Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties

Publication Date: April 2008

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Trade

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Abstract:

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.