Trade Agreement Implementation: Expedited Procedures and Congressional Control in Existing Law

Publication Date: November 2001

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government; Trade

Type:

Abstract:

Expedited procedures for trade agreements were established by Section 151 of the Trade Act of 1974, and took their current form with the Omnibus Trade and Competitiveness Act of 1988 (OTCA 1988). These statutory expedited procedures act as procedural rules of each chamber governing consideration of bills to implement certain trade agreements. They are designed to insure that (1) Congress will take up the implementing bill and reach a final disposition within specified time limits, and (2) the bill will not be subject to amendment.

These procedural restrictions are designed to assure the President, and other countries involved in trade negotiations, that Congress will consider or implement a covered trade agreement only as a package, in the form negotiated. Affording this assurance requires limiting the usual discretion of Congress over the enactment and contents of laws. In exchange for accepting these limits on its discretion, Congress has (1) enacted restrictions on the circumstances in which they apply, and (2) retained to itself, or provided itself with, means of enforcing these restrictions.

Under OTCA 1988, the President could implement certain trade agreements that affected only tariffs without congressional action. An agreement including nontariff provisions, however, qualified for expedited consideration only if (1) it was negotiated during a specified time period, the most recent of which expired in 1994; (2) it advanced trade objectives established by Congress in law; (3) the implementing bill contained only provisions "necessary and proper" to implement the agreement; and (4) in the course of negotiations, the President notified and consulted with Congress in specified ways. Some of these consultations permitted the revenue committees to draft the implementing bill the President then submitted.

Congress could enforce the time limitation through adoption by either House of an "extension disapproval resolution" denying a presidential request to extend the period. It could enforce the notification and consultation requirements by terminating the availability of the expedited procedures, through adoption by each house of a "procedural disapproval resolution" stating that the requisite consultations had not occurred. Both kinds of resolutions were eligible for consideration under a second set of expedited procedures, established by Section 152 of the Trade Act of 1974.

Congress could enforce the other limitations on the eligibility of trade agreements for expedited consideration by using the constitutional authority of each house to make its own rules. First, in principle, the chair might rule that an implementing bill did not meet the statutory requirements for expedited consideration. Second, each house has procedural means for either altering the procedures applicable to any implementing bill, or considering an alternative measure instead. Finally, either house could at any time permanently amend the statutory expedited procedures, just as with any other procedural rules. These capacities afford Congress the ultimate ability to recover its full legislative discretion over the implementation of any trade agreement.