Fast track (trade)

The fast track negotiating authority (also called trade promotion authority or TPA, since 2002) for trade agreements is the authority of the President of the United States to negotiate international agreements that the Congress can approve or disapprove but cannot amend or filibuster. Fast-track negotiating authority is granted to the president by Congress. It was in effect pursuant to the Trade Act of 1974 from 1975 to 1994 and was restored in 2002 by the Trade Act of 2002. It expired at midnight on July 1, 2007.

Enactment and history

Congress created the fast track authority in the Trade Act of 1974, § 151-154 (19 U.S.C. § 2191-2194). The fast track authority created under the Act was set to expire in 1980 but was extended for 8 years in a 1979 act and was renewed again in 1988 until 1993 to accommodate negotiation of the Uruguay Round conducted within the framework of the General Agreement on Tariffs and Trade (GATT), and was again extended to 16 April 1994, a day after the Uruguay Round concluded in the Marrakech Agreement transforming the GATT into the World Trade Organization (WTO). Pursuant to that grant of authority, Congress then enacted implementing legislation for the United States-Israel Free Trade Area, the United States-Canada Free Trade Agreement, the North American Free Trade Agreement (NAFTA), and the Uruguay Round Agreements Act (URAA). Fast track languished during the late 1990s because of the opposition of House Republicans.

Presidential candidate George W. Bush made fast track part of his campaign platform in 2000. In May 2001, as president he made a speech about the importance of free trade at the annual Council of the Americas in New York, founded by David Rockefeller and other senior US businessmen in 1965. Subsequently, the Council played a role in the implementation and securing of TPA through Congress.

At 3:30 a.m. on July 27, 2002, the House passed the Trade Act of 2002 narrowly by a 215 to 212 vote with 190 Republicans and 27 Democrats making up the majority. The bill passed the Senate by a vote of 64 to 34 on August 1, 2002. The Trade Act of 2002, § 2103-2105 (19 U.S.C. § 3803-3805), extended and conditioned the application of the original procedures.

Under the second period of fast-track authority, Congress enacted implementing legislation for the United States-Chile Free Trade Agreement, the United States-Singapore Free Trade Agreement, the United States-Australia Free Trade Agreement, the United States-Morocco Free Trade Agreement, the Dominican Republic-Central America-United States Free Trade Agreement, the United States-Bahrain Free Trade Agreement, the United States-Oman Free Trade Agreement, and the Peru Trade Promotion Agreement. Other agreements may come to Congress under fast track, notably: the Colombia Trade Promotion Agreement, the South Korea – United States Free Trade Agreement, and the Panama – United States Trade Promotion Agreement.

The authority will cover implementing bills with respect to trade agreements entered into before July 1, 2007. (19 U.S.C. § 3803(c)(1)(B).) The authority expired on July 1, 2007, without being renewed by Congress. Nonetheless, the authority will be available for Congressional consideration of free trade agreements with Panama, Colombia, and Korea, all of which the United States signed before the deadline.

In early 2012, the Obama administration indicated that renewal of the authority is a requirement for the conclusion of Trans-Pacific Strategic Economic Partnership (TPP) negotiations, which have been undertaken as if the authority were still in effect.

Procedure

If the President transmits a trade agreement to Congress, then the majority leaders of the House and Senate or their designees must introduce the implementing bill submitted by the President on the first day on which their House is in session. (19 U.S.C. § 2191(c)(1).) Senators and Representatives may not amend the President’s bill, either in committee or in the Senate or House. (19 U.S.C. § 2191(d).) The committees to which the bill has been referred have 45 days after its introduction to report the bill, or be automatically discharged, and each House must vote within 15 days after the bill is reported or discharged. (19 U.S.C. § 2191(e)(1).)

In the likely case that the bill is a revenue bill (as tariffs are revenues), the bill must originate in the House (see U.S. Const., art I, sec. 7), and after the Senate received the House-passed bill, the Finance Committee would have another 15 days to report the bill or be discharged, and then the Senate would have another 15 days to pass the bill. (19 U.S.C. § 2191(e)(2).) On the House and Senate floors, each Body can debate the bill for no more than 20 hours, and thus Senators cannot filibuster the bill and it will pass with a simple majority vote. (19 U.S.C. § 2191(f)-(g).) Thus the entire Congressional consideration could take no longer than 90 days.

Scope

The United States Constitution enables only Congress to regulate commerce with foreign nations; international trade agreements can be negotiated by the executive branch only with Congressional oversight, and are generally considered "congressional-executive agreements" (CEAs), which must be approved by a simple majority in both chambers of Congress. Other international agreements, such as treaties not relating to tariffs and trade quotas, can be negotiated solely by the executive branch, but such treaties must be ratified by a two-thirds majority vote in the Senate in order to take effect. Once approved, policy changes required by either type of agreement can then be made immediately, but if any legislation is required to implement the agreement, then normal legislative procedures must be followed, including Congressional authorship, amendment, and debate, a process which can be lengthy and during which the legislation may "die".

For more details on how international trade agreements are normally handled, see Powers of the United States Congress, Congressional oversight, and Treaty Clause.

Although Congress can't explicitly transfer its powers to the executive branch, the 1974 trade promotion authority had the effect of delegating power to the executive, minimizing consideration of the public interest, and limiting the legislature's influence over the bill to an up or down vote:

• It allowed the executive branch to select countries for, set the substance of, negotiate and then sign trade agreements without prior Congressional approval.
• It allowed the executive branch to negotiate trade agreements covering more than just tariffs and quotas.
• It established a committee system, comprising 700 industry representatives appointed by the president, to serve as advisors to the negotiations. Throughout trade talks, these individuals had access to confidential negotiating documents. Most members of Congress and the public had no such access, and there were no committees for consumer, health, environmental or other public interests.
• It empowered the executive branch to author an agreement's implementing legislation without Congressional input.
• It required the executive branch to notify Congress 90 days before signing and entering into an agreement, but allowed unlimited time for the implementing legislation to be submitted.
• It forced a floor vote on the agreement and its implementing legislation in both chambers of Congress; the matters could not "die in committee."
• It eliminated several floor procedures, including Senate unanimous consent, normal debate and cloture rules, and the ability to amend the legislation.
• It prevented filibuster by limiting debate to 20 hours in each chamber.
• It elevated the Special Trade Representative (STR) to the cabinet level, and required the Executive Office to house the agency.

The 1979 version of the authority changed the name of the STR to the U.S. Trade Representative.

The 2002 version of the authority created an additional requirement for 90-day notice to Congress before negotiations could begin.

Further reading

• Dauster, William G. Trade Promotion Authority Annotated. Washington, D.C.: Government Printing Office, 2007. Senate print 110-10.
• Rockefeller, David. Memoirs, New York: Random House, 2002.
• Smith, Carolyn C. Trade Promotion Authority and Fast-Track Negotiating Authority for Trade Agreements: Major Votes. Washington, D.C.: Congressional Research Service, 2006.
• Todd Tucker and Lori Wallach. The Rise and Fall of Fast Track Trade Authority. Washington, D.C.: Public Citizen, 2009.
• Hornbeck, J.F., and Cooper, William H. Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy. Washington, D.C.: Congressional Research Service, 2011.