Congressional and Executive Authority Over Foreign Trade Agreements
Congressional research reportSep 25, 2025
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Congressional and Executive Authority Over
Foreign Trade Agreements
Updated September 25, 2025
Congressional Research Service
https://crsreports.congress.gov
R47679
SUMMARY
Congressional and Executive Authority Over
Foreign Trade Agreements
This report examines the constitutional powers of Congress and the President over foreign trade
agreements, the respective roles the legislative and executive branches have played in selected
trade agreements in the 2020s, and legal debates concerning the extent to which the executive
branch may enter into or withdraw from trade agreements without congressional approval.
R47679
September 25, 2025
Christopher T. Zirpoli
Legislative Attorney
The Constitution grants Congress the power to regulate foreign commerce, impose tariffs, and collect revenue, while the
President holds constitutional power to negotiate with foreign governments. U.S. Const. art. I, § 8, cls. 1, 3. Courts have only
infrequently opined on the ways in which the United States may enter into foreign trade agreements based on this separation
of powers. Nevertheless, policymakers and scholars broadly accept that the United States may enter into trade agreements
with other countries via “congressional-executive agreements,” which are negotiated by the President and approved—either
in advance or afterward—by Congress. By contrast, many have questioned whether the President may enter into trade
agreements with other countries via “sole executive agreements,” which are not approved by Congress and for which the
executive branch relies on the President’s independent constitutional powers. Presidents have, however, made various
nonbinding trade commitments to other countries without congressional authorization based on their asserted authority to
conduct foreign relations.
The 2020s have revealed a shift in the means by which the United States enters into trade agreements. Traditionally,
Presidents negotiated many trade agreements—including free trade agreements and other agreements affecting tariffs—as
congressional-executive agreements pursuant to trade promotion authority (TPA) legislation enacted by Congress. The last
TPA authorization, Pub. L. No. 114-26, expired in 2021, leaving this vehicle for congressional-executive agreements
unavailable for the time being. Meanwhile, scholars have noted an upswing in the President’s use of various trade agreements
(sometimes called “mini-deals”) that are not specifically approved by Congress. Some commentators have questioned
whether such agreements should be considered sole executive agreements, as it is not clear to what extent they are based on
the President’s independent constitutional authority versus powers Congress has delegated to the executive branch. This
report refers to these agreements as “hybrid” trade agreements given their mixed or uncertain legal foundations.
Some Members of Congress have questioned whether hybrid trade agreements are constitutionally permissible and have
sought to reassert Congress’s role in the making of foreign trade agreements. This report evaluates some of the potential legal
bases for the executive branch to enter into hybrid trade agreements without congressional approval, including powers that
Congress has delegated to the U.S. Trade Representative (USTR) or to executive agencies that may have authority to
implement certain trade agreements. By including an analysis of these executive agencies’ authorities, this report examines
not only the President’s constitutional powers with respect to trade agreement-making but also ways in which the wider
executive branch may claim authority to make trade agreements. The report also considers the extent to which possible
congressional acquiescence may provide constitutional support for hybrid trade agreements.
Post-2020 trade agreements and nonbinding instruments concluded without advance approval by Congress include deals
memorialized by the United States with the United Kingdom and European Union in 2025, a Critical Minerals Agreement
between the United States and Japan in March 2023, and a trade agreement between the United States and Taiwan in June
2023. This report provides a legal overview of these agreements and initiatives, with a focus on the extent to which they
create binding international obligations, the respective roles played in these agreements by Congress and the executive
branch, and legal defenses and criticisms of the agreements.
Finally, this report analyzes constitutional issues raised by withdrawal from international trade agreements, specifically
debates concerning whether the President may withdraw from such agreements without congressional approval. It also
includes analysis of the joint review process for the U.S.-Mexico-Canada Agreement (USMCA), under which the parties to
that agreement may decide to extend its term or allow it to expire.
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Congressional and Executive Authority Over Foreign Trade Agreements
Contents
Introduction ..................................................................................................................................... 1
Separation of Powers Regarding Foreign Trade .............................................................................. 2
Constitutional Framework ......................................................................................................... 2
Executive Agreements ............................................................................................................... 3
Nonbinding Instruments ............................................................................................................ 5
Trends in Legal Bases for Foreign Trade Agreements .................................................................... 7
Trade Promotion Authority: A Traditional Model ..................................................................... 7
Free Trade Agreements (FTAs) ........................................................................................... 7
Tariff Proclamation Authority ............................................................................................. 9
Trade Agreements Not Approved by Congress: A Potential New Model ............................... 10
Constitutionality of Hybrid Trade Agreements ............................................................................. 12
U.S. Trade Representative Authorities .................................................................................... 13
Existing Laws and Regulatory Authorities.............................................................................. 16
Congressional Acquiescence ................................................................................................... 17
Trade Agreement Practice Since 2020 ........................................................................................... 19
Second Trump Administration Tariff Deals ............................................................................ 19
United States-United Kingdom Deal ................................................................................ 19
United States-European Union Deal ................................................................................. 21
Legal Authority for the UK Deal and the EU Deal ........................................................... 22
United States-Japan Critical Minerals Agreement .................................................................. 23
U.S.-Taiwan Initiative on 21st Century Trade.......................................................................... 25
Authority to Withdraw from Trade Agreements ............................................................................ 27
Legal Background and Debates .............................................................................................. 27
Withdrawal Under the Youngstown Framework ...................................................................... 30
USMCA Joint Review Provision............................................................................................. 32
Considerations for Congress.......................................................................................................... 33
Contacts
Author Information........................................................................................................................ 34
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Congressional and Executive Authority Over Foreign Trade Agreements
Introduction
The U.S. Constitution gives Congress the power to regulate foreign commerce1 and impose
tariffs,2 and it gives the President the power to enter into treaties with the advice and consent of
the Senate,3 but it does not address whether or how the United States may enter into foreign trade
agreements outside of the treaty process. Congress and the President have sometimes contested
their respective roles in trade agreement-making, but they have also sometimes reached
accommodations giving both the legislative and executive branches a substantial role.
Congress has periodically exercised its authority over foreign trade agreements via legislation
authorizing the President to negotiate certain trade agreements—particularly agreements affecting
tariffs—approving those agreements, and/or implementing those agreements via changes to U.S.
domestic law.4 In recent decades, however, the President and the U.S. Trade Representative
(USTR) have increasingly entered into various trade agreements that Congress has not
specifically authorized or approved.5 Under the Trump and Biden Administrations, for instance,
the United States has entered into certain trade agreements that were not submitted to Congress
for approval.6
This report begins by surveying the relevant powers the Constitution gives Congress and the
President as well as how those powers may (or may not) permit various forms of foreign trade
agreements.7 The report compares a prominent traditional model of U.S. trade agreements—free
trade agreements (FTAs) and tariff proclamations authorized by Congress—with an increasingly
used model of trade agreements that the President or USTR enters into without obtaining explicit
congressional authorization or approval.8 The report considers various legal arguments about
whether the executive branch may enter into trade agreements without congressional approval,
including arguments regarding the authorities Congress has delegated to USTR, the executive
branch’s power to implement certain U.S. trade agreements without the need for implementing
legislation, and possible congressional acquiescence to the executive branch’s practice in this
field.9
This report then surveys selected examples of recent U.S. trade agreements and initiatives,
involving the United Kingdom, the European Union, Japan, and Taiwan.10 Finally, the report
analyzes debates over whether congressional approval is legally required for the President to
withdraw from existing trade agreements.
1 See U.S. CONST. art. I, § 8, cl. 3.
2 See id. art. I, § 8, cl. 1.
3 See id. art. II, § 2, cl. 2.
4 See, e.g., Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (TPA-2015), Pub. L. No. 114-26,
129 Stat. 319 (codified at 19 U.S.C. §§ 4201–4210) (legislation giving President trade promotion authority); United
States-Mexico-Canada Agreement Implementation Act (USMCA Implementation Act), Pub. L. No. 116-113, 134 Stat.
11 (2020) (codified in 19 U.S.C. §§ 4501–4732) (legislation approving and implementing United States-MexicoCanada Agreement).
5 See Kathleen Claussen, Trade’s Mini-Deals, 62 VA. J. INT’L L. 315 (2022).
6 See infra “Trade Agreement Practice.”
7 See infra “Separation of Powers Regarding Foreign Trade.”
8
See infra “Trends in Legal Bases for Foreign Trade Agreements.”
9 See infra “Constitutionality of Hybrid Trade Agreements.”
10 See infra “Trade Agreement Practice.”
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Separation of Powers Regarding Foreign Trade
Constitutional Framework
Congress and the President both hold constitutional powers relevant to international trade
agreements. The Constitution gives Congress the power to regulate foreign commerce and to levy
duties, or tariffs, on foreign imports.11 Article I, Section 8 of the Constitution gives Congress the
“Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for
the common Defence and general Welfare of the United States.”12 It also gives Congress power
“[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian
Tribes.”13 As with all of its express constitutional powers, Congress has the accompanying
authority to “make all Laws which shall be necessary and proper for carrying into Execution”
these powers.14
The Constitution vests “[t]he executive Power” in the President15 and provides that the President
“shall take Care that the Laws be faithfully executed.”16 The President’s constitutional powers
pertaining to international trade agreements may include the powers that Article II expressly
grants to the President as well as certain “inherent” powers not specifically provided by the
Constitution.17 The Treaty Clause of the Constitution expressly gives the President the power to
make treaties with the advice and consent of two-thirds of the Senate.18 In Curtiss-Wright, the
Supreme Court stated in dicta that the President has broad authority over foreign affairs that is not
limited to “affirmative grants of the Constitution,”19 such as the Treaty Clause, but also includes
various powers inherent in his role as head of state.20 Such inherent powers include “the power to
make such international agreements as do not constitute treaties” and “the power to speak or
listen as a representative of the nation,” including the power to negotiate on behalf of the United
States.21 In another case, the Court stated that, while the President’s foreign affairs powers do not
11 See United States v. Yoshida Int’l, Inc., 526 F.2d 560, 571 (C.C.P.A. 1975) (“The people of the new United States, in
adopting the Constitution, granted the power to ‘lay and collect duties’ and to ‘regulate commerce’ to the Congress, not
to the Executive.” (quoting U.S. CONST. art. I, § 8, cls. 1, 3)).
12 U.S. CONST. art. I, § 8, cl. 1; see Cong. Rsch. Serv., Overview of Taxing Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artI-S8-C1-1-1/ALDE_00013387/ (last visited Sept. 23, 2025).
13 U.S. CONST. art. I, § 8, cl. 3; see Cong. Rsch. Serv., Overview of Foreign Commerce Clause, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artI-S8-C3-8-1/ALDE_00001057/ (last visited Sept. 23,
2025).
14 U.S. CONST. art. I, § 8, cl. 18; see Cong. Rsch. Serv., Overview of Necessary and Proper Clause, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artI-S8-C18-1/ALDE_00001242/ (last visited Sept. 23,
2025).
15 U.S. CONST. art. II, § 1, cl. 1; see Cong. Rsch. Serv., Overview of Executive Vesting Clause, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artII-S1-C1-1/ALDE_00013790/ (last visited Sept. 23,
2025).
16 U.S. CONST. art. II, § 3; see Cong. Rsch. Serv., Overview of Take Care Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artII-S3-3-1/ALDE_00001160/ (last visited Sept. 23, 2025).
17 See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).
18 U.S. CONST. art. II, § 2, cl. 2; see Cong. Rsch. Serv., Overview of President’s Treaty-Making Power, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artII-S2-C2-1-1/ALDE_00012952/ (last visited Sept. 23,
2025).
19
299 U.S. at 318.
20 See id. at 318–19.
21 Id.
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find “any textual detail” in the Constitution,22 the “executive power” includes the “‘vast share of
responsibility for the conduct of our foreign relations.’”23
In Zivotofsky v. Kerry,24 the Court called into question some dicta in Curtiss-Wright that might be
read to limit Congress’s powers over foreign policy.25 While observing that “[t]he President does
have a unique role in communicating with foreign governments,” the Zivotofsky Court stated that,
“whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive
Branch, that makes the law.”26 Thus, the Court stated, the President “is not free from the ordinary
controls and checks of Congress merely because foreign affairs are at issue.”27 Regarding foreign
trade, the Zivotofsky Court expressed in dicta that “the easing of trade restrictions” is an example
of action that would “require action by the Senate or the whole Congress”28 and identified the
Foreign Commerce Clause as an example of constitutional provisions establishing that “many
decisions affecting foreign relations . . . require congressional action.”29
Executive Agreements
Binding international agreements made by the President outside of the constitutionally prescribed
treaty process are known as executive agreements, and they comprise the majority of agreements
the United States has made with other countries.30 Under international law, executive agreements
are also considered “treaties.”31 The Supreme Court has recognized that some executive
agreements can be a constitutional alternative to treaties receiving the requisite advice-andconsent of the U.S. Senate.32 However, the Constitution’s express grant of the foreign commerce
and tariff powers to Congress may constrain the President’s ability to conclude foreign trade
agreements via some kinds of executive agreements.
The President’s power to regulate foreign commerce via executive agreement may depend on
whether or not the agreement is approved by Congress. Scholars and policymakers generally
accept that Presidents may enter into trade agreements via “congressional-executive
22 Am. Ins. Ass’n. v. Garamendi, 539 U.S. 396, 414 (2003).
23 Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–611 (1952) (Frankfurter, J., concurring)).
24 576 U.S. 1 (2015).
25 See id. at 20–21; cf. Curtiss-Wright, 299 U.S. at 320 (describing the President as “the sole organ of the federal
government in the field of international relations”).
26 Zivotofsky, 576 U.S. at 21.
27 Id.
28 Id. at 16.
29 Id.
30 See CRS Report RL32528, International Law and Agreements: Their Effect upon U.S. Law, by Stephen P. Mulligan
(2023) [hereinafter International Law and Agreements]; STAFF OF S. COMM. ON THE FOREIGN RELS., 106TH CONG.,
REPORT ON TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE 38 (Comm.
Print 2001); CURTIS A. BRADLEY, INTERNATIONAL LAW IN THE U.S. LEGAL SYSTEM 96 (2d ed. 2015).
31 See Vienna Convention on the Law of Treaties, art. 2(1)(a), opened for signature May 23, 1969, 1155 U.N.T.S. 331
(entered into force Jan. 27, 1980) [hereinafter Vienna Convention] (defining “treaty” as “an international agreement
concluded between States in written form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation.”).
32 See, e.g., Garamendi, 539 U.S. at 415 (“[O]ur cases have recognized that the President has authority to make
‘executive agreements’ with other countries, requiring no ratification by the Senate . . . this power having been
exercised since the early years of the Republic.”); United States v. Belmont, 301 U.S. 324, 330 (1937) (“[A]n
international compact . . . is not always a treaty which requires the participation of the Senate.”).
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agreements,”33 which Congress approves via legislation enacted through the bicameral process
either before or after the President negotiates the agreements.34 For example, as discussed below,
all comprehensive U.S. FTAs—including the North American Free Trade Agreement (NAFTA)
and its successor, the U.S.-Mexico-Canada Agreement (USMCA)35—have been entered into via
congressional-executive agreements, as was the agreement establishing the World Trade
Organization (WTO).36 While at least one lawsuit argued that NAFTA was void under U.S. law
because it was not ratified in the manner the Constitution requires for treaties, a federal court of
appeals dismissed this lawsuit, holding that “what constitutes a ‘treaty’ requiring Senate
ratification presents a nonjusticiable political question.”37
Since the Constitution vests Congress with the power to regulate foreign commerce and impose
tariffs, it is doubtful that the President may enter into trade agreements via “sole executive
agreements,” which are not approved by Congress but rather are based on the President’s
independent powers granted expressly or inherently by the Constitution.38 Some Members of
Congress have claimed that sole executive agreements over foreign trade would be
unconstitutional. For instance, a December 2022 letter from some Members of the Senate Finance
Committee to the President states that “attempts to use sole executive agreements to bind the
United States on broad matters of international trade . . . interfere with congressional authority
under the Constitution.”39
There is scant case law regarding the acceptability of sole executive agreements to regulate
foreign trade. In a 1953 decision, the U.S. Court of Appeals for the Fourth Circuit invalidated an
executive agreement intended to prevent the importation of foreign potatoes for domestic
consumption as part of an effort to maintain U.S. potato prices.40 The court reasoned that “the
power to regulate interstate and foreign commerce is not among the powers incident to the
presidential office, but is expressly vested by the Constitution in the Congress.”41 This reasoning
was arguably dicta, however, because the court held that the executive order did not comply with
a statutorily prescribed procedure for investigating economically harmful food imports.42 It is
33 Harold Hongju Koh, Triptych’s End: A Better Framework to Evaluate 21st Century International Lawmaking, 126
YALE L.J. F. 338, 339 (2017) (“It was long ago settled that congressional-executive agreements should be treated as
instruments legally interchangeable with Article II treaties . . . .”).
34 See International Law and Agreements, supra note 30.
35
Agreement between the United States of America, the United Mexican States, and Canada, July 1, 2020 [hereinafter
USMCA], https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/agreementbetween [https://perma.cc/MRJ7-SCZ2].
36 See Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994).
37 Made in the USA Found. v. United States, 242 F.3d 1300, 1302 (11th Cir. 2001).
38 See, e.g., U.S. DEP’T OF STATE, 11 FOREIGN AFFAIRS MANUAL (F.A.M.) § 723.2-2 (2006),
https://fam.state.gov/fam/11fam/11fam0720.html [https://perma.cc/V6NF-2KUU] (“The President may conclude an
international agreement on the basis of existing legislation, or subject to legislation to be adopted by the Congress, or
upon the failure of Congress to adopt a disapproving joint or concurrent resolution within designated time periods.”).
39 Letter from Members of the S. Fin. Comm. to President Joseph R. Biden, at *2 (Dec. 1, 2022) [hereinafter Senate
Finance Letter],
https://www.finance.senate.gov/imo/media/doc/Letter%20to%20POTUS%20on%20IPEF%20Authority%20FINAL%2
012.1.22.pdf [https://perma.cc/9ADM-9DTM].
40
United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), aff’d on other grounds, 348 U.S. 296 (1955).
41 Id. at 659.
42 See id. at 658–59 (“There was no pretense of complying with the requirements of the statute.”).
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uncertain whether the court would have invalidated the executive agreement if Congress had not
already mandated a different procedure.43
Nonbinding Instruments
Even if Presidents lack constitutional authority to enter into sole executive agreements regarding
foreign trade, they may have authority to enter into “nonbinding instruments” regarding foreign
trade without congressional authorization. A nonbinding instrument makes “political
commitments” or “soft law pacts”44 to other countries but does not create legal rights or
obligations under international or domestic law.45 Although the Constitution does not expressly
give the President authority to make nonbinding instruments, some scholars argue that the
President’s power to negotiate and conduct diplomacy logically entails the power to make
nonbinding instruments.46
In the trade context, Presidents have entered into various nonbinding instruments with other
countries that “form cooperative or non-binding obligations” without congressional approval.47
As one example, in 2022 the United States and Canada executed a Memorandum of
Understanding under which the United States committed to suspend tariffs on certain solar
products originating from Canada to resolve claims Canada had asserted under the dispute
resolution provisions of USMCA.48 The memorandum provides that it “is not binding under
international law.”49
Some case law arguably supports the President’s authority to enter into nonbinding trade
instruments. In its 1974 decision in Consumers Union of United States, Inc. v. Kissinger,50 the
U.S. Court of Appeals for the District of Columbia Circuit upheld certain “voluntary import
restraint undertakings” that the executive branch had negotiated with foreign steel producer
associations to reduce the amount of steel imported into the United States.51 Letters from the
foreign producer associations undertook not to export more than specified quantities of steel to
the United States, based on the understanding that the United States would not impose mandatory
43 See id. at 659–60 (“[W]hatever the power of the executive with respect to making executive trade agreements
regulating foreign commerce in the absence of action by Congress, it is clear that the executive may not through
entering into such an agreement avoid complying with a regulation prescribed by Congress.”).
44 See International Law and Agreements, supra note 30. As used in this report, the term commitment refers broadly
both to legally binding and nonbinding agreements or undertakings.
45 See id.; Guidance on Non-Binding Documents, U.S. DEP’T OF STATE, https://20092017.state.gov/s/l/treaty/guidance/index.htm [https://perma.cc/W3HS-683H] (last visited Sept. 23, 2025); Curtis
Bradley et al., The Rise of Nonbinding International Agreements: An Empirical, Comparative, and Normative Analysis,
90 U. CHI. L. REV. 1281, 1289–91 (2023).
46 See Non-Binding Agreements: Episode Transcript, U.C. BERKELEY, SCH. OF L. (Nov. 10, 2021),
https://www.law.berkeley.edu/podcast-episode/non-binding-agreements/ [https://perma.cc/2WXE-2FVB] (Jack
Goldsmith arguing nonbinding agreements are “a function of the president’s diplomatic power”).
47 Claussen, supra note 5, at 329.
48 See Memorandum of Understanding Between the Government of the United States of America and the Government
of Canada on Trade in Solar Products, Can.-U.S., July 8, 2022 [hereinafter Solar Memorandum],
https://ustr.gov/sites/default/files/US-CA%20Solar%20Agreement_Signed_English_070822.pdf
[https://perma.cc/7QJ3-NRA6]. For background information on this dispute, see CRS In Focus IF12995, International
Trade Agreements and U.S. Tariff Laws, by Christopher T. Zirpoli, Christopher A. Casey, and Cathleen D. CiminoIsaacs (2025).
49
Solar Memorandum, supra note 48, at 4.
50 506 F.2d 136 (D.C. Cir. 1974), cert. denied, 421 U.S. 1004 (1975).
51 Id. at 138.
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import restrictions under trade remedy statutes enacted by Congress.52 Plaintiffs sought an order
declaring that the executive branch’s actions in obtaining these undertakings were ultra vires (i.e.,
beyond the scope of its legal authority).53 The court found that these voluntary undertakings
“d[id] not purport to be enforceable, either as contracts or as governmental actions with the force
of law.”54 Finding that the undertakings were voluntary or “precatory” in nature, the court held
that they were not preempted by Congress’s constitutional power over foreign commerce or by
trade legislation enacted by Congress.55 Consumers Union may have debatable implications for
the President’s power to shape international trade commitments, since the court’s opinion
arguably turned more on finding that the steel import undertakings were not enforceable
domestically than on whether they created binding international commitments.56
A dissenting opinion in Consumers Union appeared to characterize the undertakings as binding
international agreements, observing that the undertakings “were the result of bilateral bargaining
and agreement,” included “reciprocal undertakings” by the U.S. government to engage in
consultations rather than unilaterally impose import quotas or tariffs on steel, and set forth
“specific limitations” on the volume of imported steel.57 While not conceding that the
undertakings were unenforceable domestically,58 the dissent argued that these undertakings
created international obligations regardless of whether they were enforceable:
Even if judicial enforcement was not contemplated by the parties, the arrangements still
embody a restraint. Trade agreements between foreign nations, and indeed many
international agreements, may be ‘enforceable’ only in the sense that they depend for
enforcement on ‘good faith’ performance by the parties. That does not make them any the
less solemn agreements, that are both intended to affect the conduct of the parties and likely
to have that result.59
The dissent contended that the undertakings at issue were inconsistent both with congressional
enactments regarding international trade agreements—which, it claimed, “represent[] Congress’s
understanding that the Executive’s power in regard to the negotiation of trade agreements derives
from statutory authorization by Congress”60—and with “procedural safeguards” in statutes that
give the President certain authorities to restrict U.S. imports.61 Thus, it concluded, the
undertakings were inconsistent with “a comprehensive scheme occupying the field of import
restraints” enacted by Congress.62 The dissent argued that, notwithstanding the President’s
constitutional power to conduct diplomacy, “the executive cannot, through its communications,
52 See id. at 139.
53 See id. at 140.
54 Id. at 138, 143.
55 Id. at 138, 143–44. The court stated: “There is no potential for conflict . . . between exclusive congressional
regulation of foreign commerce—regulation enforced ultimately by halting violative importations at the border—and
assurances of voluntary restraint given to the Executive.” Id. at 143.
56 Cf. id. at 142 (stating in dicta that the President could not “impose mandatory import quotas” or alter tariff rates
unless Congress delegated the authority to do so).
57 Id. at 146, 149–51 (Leventhal, J., dissenting).
58 See id. at 150 (“I fail to see why the courts would or should refrain from enforcement if sought.”).
59 Id. at 151; see also id. at 152 (“A good faith agreement with the kind of specificity present here puts an obligation on
the foreign producer, in any realistic assessment.”).
60
Id. at 153.
61 Id. at 154.
62 Id. at 146.
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manage foreign commerce in a manner lying outside a comprehensive, regulatory scheme
Congress has enacted pursuant to its Article I, § 8 power.”63
Trends in Legal Bases for Foreign Trade Agreements
This section discusses trends regarding how the legal authorities undergirding U.S. trade
agreements may have shifted during the late 20th and early 21st centuries. During this period, the
United States entered into a number of trade agreements expressly authorized or approved by
Congress, thus fitting the traditional model of congressional-executive agreements described in
the preceding section. At the same time, the United States entered into an increasing number of
foreign trade agreements on various nontariff matters without express congressional
authorization.
Trade Promotion Authority: A Traditional Model
The United States has often entered into foreign trade agreements via congressional-executive
agreements.64 Many of these congressional-executive trade agreements concern tariffs and have
taken the form of either FTAs or presidential proclamations to reduce tariffs within limits
established by Congress. Congress at various times in the last 50 years granted the President trade
promotion authority (TPA), also known as “fast-track” trade authority, which established a
comprehensive framework providing for both FTAs and tariff-reducing proclamations.65 The most
recent TPA, known as TPA-2015,66 expired in July 1, 2021, leaving this framework for
congressional-executive trade agreements unavailable unless Congress chooses to reauthorize it.
Free Trade Agreements (FTAs)
FTAs are generally defined as trade agreements that substantially eliminate tariffs between two or
more countries.67 This definition corresponds to the General Agreement on Tariffs and Trade
(GATT), which allows two or more countries to form a “free trade area” in which “duties and
other restrictive regulations of commerce [with some exceptions] are eliminated on substantially
all the trade between the constituent territories.”68 This allowance for free trade areas is an
exception to GATT’s “most-favoured nation” (MFN) rule, which generally prohibits member
states from extending preferential tariff reductions to some but not all member countries.69 FTAs
are the vehicle by which the United States has agreed to establish such free trade areas with other
63 Id. at 149. Such action, the dissent argued, is outside the President’s power under the so-called Youngstown
framework. See id. (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring)); see also infra notes 121–123 and accompanying text (summarizing the Youngstown framework).
64 See BRADLEY, supra note 30, at 79–80.
65 For background on TPA, see CRS Report RL33743, Trade Promotion Authority (TPA) and the Role of Congress in
Trade Policy, by Cathleen D. Cimino-Isaacs and Christopher A. Casey (2015); CRS In Focus IF10038, Trade
Promotion Authority (TPA), by Christopher A. Casey and Cathleen D. Cimino-Isaacs (2024).
66 See TPA-2015, Pub. L. No. 114-26, 129 Stat. 319.
67 See Claussen, supra note 5, at 325 n.27 (noting the term FTA is “typically reserved” for those agreements that “bring
substantially all tariffs on goods between two or more countries down to zero”).
68 General Agreement on Tariffs and Trade 1994, art. XXIV, Apr. 15, 1994, Marrakesh Agreement Establishing the
World Trade Organization, Annex 1A, 1867 U.N.T.S. 190.
69 See id., art. I. For more information, see CRS In Focus IF12995, International Trade Agreements and U.S. Tariff
Laws, by Christopher T. Zirpoli, Christopher A. Casey, and Cathleen D. Cimino-Isaacs (2025).
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countries; for example, the first U.S. FTA, with Israel, was formally titled an “agreement on the
establishment of a free trade area.”70
Under TPA, Congress established rules committing both the House and Senate to approve or
reject implementing legislation for U.S. FTAs without amendment or filibuster, using expedited
procedures, if the executive branch adhered to certain requirements.71 The TPA framework
allowed Congress to set negotiating objectives for FTAs and established a process for Congress
simultaneously to give ex post approval for agreements meeting the statutory objectives and to
implement them into domestic law.72
The United States used the TPA framework to negotiate, approve, and implement several bilateral
and regional FTAs. Between 1985 and 2020, the United States entered into 16 FTAs, including all
14 U.S. FTAs currently in force.73 Congress approved and implemented all but one of these
agreements via legislation passed under TPA.74 The sole exception, the FTA between the United
States and Jordan, was also approved and implemented via legislation passed by Congress,
although not under TPA’s fast-track procedures.75 Thus, all 16 of the “comprehensive” FTAs the
United States has entered into have taken the form of congressional-executive agreements.76
Congress approved and implemented the most recent comprehensive FTA, USMCA, pursuant to
the last iteration of TPA, which expired shortly thereafter.77
Scholars generally accept that the United States may enter into FTAs via congressional-executive
agreements, including under TPA.78 In addition to being supported by long-standing practice,79
congressional-executive FTAs arguably find support in the Constitution’s text, which gives
Congress—not only the Senate—power over foreign commerce, tariffs, and revenue.80
Congressional-executive trade agreements might be seen as preferable to treaties to the extent that
a treaty might be understood as circumventing the authority of the House of Representatives with
70 See Agreement on the Establishment of a Free Trade Area between the Government of Israel and the Government of
the United States of America, Isr.-U.S., Apr. 22, 1985, https://ustr.gov/trade-agreements/free-trade-agreements/israelfta [https://perma.cc/XM72-KNGR].
71 See Trade Act of 1974, Pub. L. No. 93-618, § 151, 88 Stat. 1978 (1975) (codified at 19 U.S.C. § 2191) (establishing
such fast-track procedures “as an exercise of the rulemaking power of the House of Representatives and the Senate”);
see also TPA-2015 § 103(b) (codified at 19 U.S.C. § 4202) (applying “trade authority procedures from” Trade Act of
1974, 19 U.S.C. § 2191, to qualifying agreements under TPA-2015).
72 For more information, see CRS In Focus IF10038, Trade Promotion Authority (TPA), by Christopher A. Casey and
Cathleen D. Cimino-Isaacs (2024).
73 See CRS Report R45846, Congressional Votes on Free Trade Agreements and Trade Promotion Authority, by Keigh
E. Hammond (2025) (identifying 12 bilateral and 2 regional U.S. FTAs currently in force).
74 See id.
75 See id.; United States-Jordan Free Trade Area Implementation Act, Pub. L. No. 107-43, 115 Stat. 243 (2001)
(codified at 19 U.S.C. § 2112 note).
76 Sometimes Congress enacted legislation that simultaneously gave ex post approval to an FTA and implemented that
agreement into federal law. See, e.g., USMCA Implementation Act, Pub. L. No. 116-113, 134 Stat. 11 (2020).
77 See id.
78 See Koh, supra note 33, at 339–40 (stating that debates around NAFTA established that “congressional-executive
agreements should be treated as instruments legally interchangeable with Article II treaties . . . particularly where
Congress is exercising its foreign commerce power”).
79 Cf. Kathleen Claussen & Tim Meyer, The President’s (and USTR’s) Trade Agreement Authority: From Fisheries to
IPEF, INT’L ECON. L. & POL’Y BLOG (July 15, 2022, at 6:58 ET),
https://worldtradelaw.typepad.com/ielpblog/2022/07/the-presidents-and-ustrs-trade-agreement-authority-fromfisheries-to-ipef-.html [https://perma.cc/F6LS-PFZF] (“[E]very presidential administration has likewise sought
congressional consent to enter into significant bilateral, plurilateral, or multilateral trade agreements since at least the
1970s.”).
80 See U.S. CONST. art. I, § 8, cls. 1, 3.
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respect to foreign commerce, tariffs, or revenue.81 Consistent with this view, some Members of
Congress contend that congressional-executive agreements are the only permissible form for
FTAs.82 As a practical matter, courts may be unlikely to entertain claims that congressionalexecutive FTAs are an unconstitutional alternative to treaties, as at least one appellate court has
dismissed such a lawsuit as presenting a “political question” to be decided by Congress and the
President.83
Tariff Proclamation Authority
In addition to creating a procedure for Congress to give ex post approval to FTAs negotiated by
the President, TPA legislation has sometimes given the President limited ex ante authority to enter
into and implement agreements making certain limited adjustments to tariffs by proclamation.
TPA-2015, for example, authorized the President to enter into and implement trade agreements
with foreign countries to reduce “duties or other import restrictions” if the President determined
that such duties were “unduly burdening and restricting.”84 The law permitted the President to
reduce tariffs in effect as of June 29, 2015, by up to 50%, subject to certain limitations.85 TPA2015 required that the President notify Congress of his “intention to enter into an agreement”
under this proclamation authority,86 but it did not require congressional approval of such
agreements or tariff reductions. The previous version of TPA, the Bipartisan Trade Promotion
Authority Act of 2002,87 gave the President similar authority to enter into and implement limited
tariff reduction agreements without further congressional action.88
The most recent use of such proclamation authority by the President came in December 2020,
when President Donald Trump entered into and implemented a trade agreement with the
European Union to reduce certain tariffs pursuant to his authority under TPA-2015.89 President
Trump also invoked this proclamation authority to enter into and implement the U.S.-Japan Trade
Agreement in 2019.90 The President currently lacks such statutory proclamation authority
following the expiration of TPA-2015 in 2021.
81 Cf. Whether the Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232 (Nov. 22, 1994)
(noting potential tension between the Constitution’s treaty and foreign commerce provisions).
82 See Senate Finance Letter, supra note 39, at *1 (“There is no question that comprehensive free trade agreements that
include reciprocal tariff reductions and dispute resolution mechanisms must be approved and implemented by
Congress.”).
83 See Made in the USA Found. v. United States, 242 F.3d 1300, 1302 (11th Cir. 2001) (dismissing action challenging
constitutionality of NAFTA on the basis that “what constitutes a ‘treaty’ requiring Senate ratification presents a
nonjusticiable political question”).
84 TPA-2015, Pub. L. No. 114-26, § 103(a), 129 Stat. 319 (codified at 19 U.S.C. § 4202(a)). See CRS In Focus
IF11400, Presidential Authority to Address Tariff Barriers in Trade Agreements under Trade Promotion Authority
(TPA), by Christopher A. Casey (2024).
85 19 U.S.C. § 4202(a)(1), (3).
86 Id. § 4202(a)(2).
87 Trade Act of 2002, Pub. L. 107-210, 116 Stat. 933 (codified at 19 U.S.C. § 3801–3813).
88 19 U.S.C. § 3803(a).
89 See Press Release, Off. of the U.S. Trade Representative, Joint Statement of the United States and the European
Union on a Tariff Agreement (Aug. 21, 2020), https://ustr.gov/about-us/policy-offices/press-office/pressreleases/2020/august/joint-statement-united-states-and-european-union-tariff-agreement [https://perma.cc/2WQMEZVD].
90 See Trade Agreement Between the United States of America and Japan, Japan-U.S., Oct. 7, 2019, T.I.A.S. 20-101.2;
Proclamation 9974, 84 Fed. Reg. 72187, 72188 (Dec. 26, 2019) (“I notified the Congress that I intended to enter into an
agreement regarding tariff barriers with Japan under section 103(a) of the Trade Priorities Act.”).
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Trade Agreements Not Approved by Congress: A Potential
New Model
While the expiration of TPA-2015 has made the prospects for future congressional-executive
trade agreements uncertain, some scholarship has highlighted the degree to which Presidents in
recent decades have entered into trade deals without specific congressional approval or
authorization. These trade deals have sometimes been referred to as “mini” or “skinny” trade
deals or “trade executive agreements,” as distinguished from more comprehensive agreements
such as FTAs.91 While these agreements do not alter tariff rates, they can create internationally
binding obligations, as discussed in this section.
This report refers to these agreements as “hybrid” trade agreements because they are difficult to
classify according to the traditional categories of congressional-executive and sole executive
agreements. Unlike congressional-executive agreements, they are entered into without specific ex
ante or ex post congressional approval. On the other hand, unlike sole executive agreements, they
are not necessarily based on the President’s independent constitutional powers, but purport to rest
at least partly on powers Congress has delegated by statute to the executive branch. Thus, one
former State Department legal advisor claims that the United States enters into a “plethora” of
agreements that are not truly sole executive agreements (which are, he claims, “extremely
rare”).92 Similarly, one former USTR counsel argues that, although these agreements are not
approved by Congress, “they are not sole executive agreements”93 because they “do not rely
solely on executive authority in most instances” but rather “are typically negotiated pursuant to
delegated authority, even if stretching its limits.”94
As one example of such practice, in 2022, the Biden Administration launched the Indo-Pacific
Economic Framework for Prosperity (IPEF) with several trading partners in that region.95 IPEF
was divided into four issue areas, or “pillars,” comprising trade, supply chains, clean economy
(clean energy, decarbonization, and infrastructure), and fair economy (tax and anticorruption).96
Although the IPEF countries did not reach an agreement on the trade pillar,97 they reached
agreements regarding the supply chain, clean economy, and fair economy pillars, as well as an
agreement on the collective operation of IPEF.98 While the Biden Administration indicated a
91 Claussen, supra note 5, at 318, 320, 325.
92 Koh, supra note 33, at 341–42.
93 Claussen, supra note 5, at 325.
94 Id. at 325 n.28.
95 See CRS In Focus IF12373, Indo-Pacific Economic Framework for Prosperity (IPEF), by Cathleen D. Cimino-
Isaacs, Kyla H. Kitamura, and Mark E. Manyin (2024). The other participating countries were Australia, Brunei
Darussalam, Fiji, India, Indonesia, Japan, the Republic of Korea, Malaysia, New Zealand, the Philippines, Singapore,
Thailand, and Vietnam.
96 Indo-Pacific Framework for Economic Prosperity (IPEF), OFF. OF THE U.S. TRADE REPRESENTATIVE,
https://ustr.gov/trade-agreements/agreements-under-negotiation/indo-pacific-economic-framework-prosperity-ipef
[https://perma.cc/A7D9-G7XB] (last visited Sept. 23, 2025).
97 See Erin L. Murphy, IPEF: Three Pillars Succeed, One Falters, CTR. FOR STRATEGIC AND INT’L STUDIES (Nov. 21,
2023), https://www.csis.org/analysis/ipef-three-pillars-succeed-one-falters [https://perma.cc/V6DH-QG54].
98 Indo-Pacific Economic Framework for Prosperity Agreement Relating to Supply Chain Resilience, Nov. 23, 2023,
T.I.A.S. 24-224; Indo-Pacific Economic Framework for Prosperity Agreement Relating to Clean Economy, June 6,
2024, T.I.A.S. 24-1011.1; Indo-Pacific Economic Framework for Prosperity Agreement Relating to Fair Economy,
June 6, 2024, T.I.A.S. 24-1012; Agreement on Indo-Pacific Economic Framework for Prosperity, June 6, 2024,
T.I.A.S. 24-1011.
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desire to consult with Congress on IPEF,99 it did not submit any IPEF agreements to Congress for
approval or commit to doing so.100 Some Members of Congress contended that such agreements
required congressional approval, as they “regulate foreign commerce and reshape international
trade flows.”101
As another example, in October 2019, the first Trump Administration entered into the U.S.-Japan
Digital Trade Agreement.102 This agreement contained bilateral commitments regarding several
aspects of digital trade, including customs duties and nondiscrimination, cross-border data flows
and data localization, consumer protection and privacy, source code and technology transfer,
liability for interactive computer services, cybersecurity, government data, and cryptography.103
While the first Trump Administration cited TPA-2015 as its authority to enter into a separate,
contemporaneous agreement between the United States and Japan to lower certain tariffs,104 it did
not identify the source of its authority for the Digital Trade Agreement, simply referring to it as an
“executive agreement.”105 Some Members of the House of Representatives requested that USTR
identify “the authority the Administration is relying on to enter” the agreement.106 Based on
publicly available sources, it is unclear whether USTR provided a formal response.
Some commentators contend that hybrid trade agreements have assumed a larger role in U.S.
trade policy compared with traditional FTAs.107 According to one study, the use of these
agreements has increased over time, especially since the 1990s.108 These agreements have also
expanded in scope in recent years.109 Some reasons for these shifts may include political
resistance to reauthorizing TPA or approving new FTAs, as illustrated by the United States not
entering into the proposed Trans-Pacific Partnership (TPP),110 as well as procedural challenges in
99 Rozanna Latiff & Liz Lee, U.S. Says New Indo-Pacific Economic Framework Not Typical Trade Deal, REUTERS
(Nov. 18, 2021), https://www.reuters.com/world/asia-pacific/us-malaysia-agree-transparency-semiconductormanufacturing-supply-chains-2021-11-18/ [https://perma.cc/3KAF-8QAX].
100 See Press Release, White House, On-the-Record Press Call on the Launch of the Indo-Pacific Economic Framework
(May 23, 2022), https://bidenwhitehouse.archives.gov/briefing-room/press-briefings/2022/05/23/on-the-record-presscall-on-the-launch-of-the-indo-pacific-economic-framework/ [https://perma.cc/F5GT-KXHA] (“Let’s see where these
negotiations take us, and let’s see where the discussions go.”).
101 See Senate Finance Letter, supra note 39.
102 See Agreement Between the United States of America and Japan Concerning Digital Trade, Oct. 7, 2019, T.I.A.S.
20-101.1.
103 See id.; see also CRS Report R46140, “Stage One” U.S.-Japan Trade Agreements, by Cathleen D. Cimino-Isaacs
and Anita Regmi (2019) (summarizing components of 2019 United States-Japan agreements).
104 See supra note 90 and accompanying text.
105 Press Release, White House, Presidential Message to Congress Regarding the Notification of Initiation of United
States-Japan Trade Agreement (Sept. 16, 2019), https://trumpwhitehouse.archives.gov/briefingsstatements/presidential-message-congress-regarding-notification-initiation-united-states-japan-trade-agreement/
[https://perma.cc/RHW5-VCMR].
106 Pascrell and Kildee Seek Answers on Japan Trade Agreements, INSIDERNJ, Nov. 27, 2019,
https://www.insidernj.com/press-release/pascrell-kildee-seek-answers-japan-trade-agreements/ [https://perma.cc/4UFF7ZX8].
107 See Rumours of the Trade Deal’s Death Are Greatly Exaggerated, THE ECONOMIST, June 13, 2024,
https://www.economist.com/finance-and-economics/2024/06/13/rumours-of-the-trade-deals-death-are-greatlyexaggerated [https://perma.cc/KXE4-KXDL].
108 See Claussen, supra note 5, at 342–43.
109 See id. at 345.
110 See David J. Lynch, Biden’s Course for U.S. on Trade Breaks with Clinton and Obama, WASH. POST, Aug. 27,
2023, https://www.washingtonpost.com/business/2023/08/27/biden-trade-trump/ [https://perma.cc/86VD-E4P5]; CRS
In Focus IF12078, CPTPP: Overview and Issues for Congress, by Cathleen D. Cimino-Isaacs (2023).
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obtaining congressional approval for trade deals.111 A possible advantage of hybrid trade
agreements is that they may be able to address numerous specific circumstances in U.S. trade
relations that Congress cannot easily anticipate or address as a practical matter.112
Some Members of Congress have criticized these agreements as not falling within
constitutionally permitted forms of treaties, congressional-executive agreements, or sole
executive agreements.113 In addition, some commentators have criticized hybrid trade agreements
for their seeming lack of transparency.114 Scholarly research and Freedom of Information Act
requests have sought to reveal the extent to which the executive branch has used these
agreements.115 One study identified 1,225 such agreements and noted that some were not publicly
available or required subscription services to identify or obtain.116 Another criticism from some
commentators is that the executive branch often does not identify the source of its authority to
enter into these agreements, with some agreements apparently lacking or exceeding authority that
Congress has delegated to the executive branch.117 The enactment of the James M. Inhofe
National Defense Authorization Act for Fiscal Year 2023 (2023 NDAA),118 which expanded
requirements for the executive branch to disclose international agreements and its purported legal
authority to enter into them,119 may increase transparency surrounding hybrid trade agreements.120
Constitutionality of Hybrid Trade Agreements
As described in the preceding sections, the proliferation of hybrid trade agreements has sparked
debate about whether or not they are constitutional. Commentators, Members of Congress, and
executive branch officials have advanced various arguments for and against the legality of these
trade agreements. This section considers three arguments that proponents have advanced to
support the constitutionality of hybrid trade agreements: (1) trade authorities that Congress has
purportedly delegated to USTR; (2) existing laws that allow the executive branch to implement
certain trade agreements without the need for new legislation; and (3) possible congressional
acquiescence to these agreements.
111 See Koh, supra note 33, at 340 (arguing that “the number of Senators needed to block consideration of such an
agreement has declined” due to use of the filibuster and other practices).
112 See Claussen, supra note 5, at 357–58 (“Congress sweeps in broad strokes and cannot be expected to anticipate
every cross-border issue that may arise.”).
113 See Senate Finance Letter, supra note 39 (“There are only three constitutional mechanisms for binding the United
States to an international agreement: invocation of the Treaty Clause of the Constitution; a ‘congressional-executive
agreement,’ which requires approval of the majority of both houses of Congress; and a sole executive agreement
covering matters reserved by Article II of the Constitution to the President.”).
114 See, e.g., Claussen, supra note 5, at 322 (“Ultimately, the biggest obstacle to studying [trade executive agreements]
is finding them.”).
115 See Claussen, supra note 5, at 378–81; Oona A. Hathaway, Curtis A. Bradley & Jack L. Goldsmith, The Failed
Transparency Regime for Executive Agreements: An Empirical and Normative Analysis, 134 HARV. L. REV. 629, 635,
673–74 (2020).
116 See Claussen, supra note 5, at 322.
117 Id. at 326 & n.36.
118 2023 NDAA, Pub. L. No. 117-263, § 5947, 136 Stat. 2395, 3476–82 (2022) (codified at 1 U.S.C. §§ 112a–112b).
119 See CRS Legal Sidebar LSB11050, International Agreements (Part III): Transparency Measures, by Steve P.
Mulligan (2023).
120 See Information Relating to International Agreements: Case Act Reporting, U.S. DEP’T OF STATE (July 9, 2025),
https://foia.state.gov/Search/IRIA.aspx [https://perma.cc/C2AW-9EGQ] (providing information pursuant to 1 U.S.C. §
112b on a monthly basis since October 2023).
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Examination of these arguments may illuminate where hybrid trade agreements fall in the
tripartite Youngstown framework the Supreme Court has sometimes used to determine the scope
of executive power.121 Under this framework, presidential power is considered to be at its
broadest where “the President acts pursuant to an express or implied authorization of Congress”
(category 1); is less broad where there is neither “a congressional grant or denial of authority”
(category 2); and is narrowest where the President acts contrary to “the expressed or implied will
of Congress” (category 3).122 The Court has explained that executive action does not always fit
neatly into one of these categories but rather may fall along “a spectrum running from explicit
congressional authorization to congressional prohibition.”123
U.S. Trade Representative Authorities
USTR typically plays a leading role in negotiating U.S. trade agreements.124 The Biden
Administration argued that Congress gave USTR the authority to enter into trade agreements by
enacting USTR’s organic statute, 19 U.S.C. § 2171 (Section 2171), and that, “[f]or at least the last
30 years, USTR has negotiated and entered into numerous agreements pursuant solely to this
authority.”125 For instance, USTR took the position that an October 2024 trade agreement with
Israel “was concluded under USTR’s general authority to negotiate and conclude agreements,
including 19 U.S.C. § 2171 and relevant Executive Orders.”126 In addition, USTR claimed both
Section 2171 and Article II of the Constitution as providing legal authority to enter into the IPEF
fair economy agreement.127 If the executive branch’s interpretation of Section 2171 is correct,
presidential power in this area might be at its maximum extent under the Youngstown framework.
Section 2171(c)(1) states in part that USTR “shall . . . have primary responsibility for developing,
and for coordinating the implementation of, United States international trade policy.”128 It also
provides that USTR “shall . . . have lead responsibility for the conduct of, and shall be the chief
representative of the United States for, international trade negotiations, including all negotiations
on any matter considered under the auspices of the World Trade Organization.”129 This language
does not expressly give USTR authority to enter into trade agreements, prompting some
121 See Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635–38 (1952) (Jackson, J., concurring)).
122 Zivotofsky, 576 U.S. at 10 (quoting Youngstown, 343 U.S. at 635, 637 (Jackson, J., concurring)).
123 Dames & Moore v. Regan, 453 U.S. 654, 669 (1981).
124 Claussen, supra note 5, at 333–36.
125 Letter from Katherine Tai, U.S. Trade Representative, and Gina M. Raimondo, Sec’y of Com., to Ron Wyden,
Chair, S. Comm. on Fin. (May 30, 2023),
https://insidetrade.com/sites/insidetrade.com/files/documents/2023/jun/wto2023_0452a.pdf [https://perma.cc/G34ALBAV]; Biden Administration’s 2023 Trade Policy Agenda with United States Trade Representative, Ambassador Tai:
Hearing Before the H. Comm. on Ways & Means, 118th Cong. (2023), http://waysandmeans.house.gov/wpcontent/uploads/2023/07/FINAL-Website-Tai-Transcript.pdf [https://perma.cc/38V6-N6HK] (USTR citing Section
2171 as authority to enter into certain agreements in response to questions for the record).
126 Dep’t of State, Information Relating to International Agreements Reported to Congress (Nov. 27 2024),
https://foia.state.gov/_docs/CaseAct/2024.11.27%20-%201%20USC112b.a.1.%20information%20%20International%20Agreements.pdf [https://perma.cc/BQ2M-VTNS] (stating legal authority for “Agreement
Between the United States of America and Israel Extending the Agreement on Certain Aspects of Trade in Agricultural
Products of July 27, 2004, as extended”).
127 See id. (stating legal authority for “Indo-Pacific Economic Framework for Prosperity Agreement Relating to a Fair
Economy”). By contrast, USTR claimed Article II but not Section 2171 as legal authority for the IPEF clean economy
and framework agreements. See id.
128 19 U.S.C. § 2171(c)(1)(A).
129 Id. § 2171(c)(1)(C).
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commentators to claim that “nothing about § 2171 gives the USTR the authority to enter into or
bring into force trade-related agreements.”130 USTR, however, appears to contend that Section
2171 implicitly gives it such authority.131
Separation of powers considerations may cut against interpreting Section 2171(c)(1) as implicitly
giving USTR authority to enter into trade agreements without congressional approval. In giving
USTR “responsibility” for “international trade policy” and “international trade negotiations,” the
statute may simply give USTR responsibility for powers already held by the President—namely,
the conduct of foreign relations and negotiations with foreign governments. In other words,
Section 2171(c)(1) may be read simply as an administrative provision allocating responsibilities
within the executive branch.132 Thus, it is unclear whether a court would view the statute’s
assignment of these responsibilities to USTR as including an implicit authorization for USTR to
enter into trade agreements.
The legislative history and statutory context of Section 2171(c)(1) might provide additional
reason to doubt that the statute gives USTR authority to enter into trade agreements. Section 2171
was first enacted by the Trade Act of 1974,133 and most of its current language was enacted by the
Omnibus Trade and Competitiveness Act of 1988.134 Both of these acts also authorized (or
reauthorized) TPA,135 which—as explained above—required congressional approval to enter into
any FTAs and gave the President limited ex ante authority to proclaim tariff reductions. Thus,
interpreting Section 2171(c)(1) to give USTR broad yet implicit authority to enter into trade
agreements without any congressional approval would appear to conflict with the statutes’ other
provisions and overall scheme, which strictly delineated the scope of the President’s authority to
enter into certain kinds of trade agreements with and without further congressional action.
130 Kathleen Claussen & Tim Meyer, The New U.S.-Taiwan Trade Agreement and Its Approval, INT’L ECON. L. &
POL’Y BLOG (July 5, 2023), https://ielp.worldtradelaw.net/2023/07/the-new-us-taiwan-trade-agreement-and-itsapproval.html [https://perma.cc/7KFV-M755].
131 See Claussen & Meyer, supra note 79 (“Relying on this statute to justify USTR’s approach concedes that Congress
must consent, but rather than referring to Congress’s silence, proponents here point to the organic statute as an implicit
delegation not only to negotiate, but also to conclude agreements.”).
132 Other parts of the Trade Act of 1974 expressly limit the President’s authority to make changes to domestic law
without either new implementing legislation or existing statutory authority. See Pub. L. No. 93-618, § 121, 88 Stat.
1978, 1986–87 (1975) (“If the President enters into a trade agreement which establishes rules or procedures . . . and if
the implementation of such agreement will change any provision of Federal law (including a material change in an
administrative rule), such agreement shall take effect with respect to the United States only if the appropriate
implementing legislation is enacted by the Congress unless implementation of such agreement is effected pursuant to
authority delegated by Congress.”).
133 See id. § 141 (stating, inter alia, that USTR shall “be the chief representative of the United States for each trade
negotiation under this title”). The office of USTR—then called the Special Representative for Trade Negotiations—was
established earlier, in 1962. See Trade Expansion Act of 1962, Pub. L. No. 87-794, § 241, 76 Stat. 872, 878 (1962). The
Trade Expansion Act of 1962 created USTR to replace the State Department as “the lead agency for trade lawmaking
in the United States.” Claussen, supra note 5, at 333.
134 See Pub. L. No. 100-418, § 1601(a)(1), 102 Stat. 1107, 1260–61 (1988) (amending Section 2171(c)(1) to state that
USTR has “primary responsibility for developing, and for coordinating the implementation of, United States
international trade policy” and that USTR shall “have lead responsibility for the conduct of, and shall be the chief
representative of the United States for, international trade negotiations”).
135 See Pub. L. No. 93-618, §§ 101, 124 (presidential authority to enter into certain agreements and proclaim
implementing tariff reductions without congressional approval); id. §§ 102, 151–154 (provisions concerning TPA);
CRS Report R43491, Trade Promotion Authority (TPA): Frequently Asked Questions, by Cathleen D. Cimino-Isaacs,
Christopher A. Casey, and Christopher M. Davis (2019) (“Trade promotion authority was first enacted on January 1,
1975, under the Trade Act of 1974.”).
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Certain constitutional doctrines might also caution against interpreting Section 2171(c)(1) as
implicitly giving USTR authority to enter into trade agreements.136 In recent years, the Supreme
Court has increasingly employed one such doctrine—the major questions doctrine—to hold that
statutes do not grant agencies certain regulatory authorities.137 Under this doctrine, the Supreme
Court has sometimes rejected agency claims of regulatory authority when it finds (1) the claimed
authority concerns an issue of “vast ‘economic and political significance,’” and (2) Congress has
not clearly delegated the authority to the agency.138 Although this doctrine more commonly arises
in cases of domestic regulation, it might weigh against interpreting Section 2171(c)(1) as giving
USTR implicit authority to enter into trade agreements, given the economic and political
significance of these agreements.
A related doctrine, the nondelegation doctrine, might also weigh against such an interpretation of
Section 2171(c)(1). Under this doctrine, Congress may not delegate its legislative function to
other branches of government.139 In practice, the nondelegation doctrine typically requires that,
when Congress authorizes federal agencies to carry out certain functions, it must provide an
“intelligible principle” to guide the executive branch’s implementation of those functions.140 In
the case of Section 2171(c)(1), construing the statute to give USTR the authority to enter into
foreign trade agreements might result in an unconstitutional delegation of Congress’s foreign
commerce power, since Section 2171(c)(1) does not appear to provide guidance as to how or for
what purpose USTR is supposed to exercise that authority. On the other hand, the Supreme Court
has allowed Congress to delegate broader authority to the President in the area of foreign affairs,
reasoning that the President requires greater latitude in this field.141
For the time being, there does not appear to be any published case law discussing the scope of
USTR’s powers under Section 2171(c)(1). It is possible that courts would decline to adjudicate
the question of whether Section 2171 authorized USTR to enter into trade agreements without
congressional approval, as courts have sometimes declined to decide cases involving the
permissibility of international agreements on grounds that they present as a political question.142
On the other hand, courts might be willing to decide the scope of USTR’s powers under Section
2171(c)(1) on the basis that doing so would resolve a question of statutory interpretation and not
simply a constitutional debate.143
136 Cf. Claussen & Meyer, supra note 79 (“Constitutional scholars may find that construing that language to permit
USTR to enter into trade agreements poses nondelegation doctrine or major questions doctrine problems.”).
137 See CRS In Focus IF12077, The Major Questions Doctrine, by Kate R. Bowers (2022).
138 See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 160 (2000)); see also West Virginia v. EPA, 597 U.S. 697, 700 (2022) (“Under this body of law, known
as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative
intent, the agency must point to ‘clear congressional authorization’ for the authority it claims.”) (quoting Utility Air,
573 U.S. at 324).
139 See CRS In Focus IF12292, Recurring Constitutional Issues in Federal Legislation, by Valerie C. Brannon, Victoria
L. Killion, and Sean M. Stiff (2022).
140 Gundy v. United States, 588 U.S. 128, 145–46 (2019).
141 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320–21 (1936) (rejecting a nondelegation challenge on
the ground that “[c]ongressional legislation . . . which is to be made effective through negotiation and inquiry within
the international field must often accord to the President a degree of discretion and freedom from statutory restriction
which would not be admissible were domestic affairs alone involved”).
142 See, e.g., Made in the USA Found. v. United States, 242 F.3d 1300, 1310–19 (11th Cir. 2001) (declining to decide
whether NAFTA was properly entered into via congressional-executive agreement rather than by treaty).
143 Cf. Zivotofsky v. Clinton, 566 U.S. 189, 195–96 (2012) (overturning lower court decision that a case concerning
separation of powers with respect to foreign policy presented a political question where, to resolve case, courts had to
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Existing Laws and Regulatory Authorities
Some trade agreements may place binding obligations on the United States but do not require
Congress to pass new legislation in order for the United States to fulfill those obligations. To the
extent existing laws enacted by Congress allow the executive branch to implement a trade
agreement without the need for new legislation, proponents argue that those existing laws may
provide some support for presidential power to enter into the agreement under the Youngstown
framework.144
One example of such trade agreements and the debate surrounding them is the AntiCounterfeiting Trade Agreement (ACTA), an agreement regarding enforcement of intellectual
property rights signed by the United States and other countries in October 2011.145 The Obama
Administration argued that the United States would be able to fulfill all of its obligations under
ACTA using existing U.S. copyright and trademark statutes.146 Since it was unnecessary for
Congress to pass legislation to implement ACTA, the Administration argued, the United States
could enter into the agreement without congressional approval.147 The Administration argued that
ACTA was consistent with “a long line” of “many” trade-related agreements that “required no
implementing legislation” and thus did not require congressional approval.148
Another variation on trade agreements that do not require implementing legislation are
agreements that commit the U.S. government to use existing rulemaking or regulatory authorities
that Congress has already established.149 Such hybrid trade agreements often serve a “problem
solving” function, addressing discrete issues involving specific products or industries.150 For
instance, in early 2023, the U.S. Alcohol and Tobacco Tax and Trade Bureau issued a labeling
rule to implement a 2020 agreement between the United States and Bolivia regarding certain
alcoholic beverages produced by each country.151 As another example, a 2013 agreement between
the United States and Japan requires the U.S. Department of Agriculture to take specified
measures if Japan gives notice of U.S. noncompliance with certain beef export requirements.152
Neither of these agreements was submitted to Congress for approval.
conduct a “familiar judicial exercise” of “decid[ing] if [plaintiff’s] interpretation of the statute is correct, and whether
the statute is constitutional”); Japan Whaling Ass’n v. Am. Cetacean Soc.’y, 478 U.S. 221, 229–30 (1986) (holding that
political question doctrine did not prevent the Court from adjudicating a controversy requiring it to use “no more than
the traditional rules of statutory construction,” notwithstanding that the case involved an international agreement).
144 See Koh, supra note 33, at 345–49 (arguing that constitutionality of executive agreements under Youngstown
framework may hinge in part on the “degree of congressional approval”); cf. Dames & Moore v. Regan, 453 U.S. 654,
678 (1981) (upholding executive agreement that was not “directly authorize[d]” by Congress in part due to “general
tenor of Congress’s legislation in this area”).
145 The Anti-Counterfeiting Trade Agreement, OFF. OF THE U.S. TRADE REPRESENTATIVE, https://ustr.gov/acta
[https://perma.cc/U82T-N9R7] (last visited Sept. 23, 2025).
146 OFF. OF THE LEGAL ADVISER, U.S. DEP’T OF STATE, DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 95
(CarrieLyn D. Guymon ed., 2012) [hereinafter 2012 INTERNATIONAL LAW DIGEST], https://20092017.state.gov/documents/organization/211955.pdf [https://perma.cc/LF46-B7S5].
147 OFF. OF THE LEGAL ADVISER, U.S. DEP’T OF STATE, DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 110
(CarrieLyn D. Guymon ed., 2011), https://2009-2017.state.gov/documents/organization/194113.pdf
[https://perma.cc/EAQ9-ZGST].
148 Id.
149 Claussen, supra note 5, at 330.
150 See id. at 354–57.
151 See Addition of Singani to the Standards of Identity for Distilled Spirits, 88 Fed. Reg. 2224 (Jan. 13, 2023).
152 See Requirements for Beef and Beef Products to be Exported to Japan from the United States of America (Jan. 25,
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Some advocates of these hybrid trade agreements contend that congressional approval is
unnecessary if a previous congressional enactment has already given the President domestic
implementation authority and the agreement otherwise requires no changes to domestic law.153
Some Members of Congress have criticized this paradigm, arguing that it “confuses the
implementation of an agreement—which may not require congressional action because no
domestic laws need to be altered—and the ability to enter into a binding agreement with other
sovereign nations without congressional approval.”154 Thus, some Members have argued that,
because Article I of the Constitution commits power over foreign trade to Congress,
congressional approval of foreign trade agreements is necessary regardless of whether the
agreements require any new implementing legislation.155
Some Members contend that, even if Congress has already conferred regulatory authority on an
executive agency, Congress should retain the power to decide whether the United States will
commit itself to exercising that authority in a specific way as a matter of international law. One
Member, for example, noted that, under customary international law, an agreement such as ACTA
can create binding obligations for the United States even if the agreement lacks congressional
approval.156 These obligations can usurp Congress’s ability to regulate foreign trade and place
potential future congressional enactments at odds with U.S. international legal obligations.157 On
the other hand, executive branch officials have argued that, in the event Congress later passes
legislation inconsistent with such trade agreements, the United States may be able to resolve such
conflicts either by withdrawing from or by persuading other countries to amend the
agreements.158
Congressional Acquiescence
The executive branch might argue that congressional acquiescence has made hybrid trade
agreements constitutionally permissible.159 When there is a “systematic, unbroken, executive
practice, long pursued to the knowledge of the Congress and never before questioned,” the
Supreme Court sometimes treats the historical practice as a “gloss” that informs the scope of
2013),
https://ustr.gov/sites/default/files/Requirements%20for%20Beef%20and%20Beef%20Products%20to%20be%20Export
ed%20to%20Japan%20from%20the....pdf [https://perma.cc/EY9M-RERA].
153 See Koh, supra note 33, at 345–48; Daniel Bodansky & Peter Spiro, Executive Agreements+, 49 VAND. J.
TRANSNAT’L L. 885, 927 (2016). Further, some proponents argue that, if an international agreement requires the United
States to do something it was already required to do under domestic law, no congressional approval is required. See
Koh, supra note 33, at 346 (“If the only international obligation that the Executive Branch assumes is to carry out
domestic legal obligations that already exist, there seems little reason why new congressional approval should be
required: the United States is only reaffirming an existing constitutional obligation to obey domestic law.”).
154 Senate Finance Letter, supra note 39; see also Letter from Senator Ron Wyden to President Barack Obama (Oct. 12,
2011) [hereinafter Wyden Letter],
https://www.wyden.senate.gov/imo/media/doc/Wyden%20Letter%20to%20Obama%20ACTA%20Oct%202011.pdf
[https://perma.cc/3V4A-PVUP] (claiming the argument “confuses the issue by conflating two separate stages . . . :
entry and implementation”).
155 Wyden Letter, supra note 154.
156 See id.
157 See id.
158 See 2012 INTERNATIONAL LAW DIGEST, supra note 146.
159 Cf. Claussen, supra note 5, at 353 (“Speaking broadly, [trade executive agreements] operate in a zone of
congressional approval verging on congressional acquiescence.”).
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presidential power under the Youngstown framework.160 In Dames & Moore v. Regan, for
example, the Supreme Court upheld the constitutionality of an international agreement
terminating certain claims against the Iranian government based, in part, on long-standing
executive practice and congressional acquiescence.161
In 2008, the Supreme Court stated that congressional acquiescence supports only those assertions
of executive power that fall in the second Youngstown category, where Congress has neither
granted nor denied authority to the executive.162 Seven years later, the Court considered historical
congressional acquiescence in upholding an assertion of presidential authority in the third
Youngstown category, holding that the President has exclusive authority to recognize foreign
states and striking down a statute that the Court determined to infringe on that authority.163
Given the volume of hybrid trade agreements in existence today, the executive branch might
argue that Congress has implicitly acquiesced to these agreements as a “consistent executive
practice” that Congress “has essentially accepted.”164 On the other hand, the Supreme Court has
suggested that the Dames & Moore analysis regarding congressional acquiescence might be
relevant only to a “narrow set of circumstances” where presidential action is supported by a
“particularly longstanding practice” of congressional acquiescence.165 Hybrid trade deals are
largely a modern phenomenon and might not qualify as a “particularly longstanding practice.”166
Relatedly, due to the lack of transparency surrounding hybrid trade agreements, Congress might
not know about many of these agreements and thus might not be in a position to acquiesce to
them.167 As noted above, the disclosure requirements in the 2023 NDAA,168 which took effect in
September 2023, may give Congress greater visibility into—and ability to influence—these
agreements.169
Another potential response to the acquiescence argument is that Congress has not consistently
acquiesced to hybrid trade agreements. As discussed below, Congress enacted legislation
asserting that the President cannot enter into binding trade agreements without congressional
authorization while giving ex post approval to one trade agreement.170 Individual Members of
Congress have also publicly registered their criticism of these agreements.171 Further, by
periodically enacting TPA legislation—most recently in 2015—Congress arguably maintained a
high degree of control over FTAs and tariff proclamations, potentially implying that Congress did
not acquiesce to the conclusion of at least some kinds of trade agreements without its approval.172
160 See Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)).
161 Id. at 686.
162 See Medellín v. Texas, 552 U.S. 491, 528 (2008).
163 Zivotofsky v. Kerry, 576 U.S. 1, 23–28 (2015).
164 Koh, supra note 33, at 343.
165 Medellín, 552 U.S. at 531–32.
166 For background on the role of congressional acquiescence, see Curtis A. Bradley & Trevor W. Morrison, Historical
Gloss and the Separation of Powers, 126 HARV. L. REV. 411 (2012).
167 See Claussen & Meyer, supra note 79.
168 2023 NDAA, Pub. L. No. 117-263, § 5947, 136 Stat. 2395, 3476–82 (2022).
169 See International Law and Agreements, supra note 30.
170 See infra notes 243–245.
171 See, e.g., Senate Finance Letter, supra note 39; Wyden Letter, supra note 154; H.R. 4004, 118th Cong. (2023).
172 See Claussen & Meyer, supra note 79 (“The acquiescence argument carries even less weight in the context of farreaching plurilateral or multilateral trade agreements: there are no examples of agreements of that sort coming into
force without congressional consent.”).
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Even if these actions did not expressly prohibit hybrid trade agreements, they arguably amount to
implicit disapproval that could place some such trade agreements in the third Youngstown
category, where executive power is at its lowest ebb and alleged congressional acquiescence
might not support the practice in question.173 In any event, the strength of the argument in favor
of hybrid trade agreements from congressional acquiescence may not be static, but may wax or
wane based on how Congress responds to these agreements in the future and any relevant judicial
decisions.
Trade Agreement Practice Since 2020
This section summarizes legal characteristics of selected recent trade agreements and initiatives.
At least some of the agreements discussed below may be considered hybrid trade agreements
since the executive branch’s authority to enter into them was unclear or debatable, although
Congress did give ex post approval for one of these agreements (with Taiwan).174
Second Trump Administration Tariff Deals
In 2025, President Trump increased tariffs on most imports into the United States,175 claiming to
rely on authorities Congress has delegated to the President by statute.176 Administration officials
announced that the President could negotiate “deals” with U.S. trading partners that would lower
some of these tariffs on a country-specific basis.177 Two resulting such deals, negotiated with the
United Kingdom and the European Union, are analyzed below.178
United States-United Kingdom Deal
On May 8, 2025, the White House announced that the United States and the United Kingdom had
reached a “historic trade deal” (referred to in this report as the UK Deal) that would improve
access to the UK market for U.S. exports while providing tariff relief for certain U.S. imports
from the United Kingdom.179
The primary text for the UK Deal, titled “General Terms for the United States of America and the
United Kingdom of Great Britain and Northern Ireland Economic Prosperity Deal” (General
Terms), states that “[b]oth the United States and the United Kingdom recognize that this
173 See Medellín v. Texas, 552 U.S. 491, 528 (2008).
174 See infra “U.S.-Taiwan Initiative on 21st Century Trade.”
175 See CRS Report R48549, Presidential 2025 Tariff Actions: Timeline and Status, by Keigh E. Hammond and
William F. Burkhart (2025).
176 For analysis of the President’s legal authority to impose tariffs, see CRS Report R48435, Congressional and
Presidential Authority to Impose Import Tariffs, by Christopher T. Zirpoli (2025). For discussion of legal challenges to
certain tariffs imposed by President Trump, see CRS Legal Sidebar LSB11332, Court Decisions Regarding Tariffs
Imposed Under the International Emergency Economic Powers Act (IEEPA), by Christopher T. Zirpoli (2025).
177 See, e.g., Aislinn Murphy, Scott Bessent Says up to 70 Nations Want to Negotiate Over Trump’s Tariffs, FOX BUS.,
April 7, 2025, https://www.foxbusiness.com/economy/scott-bessent-says-up-70-nations-want-negotiate-over-trumpstariffs [https://perma.cc/U22F-JMEM].
178 This report adopts the term “deal” for these and other such arrangements because it is uncertain whether all of them
will ultimately entail binding agreements.
179 Fact Sheet: U.S.–UK Reach Historic Trade Deal, WHITE HOUSE (May 8, 2025), https://www.whitehouse.gov/factsheets/2025/05/fact-sheet-u-s-uk-reach-historic-trade-deal/ [https://perma.cc/6FQD-VKL4]. For background on policy
implications of this deal, see CRS In Focus IF11123, U.S.-UK Trade Relations: Background and Select Issues, by
Shayerah I. Akhtar (2025).
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document does not constitute a legally binding agreement.”180 Many additional provisions in the
General Terms refer to it simply as a “document,” while none refer to it as an agreement.181 The
General Terms purport to “define the general terms” of a future “U.S.-UK Economic Prosperity
Deal (EPD),” which is intended to “develop and formalize the proposals made in this
document.”182 Thus, while the UK Deal does not appear to be binding, the parties may intend to
negotiate and enter into a binding agreement regarding the topics identified in the nonbinding
document.
The UK Deal contains various tariff-related concessions by both parties. The text states that the
parties “will” make certain tariff concessions to one another, including mutual concessions on
beef tariffs and UK tariffs on U.S. ethanol.183 It also contains several commitments regarding
tariffs that have already been or may be imposed by the United States under Section 232 of the
Trade Expansion Act of 1962.184 Regarding Section 232 tariffs on automobiles and auto parts, the
General Terms provide that “[t]he United States will create a quota of 100,000 vehicles for UK
automotive imports at a 10 percent tariff rate, and an accompanying arrangement for attendant
auto parts for such autos.”185 As for Section 232 tariffs on steel and aluminum, the General Terms
provide that, on the basis of certain UK undertakings, “the United States will promptly construct
a quota at most favored nation (MFN) rates for UK steel and aluminum and certain derivative
steel and aluminum products.”186 The General Terms also indicate the parties’ intent to negotiate
preferential treatment for the United Kingdom regarding potential Section 232 tariffs on
pharmaceuticals and other products.187
On June 23, 2025, President Trump issued an executive order to implement the UK Deal by
making certain adjustments to tariffs he had previously imposed.188 The executive order does not
determine a quota for other UK steel and aluminum imports to be imported at MFN rates but
defers this determination to “a future time.”189 In addition, the executive order exempts certain
UK aerospace products from tariffs imposed under the International Emergency Economic
180 General Terms for the United States of America and the United Kingdom of Great Britain and Northern Ireland
Economic Prosperity Deal (May 8, 2025) [hereinafter General Terms],
https://ustr.gov/sites/default/files/files/Press/fs/US%20UK%20EPD_050825_FINAL%20rev%20v2.pdf
[https://perma.cc/WS47-2SRL] (last visited Sept. 23, 2025).
181 See, e.g., id. at 5 (“This document becomes operative on May 8, 2025.”). A USTR fact sheet on the UK Deal refers
variously to an “agreement in principle,” “agreement,” “framework,” and “deal.” USTR Fact Sheet: U.S.-UK Reach
Historic Trade Deal, OFF. OF THE U.S. TRADE REPRESENTATIVE (May 8, 2025), https://ustr.gov/about/policyoffices/press-office/fact-sheets/2025/may/ustr-fact-sheet-us-uk-reach-historic-trade-deal [https://perma.cc/LJ9KMBZN].
182 General Terms, supra note 180, at 1.
183 Id. at 2.
184 Pub. L. No. 87-794, § 232(b)–(c), 76 Stat. 872, 877 (codified as amended at 19 U.S.C. §§ 1862(b)–(c)). For
additional information, see CRS In Focus IF13006, Section 232 of the Trade Expansion Act of 1962, by Kyla H.
Kitamura (2025).
185 General Terms, supra note 180, at 2. For context, see CRS Insight IN12545, Section 232 Automotive Tariffs: Issues
for Congress, by Kyla H. Kitamura (2025).
186 General Terms, supra note 180, at 2. For context, see CRS Insight IN12519, Expanded Section 232 Tariffs on Steel
and Aluminum, by Kyla H. Kitamura and Keigh E. Hammond (2025).
187
See General Terms, supra note 180, at 2.
188 Exec. Order No. 14,309, 90 Fed. Reg. 26419 (June 16, 2025).
189 Id. at 26420–21.
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Powers Act (IEEPA)190 as well as Section 232 steel and aluminum tariffs.191 Although the General
Terms do not specifically mention aerospace products, they express an intention “to adopt a
structured, negotiated approach to other sectors that may be subject to Section 232 investigations
or other tariff measures with a view to a significantly preferential outcome.”192 A more recent
document published by the UK government, titled “Update on UK-US Economic Prosperity
Deal,” states that “[t]he US commits to reducing tariffs on imports of aerospace goods from the
UK from current levels back to MFN rates.”193
United States-European Union Deal
In July 2025, the White House announced that President Trump had reached a “massive trade
deal” with the European Union (referred to in this report as the EU Deal).194 According to the
European Union, this deal generally sets a 15% tariff “ceiling” on U.S. imports from the
European Union, inclusive of any “most favoured nation (MFN)” tariffs;195 actual or potential
Section 232 tariffs on automobiles, pharmaceuticals, and semiconductors; and “reciprocal” tariffs
imposed under IEEPA.196 The White House stated that this ceiling would not apply to Section 232
tariffs on steel, aluminum, and copper, which would “remain unchanged.”197 The European Union
described the EU Deal as a “political agreement” that “is not legally binding.”198
The United States and the European Union followed these announcements with a joint statement
of a “Framework on an Agreement on Reciprocal, Fair, and Balanced Trade” (the Joint
Statement).199 The Joint Statement provides that “[t]he United States and the European Union, in
line with their relevant internal procedures, will promptly document the Agreement on
Reciprocal, Fair, and Balanced Trade to implement this Framework Agreement.”200 Thus, the
190 Pub. L. No. 95-223, 91 Stat. 1626 (codified as amended at 50 U.S.C. §§ 1701–1710). For more information on the
use of IEEPA to impose tariffs, see CRS Legal Sidebar LSB11332, Court Decisions Regarding Tariffs Imposed Under
the International Emergency Economic Powers Act (IEEPA), by Christopher T. Zirpoli (2025) and CRS Legal Sidebar
LSB11281, Legal Authority for the President to Impose Tariffs Under the International Emergency Economic Powers
Act (IEEPA), by Christopher T. Zirpoli (2025).
191 See Exec. Order No. 14,309, 90 Fed. Reg. at 26420; see also Imports of Commercial Aircraft and Jet Engines
Notice, 90 Fed. Reg. 20273 (May 13, 2025) (announcing the initiation of a Section 232 investigation into certain
aerospace products on May 1, 2025).
192 General Terms, supra note 180, at 2–3.
193 Update on UK-US Economic Prosperity Deal, UK DEP’T FOR BUS. & TRADE (June 20, 2025),
https://www.gov.uk/government/publications/us-uk-economic-prosperity-deal-epd/update-on-the-uk-us-economicprosperity-deal-epd-web-accessible-version [https://perma.cc/3C2B-FAJF].
194 Fact Sheet: The United States and European Union Reach Massive Trade Deal, WHITE HOUSE (July 28, 2025)
[hereinafter EU Deal Fact Sheet], https://www.whitehouse.gov/fact-sheets/2025/07/fact-sheet-the-united-states-andeuropean-union-reach-massive-trade-deal/ [https://perma.cc/F7UU-2FQ6].
195 MFN tariff rates are also known as “bound” tariff rates, reflecting the commitment of WTO member countries not to
raise tariffs above those rates, with some exceptions. See CRS In Focus IF12995, International Trade Agreements and
U.S. Tariff Laws, by Christopher T. Zirpoli, Christopher A. Casey, and Cathleen D. Cimino-Isaacs (2025).
196 EU-US trade deal explained, EUROPEAN COMM’N (July 29, 2025) [hereinafter EU Deal Explained],
https://luxembourg.representation.ec.europa.eu/actualites-et-evenements/actualites/eu-us-trade-deal-explained-202507-29_en [https://perma.cc/Z748-A2P9].
197 EU Deal Fact Sheet, supra note 194.
198 EU Deal Explained, supra note 196.
199 Joint Statement on a United States-European Union Framework on an Agreement on Reciprocal, Fair, and
Balanced Trade, WHITE HOUSE (Aug. 21, 2025), https://www.whitehouse.gov/briefings-statements/2025/08/jointstatement-on-a-united-states-european-union-framework-on-an-agreement-on-reciprocal-fair-and-balanced-trade/
[https://perma.cc/F8ZG-2AYS].
200 Id.
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Joint Statement does not appear to be a binding agreement in itself but establishes a framework
for an agreement.
Building on the parties’ earlier announcements, the Joint Statement provides that the European
Union “intends to eliminate tariffs on all U.S. industrial goods and to provide preferential market
access for a wide range of U.S. seafood and agricultural goods.”201 For its part, the United States
“commits to apply the higher of either the U.S. Most Favored Nation (MFN) tariff rate or a tariff
rate of 15 percent, comprised of the MFN tariff and a reciprocal tariff, on originating goods of the
European Union.”202 The United States also commits, effective September 1, 2025, to apply only
the MFN tariff to “unavailable natural resources (including cork), all aircraft and aircraft parts,
generic pharmaceuticals and their ingredients and chemical precursors” from the European
Union.203 The Joint Statement also contains what appear to be nonbinding commitments relating
to energy, investments, military procurement, and cooperation to address nontariff barriers,
among other subjects.204
Regarding Section 232 tariffs, the Joint Statement provides that the United States “intends to
promptly ensure that the tariff rate” (i.e., the combined MFN tariff rate and Section 232 tariff
rate) will not exceed 15% on goods from the European Union that could potentially be subject to
tariffs under pending Section 232 actions on pharmaceuticals, semiconductors, and lumber.205 It
also provides that, “when the European Union formally introduces the necessary legislative
proposal to enact the tariff reductions” to which it has committed, the United States will adjust
Section 232 tariffs on automobiles and auto parts from the European Union so that they do not
apply to any imports subject to an MFN rate of 15% or higher or, for imports subject to a lower
MFN rate, the combined MFN and Section 232 rates does not exceed 15%.206 As for Section 232
tariffs on steel and aluminum, the Joint Statement provides that the parties “intend to consider the
possibility to cooperate on ring-fencing their respective domestic markets from overcapacity,
while ensuring secure supply chains between each other, including through tariff-rate quota
solutions.”207
Legal Authority for the UK Deal and the EU Deal
As indicated, the UK Deal and the EU Deal currently appear to be nonbinding. Thus, the
President may have authority to enter into these deals as part of his inherent constitutional
authority to conduct foreign negotiations, even if he would lack authority to enter into a binding
agreement regarding the same subject matter.208 The commitments in these deals may be roughly
analogous, for example, to the “voluntary import restraint undertakings” the U.S. Court of
Appeals for the D.C. Circuit upheld in Consumers Union v. Kissinger.209 Opponents might argue
201 Id.
202 Id.
203 Id.
204 See id.
205 Id.
206 See id.
207 Id. For discussion of pending Section 232 actions, see CRS Report R48549, Presidential 2025 Tariff Actions:
Timeline and Status, by Keigh E. Hammond and William F. Burkhart (2025).
208 See supra “Nonbinding Instruments.”
209 See 506 F.2d 136, 138, 143–44 (D.C. Cir. 1974). Potentially weakening this analogy, the undertakings in Consumers
Union were made with foreign producers’ associations, not with foreign governments. See id. at 138–39. In addition,
the court in that case did not squarely address the President’s Article II power to make nonbinding agreements, but held
that neither the Foreign Commerce Clause nor existing legislation had preempted the President’s ability to do so in that
case. See id. at 138, 143.
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that the President’s designation of these deals as “nonbinding” instruments or “frameworks” may
allow the President to circumvent Congress’s constitutional authority over foreign commerce and
tariffs210 given the specificity of some of the commitments in these deals, in light of the fact that
many trade agreements containing specific tariff commitments have traditionally been approved
by Congress.211
If the UK Deal or the EU Deal were succeeded by a binding agreement with similar
commitments, it is debatable whether the President would have authority to enter into that
agreement without specific congressional approval. Proponents of such an agreement might assert
that Congress has already authorized at least some of its provisions via existing legislation,
including Section 232. That statute specifies that, in addition to imposing tariffs, the President
may address a finding that an “article is being imported into the United States in such quantities
or under such circumstances as to threaten to impair the national security” by “negotiation of an
agreement which limits or restricts the importation into, or the exportation to, the United States of
the article.”212 Thus, to the extent that a trade agreement includes provisions on Section 232 tariffs
or quotas, proponents might argue that Congress provided ex ante authority for such provisions
when it enacted Section 232. Opponents, on the other hand, might argue that Section 232’s
allowance for the President to “negotiat[e]” agreements does not necessarily permit the President
to enter into such agreements without specific congressional approval.213
Proponents of the UK Deal or EU Deal might argue more broadly that, to the extent Congress has
delegated authority to the President to raise and lower tariffs, it has also given the President
authority to enter into international agreements concerning how he chooses to exercise that
authority.214 Opponents of this view might argue that, except where statutes expressly authorize
the President to enter into international agreements, the authority Congress has delegated to the
President to raise or lower tariffs under U.S. law does not imply any authority to enter into
international agreements regarding those tariffs.215
United States-Japan Critical Minerals Agreement
On March 28, 2023, the United States and Japan entered into an agreement on “Strengthening
Critical Minerals Supply Chains” (CMA).216 According to USTR, this agreement establishes
several commitments and “areas for joint cooperation” regarding critical minerals supply chains
for electric vehicle batteries.217 Many provisions of the agreement either confirm existing
210 Cf. id. at 150 (Leventhal, J., dissenting) (“To cast the steel restraints as unilateral undertakings rather than as
agreements is to exalt form over substance.”).
211 See supra “Free Trade Agreements (FTAs).”
212 19 U.S.C. § 1862(c)(3)(A)(i).
213 Compare id. with 19 U.S.C. § 1862(c)(3)(A)(ii) (referring to agreements being “entered into,” as opposed to
“negotiat[ed]” in (A)(i)). For comparison, another trade remedy statute, Section 301 of the Trade Act of 1974, Pub. L.
No. 93-618, 88 Stat. 1978, 2041–43 (codified as amended at 19 U.S.C. § 2411) authorizes USTR to “enter into binding
agreements with [a] foreign country” as well as impose tariffs. 19 U.S.C. § 2411(c)(1)(D).
214 See supra “Existing Laws and Regulatory Authorities.”
215 See id.
216 See Agreement Between the Government of the United States of America and the Government of Japan on
Strengthening Critical Minerals Supply Chains, Japan-U.S., Mar. 28, 2023, T.I.A.S. 23-328 [hereinafter U.S.-Japan
CMA]; CRS Report R48676, U.S.-Japan Critical Minerals Agreement: Background and Issues for Congress, by Kyla
H. Kitamura (2025).
217 Press Release, Off. of the U.S. Trade Representative, United States and Japan Sign Critical Minerals Agreement
(Mar. 28, 2023), https://ustr.gov/about-us/policy-offices/press-office/press-releases/2023/march/united-states-andjapan-sign-critical-minerals-agreement [https://perma.cc/5BTF-A8E7].
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obligations or require the parties to “confer” or “cooperate,” as opposed to making specific new
commitments.218
The CMA provides a useful point of comparison to the congressional-executive FTAs discussed
above.219 USTR characterizes the CMA as “an agreement focusing on free trade in critical
minerals,” in contrast to what it calls “comprehensive” FTAs in force with 20 other countries.220
Unlike those “comprehensive” FTAs, the CMA was not negotiated pursuant to TPA legislation, it
was not submitted to Congress for approval, and it does not create a free trade area or otherwise
reduce import tariffs between the partner countries.221
In May 2024, the U.S. Department of the Treasury (Treasury) finalized regulations222 under which
the CMA is deemed a “free trade agreement” under Section 30D of the Internal Revenue Code223
as amended by P.L. 117-169, commonly referred to as the Inflation Reduction Act of 2022
(IRA).224 The IRA conditioned certain tax credits for “clean vehicles” on whether a requisite
percentage of specific “critical minerals” in the vehicle battery were “extracted or processed”
either in the United States or in a “country with which the United States has a free trade
agreement in effect,” but it does not define the term “free trade agreement.”225 The May 2024
regulations list Japan among those “countries with which the United States currently has free
trade agreements in effect,”226 thus qualifying critical minerals extracted or processed in Japan
toward this percentage.
It is questionable whether the CMA should be considered an FTA within the meaning of the IRA,
given that, unlike all prior U.S. FTAs, it does not create a “free trade area” under GATT (i.e.,
eliminating tariffs on substantially all trade between the partner countries).227 Some Members of
Congress have argued that “the Administration does not have the authority to unilaterally enter
into free trade agreements.”228 During its rulemaking, Treasury received comments arguing that
its broader classification of FTAs “undercuts Congressional intent,” “impermissibly expand[s] the
Secretary’s authority to define ‘free trade agreement,’’’ and “departs from [the] accepted
meaning” of the term.229 Treasury argued, in response, that its broader definition of FTAs is
218 See U.S.-Japan CMA, supra note 216. The agreement contains a specific commitment that the parties “maintain”
their practice of not imposing export duties on critical minerals, although U.S. export duties are already prohibited by
the U.S. Constitution. See U.S. CONST. art. I, § 9, cl. 5; Cong. Rsch. Serv., Export Clause and Taxes, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artI-S9-C5-1/ALDE_00013596/ (last visited Sept. 23,
2025).
219 See supra “Free Trade Agreements (FTAs).”
220 See Free Trade Agreements, OFF. OF THE U.S. TRADE REPRESENTATIVE, https://ustr.gov/trade-agreements/free-tradeagreements (last visited Sept. 23, 2025).
221 Cf. id. (characterizing the CMA as “an agreement focusing on free trade in critical minerals,” as opposed to
“comprehensive free trade agreements” with other countries).
222 Clean Vehicle Credits Rule, 89 Fed. Reg. 37706 (May 6, 2024) (codified at 26 C.F.R. pts. 1, 301).
223 26 U.S.C. § 30D.
224 Inflation Reduction Act of 2022, Pub. L. No. 117-169, 136 Stat. 1818.
225 Id. § 13401; see CRS In Focus IF12600, Clean Vehicle Tax Credits, by Donald J. Marples and Nicholas E. Buffie
(2024).
226 Clean Vehicle Credits Rule, 89 Fed. Reg. at 37758 (codified at 26 C.F.R. § 1.30D-2(b)(13)).
227 See supra notes 67–70 and accompanying text.
228 Press Release, Richard Neal, Ranking Member, H. Ways & Means Comm., Neal, Wyden Statement on Biden
Administration’s Go-It-Alone Trade Action (Mar. 28, 2023), https://democrats-waysandmeans.house.gov/mediacenter/press-releases/neal-wyden-statement-biden-administration-go-it-alone-trade-action [https://perma.cc/Z2JRXAYX]. These Members further criticized the agreement for lacking “enforceable environmental or labor protections”
which could have been included with greater congressional engagement. Id.
229 Clean Vehicle Credits Rule, 89 Fed. Reg. at 37725.
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consistent with the IRA’s “statutory purposes,” including expanding incentives for taxpayers to
purchase clean vehicles and for manufacturers to increase their reliance on supply chains “in
countries with which the United States has reliable and trusted economic relationships.”230
Some Members of Congress responded to the CMA by introducing legislation that would have
amended Section 30D to define “free trade agreement” as “an international agreement approved
by Congress that eliminates duties and other restrictive regulations of commerce on substantially
all the trade between the United States and 1 or more other countries,”231 thus excluding the
CMA. Others introduced joint resolutions of disapproval232 of Treasury’s regulations under the
Congressional Review Act (CRA),233 which provides special procedures for Congress to consider
a joint resolution of disapproval to overturn final agency rules within a limited time.234
In July 2025, Congress enacted and the President signed into law the FY2025 reconciliation act,
commonly referred to as the One Big Beautiful Bill Act, which terminated the Section 30D tax
credits for vehicles ‘‘acquired after September 30, 2025.”235 Thus, whether the CMA is
characterized as an FTA will not determine eligibility for any tax credits pertaining to vehicles
acquired after that date.
U.S.-Taiwan Initiative on 21st Century Trade
In June 2022, USTR launched the U.S.-Taiwan Initiative on 21st Century Trade (the Taiwan
Initiative) to “advance mutual trade priorities based on shared values.”236 The parties described
the Taiwan Initiative as a “roadmap” for “reaching agreements with high-standard
commitments.”237 The Taiwan Initiative included a number of “trade areas,” such as trade
facilitation, good regulatory practices, agriculture, digital trade, labor, and environment.238 Other
Taiwan Initiative trade areas included anticorruption, small and medium-sized enterprises
(SMEs), standards, state-owned enterprises, and nonmarket policies and practices.239
On June 1, 2023, the United States and Taiwan signed their first agreement under the Taiwan
Initiative (the First Taiwan Agreement).240 The First Taiwan Agreement includes chapters on
230 Id.
231 H.R. 7983, 118th Cong. (2024).
232 See H.R.J. Res. 148, 118th Cong. (2024); H.R.J. Res. 179, 118th Cong. (2024); S.J. Res. 87, 118th Cong. (2024).
233 5 U.S.C. §§ 801–808.
234 See CRS In Focus IF12386, Defining Final Agency Action for APA and CRA Review, by Valerie C. Brannon (2023);
CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked Questions, by Maeve P. Carey and
Christopher M. Davis (2021).
235 Pub. L. No. 119-21, § 70502(a), 139 Stat. 250 (2025) (codified at 19 U.S.C. § 30D(h)).
236 Press Release, Off. of the U.S. Trade Representative, United States and Taiwan Announce the Launch of the U.S.Taiwan Initiative on 21st-Century Trade (June 1, 2022), https://ustr.gov/about-us/policy-offices/press-office/pressreleases/2022/june/united-states-and-taiwan-announce-launch-us-taiwan-initiative-21st-century-trade
[https://perma.cc/3CMG-3PXQ].
237 Id. Similarly, in Aug. 2022, the parties released a Negotiating Mandate “to commence formal negotiations for the
purpose of reaching agreements with high-standard commitments.” U.S.-Taiwan Initiative on 21st Century Trade:
Negotiating Mandate (Aug. 17, 2022) [hereinafter Negotiating Mandate], https://ustr.gov/sites/default/files/202208/US-Taiwan%20Negotiating%20Mandate%20(Final).pdf [https://perma.cc/3QZZ-BUTJ].
238 Negotiating Mandate, supra note 237.
239 Id.
240 Agreement Between the American Institute in Taiwan and the Taipei Economic and Cultural Representative Office
in the United States Regarding Trade Between the United States of America and Taiwan, Taiwan-U.S., June 1, 2023,
https://ustr.gov/sites/default/files/uploads/US(continued...)
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customs administration and trade facilitation, regulatory practices, services regulation,
anticorruption, and SMEs.241 Although it is a binding agreement, it contains a mixture of binding
and nonbinding commitments on these subjects.242
Although the executive branch did not submit the First Taiwan Agreement for congressional
approval, Congress responded by enacting the United States-Taiwan Initiative on 21st-Century
Trade First Agreement Implementation Act (the Taiwan Agreement Implementation Act).243 This
legislation provided ex post approval for the First Taiwan Agreement, effectively converting it
into a congressional-executive agreement. The Taiwan Agreement Implementation Act permits
the First Taiwan Agreement to enter into force subject to the President conducting certain
consultations with Congress and making certain certifications, and it requires USTR to provide
Congress with a report on the implementation of the agreement.244 The act states that “[t]he
President lacks the authority to enter into binding trade agreements absent approval from
Congress.”245
The Taiwan Agreement Implementation Act also asserts various forms of congressional control
over the process of making any further agreements with Taiwan relating to the Taiwan Initiative.
The act provides that any such further agreement may not take effect unless Congress enacts
legislation “expressly approving” the agreement and it is published on a publicly available
website at least 60 days before the President enters into it.246 The act also requires USTR to
provide texts of any such further agreement and accompanying briefings to certain congressional
committees according to specified timelines.247 The act provides time for those committees to
review any U.S. negotiating text before it is shared with Taiwan and allows certain Members of
Congress to request up to 15 additional days for that review.248 Finally, the act provides for certain
Members of Congress and their designees to be accredited as members of the U.S. delegation
negotiating any such further agreement with Taiwan.249
In signing the Taiwan Agreement Implementation Act into law, President Biden released a signing
statement claiming that the act’s requirements to provide negotiating texts to congressional
committees, not to transmit proposed texts to Taiwan during congressional review, and to include
Members of Congress in the U.S. negotiating delegation raised “constitutional concerns.”250 The
President stated that he would disregard these provisions in cases where they would
“impermissibly infringe upon [the President’s] constitutional authority to negotiate with a foreign
Taiwan%20Initiative%20on%2021st%20Century%20Trade%20First%20Agreement%20-%20June%202023.pdf
[https://perma.cc/UJ6V-ZNTS].
241 See id.
242 Compare, e.g., id. art. 2.2 (providing that each party “shall” publish certain information online) with id. art. 2.6.1,
para. 1 (providing that the parties “are encouraged” to eliminate paper forms).
243 United States-Taiwan Initiative on 21st-Century Trade First Agreement Implementation Act, Pub. L. No. 118-13,
137 Stat. 63 (2023).
244 Id. §§ 6(b)–(c).
245 Id. § 2(7).
246 Id. § 7(e).
247 See id. § 7(c).
248 See id.
249 See id. § 7(d) (referring to provisions of 19 U.S.C. § 4203(c)).
250 Press Release, White House, Statement from President Joe Biden on H.R. 4004, the United States-Taiwan Initiative
on 21st-Century Trade First Agreement Implementation Act (Aug. 7, 2023),
https://www.bidenwhitehouse.gov/briefing-room/statements-releases/2023/08/07/statement-from-president-joe-bidenon-h-r-4004-the-united-states-taiwan-initiative-on-21st-century-trade-first-agreement-implementation-act/
[https://perma.cc/B7J5-58HN].
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partner.”251 The President further stated that the act’s provision allowing certain Members of
Congress to increase the waiting period before negotiating texts could be shared with Taiwan
violated Supreme Court precedent regarding the separation of legislative and executive powers.252
The President did not, however, mention the act’s prohibition on entering into any further Taiwan
Initiative agreements without congressional approval.
The Taiwan Agreement Implementation Act provides that the First Taiwan Agreement “does not
constitute a free trade agreement for purposes of section 30D(e)(1)(A)(i)(II) of the Internal
Revenue Code.”253 The act thus prevented the Treasury Department from treating the agreement
similarly to the U.S.-Japan CMA for purposes of IRA electric vehicle tax credits, as discussed
above.254
Authority to Withdraw from Trade Agreements
Scholars debate whether authority to withdraw from existing trade agreements is legally distinct
from authority to enter into those agreements—in other words, whether the constitutional powers
of Congress and the President over withdrawal are symmetrical with their powers over entry. As
discussed below, presidential authority to withdraw unilaterally from trade agreements—and from
international agreements in general—is contested by legal scholars and others, and there is scarce
judicial precedent pertaining to the question.255 In the legislation implementing USMCA,
Congress approved and implemented a joint review (or sunset) provision with potential
ramifications for the President’s authority to withdraw from that particular agreement without
congressional approval.256
Legal Background and Debates
It is uncertain whether the President has domestic legal authority to withdraw from treaties or
congressional-executive agreements without congressional approval.257 While the Constitution
specifies the process to enter into a treaty, it does not address how the United States may
withdraw from treaties, nor does it mention entry or withdrawal from congressional-executive
agreements.258 As discussed in another CRS report, Presidents have sometimes, though not
always, obtained congressional or Senate approval to withdraw from treaties.259 Unilateral
withdrawal from treaties by the President became common in the 20th century,260 and the Supreme
251 Id.
252 Id. (citing INS v. Chadha, 462 U.S. 919 (1983) (holding that provision of immigration statute allowing one-house
veto of certain executive actions was unconstitutional)). On the other hand, some caselaw arguably provides support for
the conclusion that a statutory provision allowing certain Members of Congress to increase the length of a required
waiting period does not violate Chadha. See Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102, 1110
(9th Cir. 1988) (holding that a temporary stay provision that did not give a “legislative agent . . . control or ultimate
authority in the disposition of a particular issue” did not violate Chadha).
253 Pub. L. No. 118-13, § 8(a)(2), 137 Stat. 63, 67 (2023).
254 See supra “United States-Japan Critical Minerals Agreement.”
255 See infra “Constitutional Framework.”
256 See infra “USMCA Joint Review Provision.”
257 See CRS Report R48524, Congress and the Scope of the President’s Article II Foreign Policy Authorities, by Karen
Sokol (2025) at 14–18.
258
See U.S. CONST. art II, § 2.
259 See Sokol, supra note 257, at 16–17.
260 See id.
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Court has not answered whether such unilateral withdrawal is permitted by the Constitution.261 In
a case in which certain Members of Congress challenged President Jimmy Carter’s unilateral
withdrawal from a treaty with Taiwan, the Court ordered dismissal, with a four-justice plurality
holding that the case presented a nonjusticiable political question.262
As a matter of international law, the President likely has the power to withdraw the United States
from at least some international trade agreements without involving Congress. The Vienna
Convention on the Law of Treaties, which the U.S. government regards as reflecting customary
international law in many respects,263 provides that a country may withdraw from a treaty “in
conformity with the provisions of the treaty” regarding withdrawal, among other permissible
circumstances.264 Individual trade agreements sometimes contain such withdrawal provisions—
for example, USMCA’s provision that a country may withdraw by providing written notice six
months in advance.265 Neither customary international law nor these withdrawal provisions
appear to require any involvement on Congress’s part for the President to withdraw the United
States from an international agreement. The Vienna Convention provides that a country may
effectuate its withdrawal by submitting written notice “signed by the Head of State, Head of
Government or Minister for Foreign Affairs.”266
As a matter of U.S. domestic law, Congress’s constitutional powers to regulate foreign commerce
and impose tariffs arguably require congressional approval to withdraw from international
agreements on those subjects. Withdrawing from a trade agreement may affect the regulation of
foreign commerce to the same degree as entering into the agreement. Thus, one might argue that
if congressional authorization is required to enter into a binding trade agreement, so too may
congressional authorization be required to withdraw from one. One legal scholar, for instance, has
argued that “allocation of the power to terminate trade agreements to the President, acting alone,
would be inconsistent with the substance of the Constitution’s allocation to Congress of control
over both international and domestic commerce under the Commerce Clause of the
Constitution.”267
Another legal scholar has argued, more broadly, that “the Constitution requires a ‘mirror
principle,’ whereby the degree of legislative approval needed to exit an international agreement
must parallel the degree of legislative approval originally required to enter it.”268 According to
this argument, the degree of congressional approval required to withdraw from the agreement is
informed both by the agreement’s subject matter, which may indicate “which branch of
government has substantive constitutional prerogatives” implicated by withdrawal, and by the
degree of congressional participation in entering the agreement.269 This scholar argues that
Congress’s foreign commerce power may restrict or prohibit unilateral withdrawal from
261 See id. at 15.
262 See Goldwater v. Carter, 444 U.S. 996, 1002–05 (1979) (Rehnquist, J., concurring).
263 See Vienna Convention on the Law of Treaties, U.S. DEP’T OF STATE, https://2009-
2017.state.gov/s/l/treaty/faqs/70139.htm [https://perma.cc/8ERX-MTQF] (last visited Sept. 23, 2025).
264 Vienna Convention, supra note 31, art. 54. The Vienna Convention also provides that treaties may be terminated “at
any time by consent of all the parties after consultation with the other contracting States,” id., and that a party may
withdraw in some cases in which a treaty “contain[s] no provision regarding . . . withdrawal,” id. art. 56. Under
international law, executive agreements are also considered treaties. See supra note 31.
265 See USMCA, supra note 35, art. 34.6.
266 Vienna Convention, supra note 31, arts. 65, 67.
267 See Joel P. Trachtman, Power to Terminate U.S. Trade Agreements: The Presidential Dormant Commerce Clause
Versus an Historical Gloss Half Empty, 51 INT’L LAW. 445, 447 (2018).
268 Harold H. Koh, Presidential Power to Terminate International Agreements, 128 YALE L.J.F. 432, 432 (2018).
269 Id. at 462–63.
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international trade agreements.270 In addition, under the mirror principle, the high level of
congressional participation in making certain trade agreements—e.g., enacting TPA and
subsequent legislation to approve and implement FTAs—could weigh in favor of requiring a
commensurate degree of congressional participation to withdraw from such agreements.271
In 2018, the Department of Justice’s Office of Legal Counsel (OLC)272 published a memorandum
arguing that the President had legal authority to withdraw the United States from NAFTA
“without the need for any further legislative action.”273 OLC claimed that the President may
unilaterally withdraw from congressional-executive agreements where, as with NAFTA, “an
international agreement contains defined procedures for termination or withdrawal and Congress
approves the agreement without limiting those procedures.”274 In such cases, OLC argued, the
President is simply “implementing the laws that Congress has enacted and exercising his own
foreign-affairs powers” by unilaterally invoking such termination procedures.275 OLC cited the
historical practice of Presidents withdrawing from both treaties and executive agreements,
including some regarding foreign trade matters, without specific congressional authorization.276
OLC’s memorandum did not address whether unilateral withdrawal would be lawful in the event
that Congress enacted legislation expressly prohibiting it.277
OLC disputed the contention that Congress’s power over foreign commerce requires the President
to obtain congressional approval to withdraw from trade agreements.278 OLC agreed with a legal
scholar who has argued that Presidents have no less power to withdraw unilaterally from
congressional-executive agreements, including FTAs and other trade agreements, than Article II
treaties.279 This scholar observes that foreign commerce was historically regulated by Article II
treaties as well as executive agreements and that Presidents have sometimes terminated such
treaties unilaterally.280 In contrast to the mirror principle, this scholar maintains that Presidents
may unilaterally withdraw from trade agreements even though the President’s lack of independent
270 See id. at 462–63, 480.
271 See supra “Trade Promotion Authority: A Traditional Model.”
272 Historically, the executive branch has relied on OLC to provide legal opinions that bind executive agencies. See
Arthur H. Garrison, The Opinions by the Attorney General and the Office of Legal Counsel: How and Why They Are
Significant, 76 Alb. L. Rev. 217, 237 (2012) (“The foundation of the OLC’s authority to issue binding opinions on the
rest of the executive branch is based on the [statutory] authority of the Attorney General to issue such opinions, and
administrative traditions within the Department of Justice and the executive branch.” (citing 28 U.S.C. § 512)).
273 Authority to Withdraw from the North American Free Trade Agreement, 42 Op. O.L.C. 133 (2018) [hereinafter
OLC NAFTA Memo].
274 Id. at 137. The U.S. Court of Appeals for the D.C. Circuit in Goldwater v. Carter held, similarly, that the President
could unilaterally withdraw from the treaty with Taiwan, since it “contained an explicit provision for termination” and
“[t]he Senate, in the course of giving its consent, exhibited no purpose and took no action to reserve a role for itself . . .
in the effectuation of this provision.” 617 F. 2d 697, 699 (D.C. Cir. 1979), vacated, 444 U.S. 996 (1979).
275 OLC NAFTA Memo, supra note 273, at 145.
276 See id. at 139–50.
277 See id.
278 Id. at 147 (“Given the President’s powers in this area, there is no good reason to believe that the Constitution
preserves any greater role for Congress in the termination of a congressional-executive agreement on international trade
than on any other subject matter.”).
279 See id. at 146–47 (citing Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 DUKE L.J. 1615, 1634
(2018)).
280 Bradley, supra note 279, at 1630.
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Article II power over foreign commerce prevents the President from entering into such
agreements without congressional authorization (i.e., via sole executive agreements).281
Withdrawal Under the Youngstown Framework
The Youngstown framework282 provides one lens through which to assess OLC’s claims. OLC
appears to argue that presidential withdrawal from FTAs falls within Youngstown category 1
(express or implied congressional authorization), placing presidential power at its zenith.283 For a
category-one argument to succeed, legislation approving international trade agreements without
placing express limits on the President’s authority to invoke “defined procedures for termination
or withdrawal”284 must be construed as implicitly authorizing the President to withdraw
unilaterally.285 Some scholars question the soundness of this inference, in part because “[t]he
implementing statutes [for trade agreements] provide other explicit authorization to the President
to take specific actions, such as proclaiming tariffs consistent with the trade agreement,” but do
not expressly allow the President to withdraw from the FTA.286
If existing legislation is, instead, construed as neither approving nor prohibiting unilateral
withdrawal from trade agreements, presidential power to take such action would fall into
Youngstown category 2. In that category, the President may sometimes rely upon independent
Article II powers, “but there is a zone of twilight in which he and Congress may have concurrent
authority, or in which its distribution is uncertain.”287 One scholar has observed that, although the
President has certain independent powers to conduct foreign affairs, “under the Commerce
Clause, the lion’s share of the substantive regulatory authority is assigned to Congress.”288 Under
this line of reasoning, one might argue that both the President and Congress might need to
exercise these “co-dependent” powers to exit a trade agreement, precluding unilateral withdrawal
by the President.289
Congressional acquiescence may also inform the extent of presidential powers in Youngstown
category 2.290 OLC argues that, “[i]n view of . . . historical examples of presidential action,
combined with what has usually been congressional acquiescence, there can no longer be serious
281 See id. at 1632. This scholar rejects the symmetry of the mirror principle by analogizing to Article II treaties: “Just
as presidents lack unilateral authority to regulate commerce and other subjects through sole executive agreements, they
also lack the unilateral authority to conclude Article II treaties. And yet most commentators assume that they can
terminate such treaties.” Id. The scholar provides the following caveat: “This [argument] assumes . . . that presidents
can legally withdraw the United States from Article II treaties. Substantial arguments support that assumption, but the
Supreme Court has not dispositively resolved the issue. If that assumption falters, so too does the proposition that
presidents can withdraw the United States from congressional-executive agreements.” Id. at 1644.
282 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring).
283 See OLC NAFTA Memo, supra note 273, at 145 (“When the President invokes a termination provision in a
congressional-executive agreement, he is implementing the laws that Congress has enacted and exercising his own
foreign-affairs powers.”).
284 Id. at 137.
285 Cf. Trachtman, supra note 267, at 461 (“The implicit delegation argument is that the inclusion of a termination
provision in the treaty itself is evidence of an implicit intent to delegate termination power to the President.”).
286 Trachtman, supra note 267, at 460–61.
287 Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
288 See Trachtman, supra note 267, at 452.
289 See id.
290 See Medellín, 552 U.S. at 528 (“Under the Youngstown tripartite framework, congressional acquiescence is
pertinent when the President’s action falls within the second category.”).
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doubt that the President may terminate a treaty in accordance with its terms.”291 Some scholars
dispute that congressional acquiescence supports unilateral presidential withdrawal from trade
agreements and certain other treaties, arguing that this practice has not been sufficiently longstanding, consistent, or accepted to count as a historical “gloss” on the Constitution.292 One of
these scholars, for instance, surveyed the ways in which the United States terminated over 80
trade agreements, finding that fewer than 5 were “terminated without some basis in Congressional
action.”293
Congress may enact legislation prohibiting the President from withdrawing from certain trade
agreements without congressional approval, thereby placing presidential power in Youngstown
category 3, its “lowest ebb.”294 In that category, the President “can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the matter.”295 Thus,
even if the President has some inherent authority under Article II to withdraw unilaterally from a
trade agreement absent congressional restriction, Congress could exercise its substantive
authority over foreign commerce to prevent him from doing so, unless authority to withdraw from
such agreements belongs exclusively to the President. Commentary to the Restatement (Fourth)
of the Foreign Relations Law of the United States indicates that, while “structural and functional
considerations” generally support the President’s unilateral withdrawal authority, they do not
“suggest that Congress or the Senate lack the ability to limit suspension, termination, or
withdrawal.”296 Thus, one legal scholar argues, Congress could “enact[] a ‘no unilateral exit’
statute” to prevent the President from withdrawing from an agreement on foreign commerce or
other “zones” of congressional authority.297
Congress has arguably enacted such a “no unilateral exit” statute with respect to U.S.
participation in the WTO. Section 125 of the Uruguay Round Agreements Act establishes
expedited procedures for Congress to vote on a joint resolution to exit the WTO every five years,
and provides that “[t]he approval of the Congress . . . of the WTO Agreement shall cease to be
effective if, and only if, a joint resolution . . . is enacted into law . . . .”298 This provision arguably
prohibits the President from withdrawing from the WTO without congressional approval as a
matter of U.S. domestic law, although this interpretation is not free from doubt.299
291 OLC NAFTA Memo, supra note 273, at 144.
292 See Koh, supra note 268, at 448; Trachtman, supra note 267, at 454–55; see also Youngstown, 343 U.S. at 610–11
(Frankfurter, J., concurring) (“[A] systematic, unbroken, executive practice, long pursued to the knowledge of the
Congress and never before questioned . . . may be treated as a gloss on ‘executive Power’.”).
293 See Trachtman, supra note 267, at 459.
294 Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
295 Id.
296 RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 313, cmt. d (2024); see also id. at
Reporter’s Note 6 (“Although historical practice supports a unilateral presidential power to suspend, terminate, or
withdraw the United States from treaties, it does not establish that this is an exclusive presidential power.”). As noted, it
is unclear whether past congressional acquiescence may support assertions of presidential power in Youngstown
category 3. See notes 162 and 163 and accompanying text.
297 See Koh, supra note 268, at 449–50.
298 Pub. L. No. 103-465, § 125(b)(1), 108 Stat. 4809, 4833 (1994) (codified at 19 U.S.C. § 3535(b)(1)). For additional
information, see CRS In Focus IF12997, Congressional Review of U.S. Membership in the WTO, by Cathleen D.
Cimino-Isaacs, Christopher M. Davis, and Keigh E. Hammond (2025).
299 See Trachtman, supra note 267, at 463 (“While it does not necessarily mean that the President lacks independent
termination authority, the ‘if, and only if’ language suggests an intent that this be an exclusive method of U.S.
termination.”).
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USMCA Joint Review Provision
USMCA, the successor to NAFTA, contains a “joint review” provision requiring the parties to
consider whether to extend the term of the agreement starting in 2026.300 Stakeholders have
expressed differing views on what role Congress must play in this joint review process.
The joint review (or sunset) provision provides that USMCA terminates after 16 years (i.e., in
2036) unless each party confirms it wishes to remain in the agreement.301 The parties are to meet
on the sixth anniversary of USMCA’s entry into force (i.e., on July 1, 2026) for a joint review of
“any recommendations for action” submitted by the parties.302 During the joint review, each party
“shall confirm, in writing, through its head of government, if it wishes to extend the term” of
USMCA for another 16 years.303 If each party confirms it wishes to extend the term, the term is
“automatically” extended.304 Otherwise, the parties meet again annually for additional joint
reviews until either the agreement terminates or the parties decide to extend its term.305 If the
parties unanimously confirm their intention to extend the agreement, the process resets, and the
next joint review occurs six years thereafter.306 (In addition to the joint review provision, USMCA
contains a withdrawal provision stating that any country may withdraw from the agreement by
providing six months’ notice.307)
Although USMCA provides that the “head of government” of each party (e.g., the U.S. President)
communicates the party’s intention whether or not to extend the agreement, it does not specify
what role, if any, other parts of government must play in that decision, a question left to the
domestic law of each country. In the United States, the USMCA Implementation Act requires the
President and USTR to engage in certain consultations with Congress, including reporting in
advance of the joint review “the precise recommendation for action to be proposed at the review
and the position of the United States with respect to whether to extend the term of the USMCA,”
but it does not expressly require Congress to approve this decision.308
Some commentators regard the USMCA Implementation Act as leaving the “ultimate decision on
[USMCA extension] entirely in the hands of the executive branch.”309 On the other hand, in its
report on the USMCA Implementation Act, the Senate Finance Committee stated that the joint
review provision “does not change the constitutional structure of the United States with respect to
the conduct of trade policy” and that “the United States cannot withdraw from a congressionally
approved trade agreement without the consent of Congress.”310
300 USMCA, supra note 35, art. 34.7 (“Review and Term Extension”).
301 See id. ¶ 1.
302 Id. ¶ 2.
303 Id. ¶ 3.
304 Id.
305 See id. ¶ 4.
306 See id. ¶ 5.
307 Id. art. 34.6.
308 USMCA Implementation Act, Pub. L. No. 116-113, § 611, 134 Stat. 11, 79–80 (2020).
309 Simon Lester, USMCA Implementing Legislation Provisions on the Sunset Clause, INT’L ECON. L. & POL’Y BLOG
(Dec. 14, 2019), https://ielp.worldtradelaw.net/2019/12/usmca-implementing-legislation-provisions-on-the-sunsetclause.html [https://perma.cc/C9K3-UUWF]; see also DAVID A. GANTZ, BAKER INST., IMPORTANT NEW FEATURES IN
THE USMCA (2020), https://www.bakerinstitute.org/research/important-new-features-usmca [https://perma.cc/AK39RWLK] (“Congress has no veto over any actions that are taken by the president to withdraw (or remain).”).
310 S. REP. NO. 116-283, at 18 (2020).
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The argument that Congress implicitly authorized the President to make a unilateral decision may
be on firmer footing in the case of the USMCA joint review process than for withdrawal from
FTAs more generally. As noted, the USMCA Implementation Act specifies how the President and
USTR must engage with Congress in the joint review process, including certain consultation
requirements. Thus, if Congress intended to retain authority to approve or disapprove the
President’s decision whether to extend USMCA’s term, one might have expected Congress to
include express language to that effect.311 Based on such reasoning, the fact that the law instead
requires the executive branch only to consult with Congress might implicitly leave the ultimate
decision to the President. In addition, whereas other FTAs may continue indefinitely without their
withdrawal provisions being invoked, USMCA’s joint review provision requires the parties to
communicate their decisions regarding extension beginning in 2026. This fact may strengthen the
inference that Congress intentionally left those decisions to the President by omitting any
requirement for congressional approval.
If Congress wished to exercise greater control over USMCA’s joint review process, it could
consider enacting additional legislation requiring a greater level of congressional participation in
advance of the 2026 joint review or—if the parties do not agree to extend the agreement at that
time—subsequent joint reviews.
Considerations for Congress
Congress has broad powers that allow it to assert greater control over aspects of foreign trade
agreement-making should it choose to do so. These powers include its authority to pass laws
regulating foreign commerce and tariffs as well as its appropriations and oversight powers.312
Some of the specific tools that Congress has used in the past to control or influence trade
agreement-making include laws delineating under what conditions the executive branch may
enter into or withdraw from trade agreements and when they must be submitted to Congress for
approval, “report-and-wait” laws that require the executive branch to submit proposed trade
agreements to Congress before the agreement can take effect, additional transparency
requirements, and various oversight and accountability mechanisms.313 Congress could also
consider legislation prohibiting entry into or withdrawal from certain trade agreements without
congressional approval.
At least as a practical matter, the President may enjoy greater flexibility to make international
trade deals without congressional approval where existing legislation grants the President
authorities that can be used to bargain with or gain leverage over other countries. Recent trade
deals with the United Kingdom and European Union, for example, have focused largely on the
President’s use of Section 232 and IEEPA to impose new tariffs on U.S. imports.314 While
311 The interpretive principle, or “canon,” of expressio unius est exclusio alterius (the expression of one thing implies
the exclusion of others) may support this reading. Cf. CRS Report R45153, Statutory Interpretation: Theories, Tools,
and Trends, by Valerie C. Brannon (2023) at 51–52 (summarizing expressio unius canon). The Supreme Court has
cautioned that this canon “does not apply to every statutory listing or grouping; it has force only when the items
expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were
excluded by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (quoting
United States v. Vonn, 535 U. S. 55, 65 (2002)).
312 See CRS Report R45442, Congress’s Authority to Influence and Control Executive Branch Agencies, by Todd
Garvey and Sean M. Stiff (2023).
313 See International Law and Agreements, supra note 30.
314 See supra “Second Trump Administration Tariff Deals.”
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ongoing litigation has challenged the President’s legal authority to impose some of these tariffs,315
Congress also has the power to amend these statutory authorities and may consider the potential
effects of such amendments on the President’s ability to shape international trade deals.
The current lack of TPA authorization has arguably frustrated the pursuit of congressionalexecutive trade agreements, foreclosing a potential alternative to hybrid trade agreements and
nonbinding instruments. Since the expiration of TPA-2015 in 2021, some Members of Congress
have introduced legislation that would reauthorize some form of TPA. In the 119th Congress, one
bill would establish fast-track authority for congressional approval of agreements establishing
free trade in the critical minerals and rare earth sectors,316 while others would provide fast-track
authority for a possible FTA with the United Kingdom.317 Such legislation could channel trade
agreement-making through procedures over which Congress has greater control.
Another option is that Congress could consider targeted legislation, such as the Taiwan
Agreement Implementation Act, that gives or withholds approval for agreements that the
executive branch has already entered into or places conditions on future agreements. Congress
could also consider passing legislation clarifying USTR’s authority with respect to making
foreign trade agreements or withholding funding for the implementation of agreements that are
not submitted for approval to Congress.318
Courts have sometimes declined to decide cases presenting political questions about the
constitutional requirements for entering into and withdrawing from international agreements,319
making it possible that at least some of the legal and constitutional debates surveyed in this report
may unfold in the political sphere rather than being resolved by litigation. Nonetheless, Congress
may use its powers to help shape the political answers to any such political questions.
Author Information
Christopher T. Zirpoli
Legislative Attorney
315 CRS Legal Sidebar LSB11332, Court Decisions Regarding Tariffs Imposed Under the International Emergency
Economic Powers Act (IEEPA), by Christopher T. Zirpoli (2025).
316 S. 429, 119th Cong. (2025).
317 H.R. 1743, 119th Cong. (2025); S. 776, 119th Cong. (2025).
318 See, e.g., Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L. No. 100-204, § 139, 101 Stat.
1331, 1347 (1987).
319 See Made in the USA Found. v. United States, 242 F.3d 1300, 1302 (11th Cir. 2001).
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.