Fast track (trade)
The fast track authority for brokering trade agreements is the authority of the President of the United States to negotiate international agreements that Congress can approve or deny but cannot amend or filibuster. Renamed the trade promotion authority (TPA) in 2002, fast track negotiating authority is an impermanent power granted by Congress to the President. Fast track authority remained in effect from 1975 to 1994, pursuant to the Trade Act of 1974, and from 2002 to 2007 by the Trade Act of 2002. Although it technically expired in July 2007, it remained in effect for agreements that were already under negotiation until their passage in 2011. The following year, the Obama administration sought renewal of TPA, and in June 2015, it passed Congress and was signed into law by the President. Known as the Trade Preferences Extension Act of 2015, the legislation conferred on the Obama administration "enhanced power to negotiate major trade agreements with Asia and Europe."
Enactment and history
Congress started the fast track authority in the Trade Act of 1974, § 151–154 (19 U.S.C. § 2191–2194). This authority was set to expire in 1980, but was extended for eight years in 1979. By that grant of authority and procedure, Congress then enacted implementing legislation for the U.S.-Israel Free Trade Area, the U.S.-Canada Free Trade Agreement.
TPA authority was renewed from 1988 to 1993 to allow for negotiation of the North American Free Trade Agreement (NAFTA), and the commencement of the Uruguay Round, of the General Agreement on Tariffs and Trade (GATT). With this grant of authority, Congress eventually enacted legislation implementing NAFTA.
TPA authority was then further extended to April 16, 1994, the day after the Uruguay Round concluded in the Marrakech Agreement, transitioning GATT into the World Trade Organization (WTO). Under this authority, Congress ultimately passed the implementing legislation for the Uruguay Round Agreements Act.
In the second half of the 1990s, fast track authority languished due to opposition from House Republicans.
Republican 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 U.S. 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 U.S.–Chile Free Trade Agreement, the U.S.–Singapore Free Trade Agreement, the Australia–U.S. Free Trade Agreement, the U.S.–Morocco Free Trade Agreement, the Dominican Republic–Central America Free Trade Agreement, the U.S.–Bahrain Free Trade Agreement, the U.S.–Oman Free Trade Agreement, and the Peru–U.S. Trade Promotion Agreement. The authority expired on July 1, 2007.
In October 2011, the Congress and President Obama enacted into law the Colombia Trade Promotion Agreement, the South Korea–U.S. Free Trade Agreement, and the Panama–U.S. Trade Promotion Agreement using fast track rules, all of which the George W. Bush administration 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 Partnership (TPP) negotiations, which have been undertaken as if the authority were still in effect. After several years of debate, trade-promotion authority was again granted by the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, along with a law providing for "trade adjustment assistance, the Trade Preferences Extension Act of 2015.
As of 2013, the majority of United States free trade agreements were implemented as congressional-executive agreements. Unlike treaties, such agreements require a majority of the House and Senate to pass. Under trade promotion authority (TPA) , established by the Trade Act of 1974 and renewed by the Trade Act of 2002, Congress authorizes the President to negotiate "free trade agreements ... if they are approved by both houses in a bill enacted into public law and other statutory conditions are met." This authority had expired (except for agreements already under negotiation) in 2007. In early 2012, the Obama administration indicated that a requirement for the conclusion of TPP negotiations was the renewal of TPA. This required the United States Congress to introduce and vote on an administration-authored bill for implementing the TPP with minimal debate and no amendments, with the entire process taking no more than 90 days.
In December 2013, 151 House Democrats signed a letter written by Rosa DeLauro (D-CT) and George Miller (D-CA), which opposed the fast track trade promotion authority for the TPP. Several House Republicans opposed the measure on the grounds that it empowered the executive branch. In January 2014, House Democrats refused to put forward a co-sponsor for the legislation, hampering the bill's prospects for passage.
On 16 April 2015, several U.S. Senators introduced "The Bipartisan Congressional Trade Priorities and Accountability Act of 2015", which is commonly known as TPA Fast-track legislation. The bill passed the Senate on 21 May 2015, by a vote of 62 to 38, with 31 Democrats, five Republicans and both Independents opposing. The bill went to the U.S. House of Representatives, which narrowly passed the bill 218-208, and also removed the Trade Adjustment Assistance portions of the Senate bill. The TPA was passed by the Senate on 24 June 2015, without the TAA provisions, requiring only the signature of the President before becoming law. President Obama expressed a desire to sign the TPA and TAA together, and did sign both into law on 29 June, as the TAA was able to make its way through Congress in a separate bill. The TPA law is known as the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, and the TAA law is known as the Trade Preferences Extension Act of 2015.
The ultimate approval of this legislation conferred on the Obama administration "enhanced power to negotiate major trade agreements with Asia and Europe." Through the TPA, Obama could "submit trade deals to Congress for an expedited vote without amendments." The successful conclusion of these bilateral talks was necessary before the other ten TPP members could complete the trade deal.
If the President transmits a fast track 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.
According to the Congressional Research Service, Congress categorizes trade negotiating objectives in three ways: overall objectives, principal objectives, and other priorities. The broader goals encapsulate the overall direction trade negotiations take, such as enhancing the United States' and other countries' economies. Principal objectives are detailed goals that Congress expects to be integrated into trade agreements, such as "reducing barriers and distortions to trade (e.g., goods, services, agriculture); protecting foreign investment and intellectual property rights; encouraging transparency; establishing fair regulatory practices; combating corruption; ensuring that countries enforce their environmental and labor laws; providing for an effective dispute settlement process; and protecting the U.S. right to enforce its trade remedy laws". Consulting Congress is also an important objective.
Principal objectives include:
- Market access: These negotiating objectives seek to reduce or eliminate barriers that limit market access for U.S. products. "It also calls for the use of sectoral tariff and non-tariff barrier elimination agreements to achieve greater market access."
- Services: Services objectives "require that U.S. negotiator strive to reduce or eliminate barriers to trade in services, including regulations that deny nondiscriminatory treatment to U.S. services and inhibit the right of establishment (through foreign investment) to U.S. service providers."
- Agriculture: There are three negotiating objectives regarding agriculture. One lays out in greater detail what U.S. negotiators should achieve in negotiating robust trade rules on sanitary and phytosanitary (SPS) measures. The second calls for trade negotiators to ensure transparency in how tariff-rate quotas are administered that may impede market access opportunities. The third seeks to eliminate and prevent the improper use of a country’s system to protect or recognize geographical indications (GI). These are trademark-like terms used to protect the quality and reputation of distinctive agricultural products, wines and spirits produced in a particular region of a country. This new objective is intended to counter in large part the European Union’s efforts to include GI protection in its bilateral trade agreements for the names of its products that U.S. and other country exporters argue are generic in nature or commonly used across borders, such as parma ham or Parmesan cheese.”
- Investment/Investor rights: “The overall negotiating objectives on foreign investment are designed “to reduce or eliminate artificial or trade distorting barriers to foreign investment, while ensuring that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than domestic investors in the United States, and to secure for investors important rights comparable to those that would be available under the United States legal principles and practices."
Fast track agreements were enacted as "congressional-executive agreements" (CEAs), which must be approved by a simple majority in both chambers of Congress.
Although Congress cannot 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.
Arguments in favor
- Helps pass trade agreements: According to AT&T Chairman and CEO Randall L. Stephenson, Trade Promotion Authority is "critical to completing new trade agreements that have the potential to unleash U.S. economic growth and investment". Jason Furman, chairman of Obama's Council of Economic Advisers, also said "the United States might become less competitive globally if it disengaged from seeking further trade openings: 'If you're not in an agreement—that trade will be diverted from us to someone else—we will lose out to another country'".
- Congress is allowed more say and members are shielded: According to I.M. Destler of the Peterson Institute for International Economics, fast track "has effectively bridged the division of power between the two branches. It gives executive branch (USTR) negotiators needed credibility to conclude trade agreements by assuring other nations' representatives that Congress won't rework them; it guarantees a major Congressional role in trade policy while reducing members' vulnerability to special interests”.
- Assurance for foreign governments: According to President Reagan's Attorney General Edwin Meese III, "it is extremely difficult for any U.S. President to negotiate significant trade deals if he cannot assure other nations that Congress will refrain from adding numerous amendments and conditions that must then be taken back to the negotiating table". The very nature of Trade Promotion Authority requires Congress to vote on the agreements before they can take effect, meaning that without TPA, "those agreements might never even be negotiated".
- Unconstitutional: Groups opposed to Trade Promotion Authority claim that it places too much power in the executive branch, "allowing the president to unilaterally select partner countries for ‘trade’ pacts, decide the agreements' contents, and then negotiate and sign the agreements—all before Congress has a vote on the matter. Normal congressional committee processes are forbidden, meaning that the executive branch is empowered to write lengthy legislation on its own with no review or amendments." Article II, Section 2. He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur...
- Lack of transparency: Democratic members of Congress and general right-to-know internet groups are among those opposed to trade fast track on grounds of a lack of transparency. Such Congressmen have complained that fast track forces "members to jump over hurdles to see negotiation texts and blocks staffer involvement. In 2012, Senator Ron Wyden (D-Ore.) complained that corporate lobbyists were given easy access while his office was being stymied, and even introduced protest legislation requiring more congressional input."
On June 12, 2015, following a surprise visit from President Obama to Capitol Hill, the House voted on three amendments related to trade, including the renewal of trade promotion authority. The House overwhelmingly voted against a related measure, Trade Adjustment Assistance, which would have had to have passed in order for the rest of the trade measures to go through, therefore the TPA effectively failed in the House. But it passed narrowly (212-202) on June 18, 2015 after Trade Adjustment Assistance was delinked from the TPA. On June 24, 2015, the TPA passed the Senate. It was signed into law by President Obama on June 29.
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- Trade Agreements Act of 1979, Pub.L. 96–39, 93 Stat. 144
- Omnibus Trade and Competitiveness Act of 1988, Pub.L. 100–418
- Pub.L. 103–49, enacted July 2, 1993, codified at 19 U.S.C. § 2902(e)
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