining what implementing bills qualify for fast track consideration; placing conditions on the form of the negotiations and the content of both agreements and implementing legislation; and establishing notice and consultation requirements.

These mechanisms permit Congress to deny fast track consideration to implementing bills if it concludes that the executive is not conducting negotiations in accordance with statutory requirements. Most of these mechanisms appear as provisions of laws that have given the President authority, for a limited period, to negotiate trade agreements that may be implemented through legislation considered under fast track procedures.

The President’s 1997 fast track proposal, as well as two bills (S. 1269 and H.R. 2621) reported by the Senate Committee on Finance and the House Committee on Ways and Means, are generally similar in the negotiating authority they grant, the notifications and consultations they require, and the processes of implementation and enforcement they provide. There are, however, some differences that could become significant factors in the debate.