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

Congressional research reportNov 26, 2001

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Trade Agreement Implementation:

Expedited Procedures and Congressional

Control in Existing Law

November 26, 2001

Richard S. Beth

Specialist in the Legislative Process

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Trade Agreement Implementation: Expedited

Procedures and Congressional Control in Existing Law

Summary

Expedited procedures for trade agreements were established by Section 151 of

the Trade Act of 1974, and took their current form with the Omnibus Trade and

Competitiveness Act of 1988 (OTCA 1988). These statutory expedited procedures

act as procedural rules of each chamber governing consideration of bills to implement

certain trade agreements. They are designed to insure that (1) Congress will take up

the implementing bill and reach a final disposition within specified time limits, and (2)

the bill will not be subject to amendment.

These procedural restrictions are designed to assure the President, and other

countries involved in trade negotiations, that Congress will consider or implement a

covered trade agreement only as a package, in the form negotiated. Affording this

assurance requires limiting the usual discretion of Congress over the enactment and

contents of laws. In exchange for accepting these limits on its discretion, Congress

has (1) enacted restrictions on the circumstances in which they apply, and (2) retained

to itself, or provided itself with, means of enforcing these restrictions.

Under OTCA 1988, the President could implement certain trade agreements that

affected only tariffs without congressional action. An agreement including nontariff

provisions, however, qualified for expedited consideration only if (1) it was negotiated

during a specified time period, the most recent of which expired in 1994; (2) it

advanced trade objectives established by Congress in law; (3) the implementing bill

contained only provisions “necessary and proper” to implement the agreement; and

(4) in the course of negotiations, the President notified and consulted with Congress

in specified ways. Some of these consultations permitted the revenue committees to

draft the implementing bill the President then submitted.

Congress could enforce the time limitation through adoption by either House of

an “extension disapproval resolution” denying a presidential request to extend the

period. It could enforce the notification and consultation requirements by terminating

the availability of the expedited procedures, through adoption by each house of a

“procedural disapproval resolution” stating that the requisite consultations had not

occurred. Both kinds of resolutions were eligible for consideration under a second

set of expedited procedures, established by Section 152 of the Trade Act of 1974.

Congress could enforce the other limitations on the eligibility of trade

agreements for expedited consideration by using the constitutional authority of each

house to make its own rules. First, in principle, the chair might rule that an

implementing bill did not meet the statutory requirements for expedited consideration.

Second, each house has procedural means for either altering the procedures applicable

to any implementing bill, or considering an alternative measure instead. Finally, either

house could at any time permanently amend the statutory expedited procedures, just

as with any other procedural rules. These capacities afford Congress the ultimate

ability to recover its full legislative discretion over the implementation of any trade

agreement.

Contents

Expedited Procedures and Trade Promotion Authority . . . . . . . . . . . . . . . . . . . 1

Nature of Expedited Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Expedited Procedures for Trade Agreements . . . . . . . . . . . . . . . . . . . . . . . 1

Renewal and Development of Trade Promotion Authority . . . . . . . . . . . . . 2

Coverage of Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Expedited Procedures for Trade Agreements and the Role of Congress . . . . . . . 3

Negotiating and Legislating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Treaty Power and Revenue Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Features of the Expedited Procedures for Trade Agreements . . . . . . . . . . . . . . . 6

Prohibiting Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Committee Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

House-Senate Differences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Preventing Inaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Pre-Floor Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Taking up the Implementing Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Limits on Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Motions and Other Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Final Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Statutory Mechanisms to Enforce Limits on Trade Promotion Authority . . . . . 10

Time Limitations and the Extension Disapproval Resolution . . . . . . . . . . . 10

Requirements for Notification and Consultation . . . . . . . . . . . . . . . . . . . . 11

Procedural Disapproval Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Committee Disapproval for Free Trade Area Negotiations . . . . . . . . . . . . 14

Restrictions on Objectives and Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Using the Rulemaking Power to Enforce Limits on Trade Promotion Authority 15

Rulemaking Authority of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Forms of Control Through the Rulemaking Authority . . . . . . . . . . . . . . . 16

Determining Application of Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Altering Procedure for Individual Measures . . . . . . . . . . . . . . . . . . . . . . . 18

Considering Alternative Measures under General Rules . . . . . . . . . . . . . . 19

General Changes in Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Trade Agreement Implementation:

Expedited Procedures and Congressional

Control in Existing Law

Expedited Procedures

and Trade Promotion Authority

Nature of Expedited Procedures

Expedited procedures, also known more colloquially as “fast track” procedures,

are provisions of statute that operate as rules of each house to govern consideration

of a certain category of legislative measures. The pertinent statute normally also

identifies the category of measures to which it applies. Expedited procedures are

typically designed to assure that any measure falling into the specified category will

be able to reach the floor, so that Congress can actively decide whether to enact it,

within a limited period of time.

Often, the measures specified are joint resolutions to approve some action that

the statute empowers the President to take only if he receives that approval, or to

disapprove some action that the statute empowers him to take only if Congress does

not disapprove. The House Manual contains a compilation of statutory provisions

establishing expedited procedures relating to some 30 policy areas. Among others,

these include executive branch reorganization (for which the expedited procedure

mechanism seems to have originated), war powers, budgetary impoundments,

regulations proposed by agencies, nuclear waste storage, arms exports, energy

conservation, and military base closings.1

Expedited Procedures for Trade Agreements

In recent years, the term “fast track” has most often been used with particular

reference to expedited procedures for bills to implement certain international trade

agreements. These expedited procedures were first established by the Trade Act of

U.S. Congress, House of Representatives, Constitution, Jefferson’s Manual, and Rules of

the House of Representatives of the United States, One Hundred Seventh Congress, H.Doc.

106-320, 106th Congress, 2nd session, [compiled by] Charles W. Johnson, Parliamentarian

(Washington: GPO, 2001), Sections 1130(1)-1130(30). Hereafter cited as House Rules and

Manual.

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1974,2 then renewed by several subsequent laws, especially the Omnibus Trade and

Competitiveness Act of 1988 (“OTCA 1988").3 Under these statutes, if a trade

agreement proposes to do more than reduce tariffs in accordance with the President’s

reciprocal trade authority, it can enter into force only through enactment of a bill to

implement it. If the trade agreement and implementing bill meet a number of

additional conditions, the bill is eligible for consideration under the expedited

procedure.4

The 1974 Trade Act and its successors did not purport to restrict the President’s

general authority to negotiate trade agreements. They placed restrictions only on

what kinds of trade agreements could be implemented through the expedited

procedures that the 1974 Act established. The conditions that a trade agreement must

meet, in order to make its implementing bill eligible for expedited consideration,

delimit what has recently been called the President’s “trade promotion authority.”

Renewal and Development of Trade Promotion Authority

The expedited procedures of the 1974 Act were enacted as permanent law and

remain in effect today. This Act and its successors, however, always made the trade

promotion authority available to the President only for a limited period. The trade

promotion authority is “renewed” by enacting legislation making the expedited

procedure available for specified trade agreements negotiated during a new availability

period.

In enacting renewal legislation, Congress has usually also altered the other

conditions that must be met by (1) a trade agreement, (2) the process of negotiating

it, and (3) its implementing bill, if the bill is to be eligible for expedited consideration.

Most of these alterations have affected the conditions of the trade promotion

authority; Congress has left the expedited procedure itself largely unchanged.

Congress last renewed the President’s trade promotion authority in 1993, but

solely for an agreement establishing the World Trade Organization if entered into

before April 16, 1994.5 In the 104th and 105th Congresses (1995-1998), President

Clinton requested renewal of the general trade promotion authority, and legislation

for the purpose was reported, but not enacted. A key issue in these deliberations was

the extent to which agreements reached under the trade promotion authority should

P.L. 93-618 (88 Stat. 1978), as amended. The expedited procedures appear chiefly in

Sections 151-152 (19 U.S.C. 2191, 2192); in House Rules and Manual, Section 1130(11D).

P.L. 100-418 (102 Stat. 1107). (Hereafter cited as OTCA 1988.)

The agreements covered were generally those that contained provisions affecting nontariff

barriers to trade, including those establishing free trade areas. The conditions defining the

agreements covered are discussed in CRS Issue Brief IB10084, Trade Promotion Authority

(Fast-Track Authority for Trade Agreements): Background and Developments in the 107th

Congress, by Lenore Sek.

P.L. 103-49 (107 Stat. 239, 19 U.S.C. 2902(e)); CRS Issue Brief IB10084, Trade

Promotion Authority (Fast-Track Authority for Trade Agreements): Background and

Developments in the 107th Congress, by Lenore Sek.

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address labor and environmental issues.6 Efforts to renew the trade promotion

authority have now been continued in the 107th Congress.

Coverage of Report

The chief purpose of this report is to describe the expedited procedure for trade

agreements as it now stands in permanent law. As background to this description, the

report sketches the institutional interests and prerogatives that these provisions of law

have sought to balance. The report also shows how OTCA 1988 sought to achieve

this balance by countering the constraints that the expedited procedure placed on the

legislative prerogatives of Congress with restrictions on the scope of the trade

promotion authority, and by providing the means for Congress to enforce these

restrictions.7 Many of these features of OTCA 1988 have been reflected in current

proposals to renew the trade promotion authority.

Expedited Procedures for Trade Agreements

and the Role of Congress

The trade promotion authority and its expedited procedures embody a balance

among the prerogatives of the:

! President to conduct foreign policy and international negotiations;

! Congress to legislate;

! House of Representatives to initiate revenue legislation;

! Senate to oversee foreign relations; and

! House Committee on Ways and Means and Senate Committee on Finance to

develop revenue legislation.

Negotiating and Legislating

The Constitution generally empowers the President to conduct foreign policy,

and, in practice, only the executive can effectively speak for the United States in

negotiations.8 For these reasons, it is accepted that only the executive can negotiate

a trade agreement. Implementing a trade agreement, on the other hand, normally

CRS Issue Brief IB10084, Trade Promotion Authority (Fast-Track Authority for Trade

Agreements): Background and Developments in the 107th Congress, by Lenore Sek.

For details on the development of the procedures under OTCA 1988 and the conditions of

their use, see CRS Issue Brief IB10084, Trade Promotion Authority (Fast-Track Authority

for Trade Agreements): Background and Developments in the 107th Congress, by Lenore

Sek.

Article II, Section 3. In U.S. Congress, Senate, The Constitution of the United States of

America: Analysis and Interpretation, S.Doc. 103-6, 103rd Congress, 1st session, prepared

by the Congressional Research Service, Library of Congress, Johnny H. Killian [and] George

H. Costello, eds. (Washington: GPO, 1996), pp. 539-553. (Hereafter cited as Constitution

Annotated.)

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requires changes in existing law, which, under the Constitution, requires congressional

action.9

Congress therefore may prevent a trade agreement from being implemented by

rejecting the necessary legislation, or simply by declining to act. The congressional

power to legislate also entails the power to determine the contents of any legislation

enacted. In principle, Congress might enact legislation to implement a trade

agreement whose provisions, in effect, altered the negotiated terms of the agreement.

Making these alterations would be tantamount to not accepting the agreement, for it

would leave the parties still in disagreement over what the terms of the agreement are.

Supporters of trade promotion authority commonly argue that the possibility of

amending an implementing bill presents a potential obstacle to successful negotiations.

If an implementing bill could be amended, the argument runs, the President would be

unable to assure negotiating partners that the United States would carry out any

undertakings to which he might agree, or even reach a decision on whether to do so.

Without assurances of this kind, prospective partners could face a potentially endless

process of re-negotiation, into which they might be unwilling to enter.

Treaty Power and Revenue Power

For trade agreements dealing with tariffs alone, the Reciprocal Trade Act of

1934 and subsequent enactments provide a resolution to this dilemma. In these acts

Congress has delegated to the President, within limits, the power to implement

negotiated reductions in tariffs by proclamation – by his unilateral action.

Since at least the 1960s, however, trade agreements have ceased to deal solely

with tariff issues. Instead, they have increasingly addressed nontariff barriers to trade

and the establishment of free trade areas11. Congress has always chosen to retain

authority over implementation of these “nontariff” trade agreements.

Congress did not choose to preserve this authority by requiring that a covered

trade agreement be ratified in the form of a treaty. Under such an arrangement, the

trade agreement would take effect only if the Senate, by a two-thirds vote, gave

Constitution, Article I, Section 1. In Constitution Annotated, pp. 63, 73-90; see especially

pp. 76-78; see also pp. 496-497.

Reciprocal Trade Agreement Act of 1934 (P.L. 73-316, 48 Stat. 943) and its subsequent

renewals. See also CRS Issue Brief IB10084, Trade Promotion Authority (Fast-Track

Authority for Trade Agreements): Background and Developments in the 107th Congress, by

Lenore Sek.

CRS Issue Brief IB10084, Trade Promotion Authority (Fast-Track Authority for Trade

Agreements): Background and Developments in the 107th Congress, by Lenore Sek.

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“advice and consent” to its ratification.12 This arrangement, however, would have

raised several difficulties:13

! First, it would not avoid the problems mentioned earlier, for the Senate might

still either amend the treaty or decline to act on it.

! Second, even if the Senate advised and consented to the treaty, the nontariff

trade agreement generally would have to be implemented through legislation,

which would still require action by both houses of Congress.

! Third, even nontariff trade agreements typically include provisions requiring

changes in tariffs. Bills to implement these nontariff trade agreements would

therefore constitute revenue legislation, which, under the Constitution, must

originate in the House of Representatives.14 A treaty approach would entirely

circumvent this prerogative of the House.

For these reasons, the 1974 Trade Act and subsequent statutes have required

instead that each nontariff trade agreement be implemented through legislation

approved by both houses of Congress.15 After the President signs a trade agreement

covered by trade agreement negotiating authority, he must submit it to Congress

along with a draft implementing bill.16 This implementing bill is the legislation eligible

to be considered under the expedited procedures of the Act.

These expedited procedures are designed to forestall the possibility that

Congress will either (1) amend the implementing legislation or (2) decline to act on

it. The intent of these procedures is to ensure that a bill implementing a covered trade

agreement will be able to reach a timely “up-or-down” vote in the form submitted.

These procedures secure the President’s ability to negotiate for trade agreements of

the pertinent kinds with the assurance that Congress will either implement them in the

form negotiated or reject them. Under these arrangements, Congress loses the

alternatives of either altering an implementing bill or declining to act. It retains those

of determining whether or not to implement each agreement through legislation.

Constitution, Article II, Section 2, Clauses 2-3. In Constitution Annotated, pp. 469-504,

539-547.

These considerations are elaborated in CRS Report 97-896, Why Certain Trade Agreements

Are Approved as Congressional-Executive Agreements Rather Than as Treaties, by Jeanne

J. Grimmett; and CRS Report 94-890, GATT and Other Trade Agreements: Congressional

Action by Statute or by Treaty?, by Louis Fisher.

Constitution, Article I, Section 7, Clause 1. In Constitution Annotated, pp. 135-137.

And if this legislation contains revenue provisions, it must originate in the House.

Most recently stated in OTCA 1988, Section 1103(a)(1)(C) (19 U.S.C. 2903(a)(1)(C)).

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Features of the Expedited Procedures

for Trade Agreements

Provisions for preventing (1) amendment and (2) inaction are the two key

characteristics of an expedited procedure. Many provisions of the expedited

procedures established by Section 151 of the Trade Act of 197417 reflect features

commonly found in expedited procedure statutes. Also, where an expedited

procedure is silent, the general rules of the respective houses apply. Accordingly, at

points where the general rules foster the objective of expediting action, statutory

expedited procedures often rely on these general rules.

Prohibiting Amendment

The expedited procedures for trade agreements address the objective of

preventing Congress from altering a bill to implement a trade agreement by

establishing a single blanket prohibition on amendment (Section 151(d)). The

prohibition covers not only initial floor action in each house, but also any attempt by

either house to amend an implementing bill received from the other. Neither house

may suspend this prohibition, either by motion or unanimous consent.

Committee Amendments. The expedited procedures for trade agreements

include no explicit reference to committee amendments, but none is required. In both

houses, committees technically only recommend amendments to the floor. Although

Section 151 would not prevent a committee from recommending amendments, the

prohibition on floor amendment would prevent either house from considering or

adopting them. These procedures also do not prevent a committee from reporting an

original bill or clean bill, whose text might incorporate committee amendments to the

original measure. The original or clean bill, however, would not qualify for expedited

consideration. Only the implementing bill introduced pursuant to the President’s

submission of the trade agreement would be eligible for consideration by these

procedures.

House-Senate Differences. Because the implementing bills introduced in

each house must be identical and cannot be amended, the implementing bills initially

passed by each chamber must be identical. As a result, no occasion can arise for

resolving such differences, either through a House-Senate conference or through

motions to concur in the position of the other house. Otherwise, either of these

proceedings might become a means for introducing additional changes into the

legislation.

These provisions, now codified at 19 U.S.C. 2191, are hereafter often referred to as “Section

151.”

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Preventing Inaction

The expedited procedures for trade agreements attempt to prevent an

implementing bill from being blocked through inaction by assuring, at each essential

stage of the legislative process, that either the bill can move forward automatically,

or supporters can act to move it forward.

Pre-Floor Action. The expedited procedures direct that the implementing bill

be introduced in each house, by the two floor leaders (or their designees) jointly, on

the first day each house meets after the President submits the draft bill.18 The

presiding officer in each house is to refer the bill to the committee or committees of

jurisdiction. These committees will normally include the House Committee on Ways

and Means and the Senate Committee on Finance, which exercise primary jurisdiction

over “tariffs” and “reciprocal trade agreements.”19 This referral provision reflects

normal procedure in each chamber, except to the extent that the Senate normally

refers a measure solely to the committee whose jurisdiction predominates in the

subject matter of the bill.20

If any committee of referral does not report after 45 days of session in the

respective chamber, the committee is automatically discharged (Section 151(e)).21

This time limit eliminates the normal discretion of the committee not to act on a

measure referred to it.

If the implementing bill contains revenue provisions (called an “implementing

revenue bill”), any Senate committee is to report, or be discharged from, the House

bill rather than the Senate one. If the Senate receives the House bill more than 30

days after the bills are introduced, the original 45-day deadline is extended so that the

Senate committee is not discharged, and may report, until 15 days after it receives the

House bill. This device ensures that final action will take place on a measure

originating in the House, as the Constitution requires for revenue bills.

Taking up the Implementing Bill. In each house, measures normally come

to the floor through procedural actions that are controlled by the majority leadership.

The expedited procedures for an implementing bill do not make these actions

automatic, but instead protect the ability of supporters of the bill to accomplish

Trade Act of 1974, Section 151(c)(1) (19 U.S.C. 2191). The introduction is “by request,”

signifying that the sponsors have introduced the measure on behalf of another (in this case,

the President).

House Rule X, Clause 1(s), in House Rules and Manual , Section 741. Senate Rule XXV,

paragraph 1(i), in U.S. Congress, Senate, Senate Manual, Containing the Standing Rules,

Orders, Laws, and Resolutions Affecting the Business of the United States Senate [106th

Congress], S.Doc. 106-1, 106th Congress, 1st session, prepared by Lori Breneman

(Washington: GPO, 2000), Section 25.1i. (Hereafter referred to as Senate Rules Manual.)

Senate Rule XVII, paragraph 1, in Senate Rules Manual, Section 17.1.

“Days of session” here means calendar days on which the respective chamber is in session.

Trade Act of 1974, Section 151(e)(3) (19 U.S.C. 2191).

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them.22 The leadership exercises a smaller degree of control over scheduling these

bills than usual.

In the House, the expedited procedures afford this protection by making the

motion to consider the bill “highly privileged” and nondebatable.23 Such a motion

would otherwise be debatable for one hour (or more, if the House defeated a motion

for the previous question). In the Senate, the procedure makes the motion to consider

“privileged and nondebatable,” which prevents opponents from blocking the measure

by dilatory debate on whether to take it up.24

Limits on Consideration. The trade fast track procedure requires each

house to complete floor action within 15 days of session after committees report or

are discharged. The statute, however, creates no mechanism for the direct

enforcement of this time limit, such as a point of order against actions that would

delay a final vote past the time specified. Nor do the general rules of either house

appear to make available any such mechanism. Senate procedure affords no motion

or other means by which consideration could be concluded and an immediate vote

taken. House procedure provides means to conclude consideration and proceed to

a vote, but only with the voting support of a majority; as a result, an attempt to

conclude consideration could be defeated.

Once an implementing bill is under consideration, however, the expedited

procedure secures the possibility of reaching a final vote by limiting debate to 20

hours. Either house may vote to reduce this time further. These statutory

mechanisms limiting debate would probably suffice to bring about action in

conformity with the overall time limit.

Under Section 151, the time available for debate is equally divided and

controlled, in the Senate between the two party floor leaders, and in the House

between supporters and opponents. Normally, debate time in the House is controlled

by the chair and ranking minority member of the reporting committee. To meet the

requirements of this fast track procedure, if both committee leaders took the same

position on an implementing bill, the ranking minority member might be replaced by

some other minority member of the committee who held a contrary view.

Motions and Other Actions. Other provisions on floor consideration

included in the expedited procedures for trade agreements, similar to ones in many

other expedited procedure statutes, restrict possible dilatory tactics that could block

the measure. Some of these automatically exclude certain actions otherwise in order.

Specifically:

Procedures to govern floor action on the measure are contained in Sections 151(f) (House

and 151(g) (Senate) (19 U.S.C. 2191).

See “Privilege” in Walter Kravitz, Congressional Quarterly’s American Congressional

Dictionary, 3rd ed. (Washington: CQ Press, 2001), pp. 188-189.

Some expedited procedures specify that the motion to consider remains privileged even after

having previously been disagreed to. This further protection of the means to secure

consideration is not explicit in the trade fast track.

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! the motion to consider may not be amended;

! the vote on neither the motion nor (in the House) the bill may be reconsidered;

and

! no motion to recommit the bill is in order.

Other provisions against dilatory tactics limit or preclude debate on actions that

remain permissible. Specifically, in:

! both houses, a motion to limit debate to less than 20 hours is nondebatable;

! the House, appeals, and motions to postpone consideration of the bill or

proceed to other business, are nondebatable; and

! the Senate, debate on an appeal or other debatable motion is limited to one

hour.25

Final Action. A bill passed by either chamber is routinely transmitted to the

other for its action. The statute directs that after either chamber so receives an

implementing bill, the final vote in that chamber shall be on the measure from the

other. This requirement ensures that both chambers can pass the same one of the two

identical measures, so that one can be presented to the President.26

The function of preventing inaction is also shared by the prohibition on

amendment. If it were possible for the House and Senate versions of an implementing

bill to differ, it would be most difficult to ensure that Congress, by conference

committee or otherwise, could reach agreement on a final version acceptable to both

houses. Neither mandatory time limits nor any other mechanism can force negotiators

to come into agreement.27

Unlike some expedited procedures, that for trade agreements contains no special

provisions for overriding a veto. The President would not likely veto a measure

whose exact terms he had submitted to Congress. Also, the Constitution specifies

that the house receiving a veto message must take it up, though by precedent, it may

refer the message to committee or lay it aside rather than vote directly on whether to

override.28

Some expedited procedures provide that if Congress adjourns sine die before

statutory time limits expire, the time periods provided begin anew upon the

This time is divided between the Senator raising the appeal and the bill manager (or minority

leader), and is in addition to the 20 hours for the measure itself.

For legislation not being considered under expedited procedures, this result is normally

reached through routine procedures in whichever house acts second on the measure.

The two chambers must pass a measure in identical form before it can be presented to the

President for approval; neither can override the other in this process. Constitution, Article I,

Section 7, Clauses 2-3. In Constitution Annotated, pp.132-139.

Constitution, Article I, Section 7, Clause 2, in Constitution Annotated, pp. 137-141; House

Rules and Manual, Section 108; and U.S. Congress, Senate, Riddick’s Senate Procedure:

Precedents and Practices, S.Doc. 101-28, 101st Congress, 2nd session, by Floyd M. Riddick

and Alan S. Frumin (Washington: GPO, 1992), pp. 1382-1385.

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reconvening of Congress or resubmission of the proposal. The expedited procedures

for trade agreements lack a provision of this kind.

Statutory Mechanisms to Enforce Limits

on Trade Promotion Authority

The power to accept or reject a proposition negotiated and submitted by the

President is far from a full power to legislate on a subject. Yet the limitations

imposed by the expedited procedures for trade agreements do not ultimately constrain

the powers of Congress in this area. Instead, Congress has protected its ability to

exercise its legislative authority in this area by (1) restricting the class of trade

agreements eligible for approval under the expedited procedure, and (2) providing

itself with procedural means of enforcing these restrictions. Additionally, Congress

may always ultimately retrieve its plenary authority to legislate in this area by invoking

the constitutional authority of each house to change its own rules.

By placing limits on the scope of the President’s trade promotion authority, and

giving itself means of enforcing these limits, Congress attempted to ensure that it

would not have to consider any trade agreement under the constraints of the

expedited procedure, except when that agreement addressed subjects on which it was

willing to accept these constraints. In OTCA 1988, the chief ways in which Congress

has restricted the class of trade agreements eligible for expedited approval were three:

! Time limitations: limitations on the time period during which the President

can exercise the trade promotion authority;

! Informational requirements: an array of notifications to and consultations

with Congress that must occur in the course of negotiating an eligible trade

agreement; and

! Substantive restrictions: restrictions on the objectives that an eligible trade

agreement may seek to promote, and the kinds of provisions an eligible

implementing bill may contain.

The following sections describe the way OTCA 1988 provided for each of these kinds

of limitation and the procedural means made available by the Act for Congress to

ensure the effectiveness of each.

Time Limitations and the Extension Disapproval Resolution

Although each renewal of the trade promotion authority has been for a fixed

period, some renewals, including that of OTCA 1988, also permitted the authority to

be extended for one specified additional period. This extension would occur if the

President so requested, unless either house adopted a simple resolution disapproving

the request. This mechanism was designed to enable Congress to decide whether

continuation of the President’s trade agreement negotiating authority would be

warranted by the state of negotiations then in progress. OTCA 1988 required that the

text of this “extension disapproval resolution” include language specifying that the

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disapproving house was acting “because sufficient tangible progress has not been

made on trade negotiations.”29 The resolution had to be approved 15 days before the

beginning of the extension period.30

An extension disapproval resolution was to be considered under an expedited

procedure contained in Section 152 of the Trade Act of 1974, which is separate from

the procedure for an implementing bill, though similar in operation. Differences are

that (1) this separate procedure lacks the language forbidding suspension of the

prohibition against amendments, and (2) in the Senate, the hour provided for debate

on a debatable motion or appeal is included in, rather than additional to, the overall

20 hours for debate on the measure.31

In each chamber, an extension disapproval resolution was to be reported from

the respective revenue committee (and, in the House, from the Committee on Rules

as well). It could be considered on the floor only if reported from these committees;

provisions of Section 152 permitting a motion to discharge committees were not

applicable to an extension disapproval resolution. Once the resolution was reported,

a motion to consider it would normally be offered, in the Senate, by the majority

leader, and in the House, by direction of the reporting committee. Members of the

reporting committee would typically have charge of the consideration of the

resolution.

Requirements for Notification and Consultation

Informational requirements under OTCA 1988 direct the President either to

notify or to consult with Congress during the negotiation of a trade agreement. The

Act established both kinds of informational requirement, in general, as conditions of

the negotiating authority. The agreements that the President could submit for fast

track implementation were in part defined as those for which the specified

notifications and consultations had occurred.

Congress conditioned its grant of trade promotion authority on the fulfillment

of various requirements for notification, so as to enable itself to monitor the likely

outcomes of trade agreement negotiations. These notification requirements helped

ensure that when Congress had to decide, under the restrictions of an expedited

procedure, whether to implement a non-tariff trade agreement, it could do so on the

basis of substantial information obtained throughout the negotiation process.

Requirements for consultations, by contrast, were intended to permit Congress to

OTCA 1988, Section 1103(b)(5)(A) (19 U.S.C. 2903).

OTCA 1988, Section 1103(b) (19 U.S.C. 2903). The initial authority was effective through

May 1991, the extended authority through May 1993. The mechanism permitting action by

one house again was apparently considered permissible under I.N.S. v. Chadha because its

effect was only to specify the application of the internal congressional rules of the fast track

procedure. See note 44.

OTCA 1988, Section 1103(b)(5)(C) (19 U.S.C. 2903); and Trade Act of 1974, Section

152(d)-152(e) (19 U.S.C. 2192).

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influence the outcome of negotiations, by keeping the executive apprised of the likely

congressional response.

Both kinds of informational requirements were structured in such a way that

Congress could carry them out through the agency of its revenue committees, which

exercise primary jurisdiction over key subjects addressed by trade agreements. These

arrangements recognize and reinforce the prerogatives of the House Committee on

Ways and Means and the Senate Committee on Finance.

Unlike its predecessors, OTCA 1988 established two different categories of

nontariff trade agreements, and imposed different informational requirements for each.

For trade agreements addressing solely nontariff barriers to trade, conditions similar

to those previously in effect were retained, but for negotiations on free trade areas,

Congress also imposed some additional informational requirements.

OTCA 1988 required some consultations to take place in advance of any trade

negotiations, not only of those pursued under the trade agreement negotiating

authority. First, the U.S. Trade Representative was to consult on overall trade policy,

on a continuing basis, with the two revenue committees.32 Second, the President was

to accredit three majority and two minority members of each revenue committee as

“advisers” to the U.S. delegation to each trade negotiation (and could also appoint

additional advisers from other pertinent committees). These advisers were to receive

briefings on the talks and provide advice pertinent to congressional approval of the

agreement being negotiated.33

For nontariff trade agreements specifically, OTCA 1988 required additional

notifications and consultations to take place during negotiations. First, the President

could not sign any such agreement unless he had notified Congress of his intention to

do so at least 90 calendar days previously. Between this notification and the signing,

the President was to consult, with the revenue committees and others whose

jurisdictions would be affected, on:

! “the nature of the agreement”;

! how it achieved any established objectives; and

! the process by which it would be implemented.34

These consultations consisted, in practice, of “mock markups” (and sometimes also

“mock conference committees”), through which the committees, in effect, drafted the

terms of the implementing bill that the President would then submit.35

OTCA 1988, Section 1632(c) (19 U.S.C. 2211).

OTCA 1988, Sections 1632(a) and 1632(b) (19 U.S.C. 2211).

OTCA 1988, Section 1102(d) (19 U.S.C. 2902).

See, for example, U.S. Congress, House of Representatives, Committee on Ways and

Means, Trade Agreements Authority Act of 1995, report to accompany H.R. 2371, 104th

Congress, 1st session, H.Rept. 104-285 (Washington: GPO, 1995), pp. 16, 19; and “U.S.Canada Free-Trade Agreement Finalized,” in Congressional Quarterly Almanac 1988

(continued...)

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Second, for free trade area negotiations, the President was to give further notice

of the negotiations to the two revenue committees, at least 60 days of session before

the 90-day notice, and then to consult with the committees on those negotiations.36

These requirements did not apply to negotiations for other nontariff trade agreements.

The presence of these additional informational requirements suggests that Congress

desired to maintain an enhanced level of scrutiny and control over trade agreements

for free trade area negotiations.

Third, OTCA 1988 applied further notification requirements at the point when

the President would sign any nontariff trade agreement. At that point, the President

was to submit specified supporting documentation to Congress, including:

! the text of the agreement;

! a statement of the administrative action to be taken to carry it out;

! a draft implementing bill; and

! a statement of how the agreement advanced statutory negotiating objectives.

Especially the last of these requirements (like that listed second in connection with the

more general 90-day notification) would help enable Congress to judge how well its

purposes in according the trade agreement negotiating authority were being served.

Procedural Disapproval Resolutions

Rulemaking provisions of OTCA 1988 also embodied a process by which

Congress could in effect rescind the trade agreement negotiating authority at any time

during a period for which it might be authorized. If each chamber separately adopted

a “procedural disapproval resolution” within any period of 60 days of session,37 the

trade fast track procedures would cease to apply to any subsequent bill implementing

a nontariff trade agreement. This mechanism was evidently designed specifically to

offer Congress a means to enforce the satisfactory occurrence of the consultations

required by statute. The text of a procedural disapproval resolution must include a

statement that “the President has failed or refused to consult with Congress on trade

negotiations and trade agreements in accordance with” the statute.38

(...continued)

(Washington: Congressional Quarterly, 1989), pp. 222-223, 226-227.

OTCA 1988, Section 1102(c)(3)(C) (19 U.S.C. 2902). “Days of congressional session”

here includes all days except those on which at least one house is not in session on Saturday,

Sunday, or during an adjournment of more than three days. OTCA 1988, Section 1103(e) (19

U.S.C. 2903) and Section 1102(c)(4) (19 U.S.C. 2902). Normally, under these provisions,

the “clock” will “run” at the rate of five days per week, except during recesses of Congress,

when it will be stopped.

Calculated, here again, to exclude days on which at least one house was not in session on

a Saturday or Sunday, or during a recess or adjournment of more than three days. OTCA

1988, Section 1103(e) (19 U.S.C. 2903).

OTCA 1988, Sections 1103(c)(1)(a) and 1103(c)(1)(E) (19 U.S.C. 2903).

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A procedural disapproval resolution was to be a simple resolution reported from

the revenue committee in the respective chamber and, in the House, from the

Committee on Rules as well. In the House, the resolution first had to be submitted

by the chairman or ranking minority member of one of these two committees. In the

Senate, the Committee on Finance was to report it as an original measure.39 The

resolution was to be considered under the expedited procedure of Section 152, the

same as for an extension disapproval resolution.40

By requiring action in both houses, this mechanism precluded situations in which

one chamber would continue to operate under the fast track procedure while the other

declined to do so. At the same time, by requiring each chamber to act separately, the

process respected the principle that the force of a rulemaking statute rests on the

authority of each chamber separately.

Committee Disapproval for Free Trade Area Negotiations

For proposals specifically establishing a free trade area, OTCA 1988 also

afforded Congress an additional means for revoking the fast track authority. Whereas

a procedural disapproval resolution would terminate the trade promotion authority

altogether, this mechanism applied only against a specific negotiation. It worked in

conjunction with the special additional notification to the revenue committees,

described earlier, that was required for negotiations on a free trade area. Within 60

days of session after this special notification, the House Committee on Ways and

Means and the Senate Committee on Finance were each authorized to disapprove the

negotiation of the free trade area agreement. If either panel did so, the implementing

bill could not be considered under fast track procedures. This mechanism thus placed

full discretion for this form of disapproval with each revenue committee, acting alone.

Restrictions on Objectives and Contents

The substantive requirements laid down by OTCA 1988 for trade agreements

included ones that directly restricted the contents of either (1) the trade agreements

eligible for expedited implementation, or (2) the implementing legislation itself. Some

restrictions on the contents of an implementing bill were enacted as provisions of the

trade fast track procedure itself, in Section 151 of the Trade Act of 1974.

Restrictions on the contents of a trade agreement itself, by contrast, were generally

enacted as conditions on the President’s trade promotion authority.

Substantive restrictions on the trade promotion authority operate in advance of

negotiations, to regulate the kind of nontariff trade agreement that might be

negotiated under that authority. Substantive restrictions on implementing legislation,

on the other hand, come into effect after negotiations are concluded. They

presumably affect negotiations retrospectively, by encouraging the President to

proceed from the outset in a way that will permit the agreement to qualify for

expedited implementation. In these different ways, nevertheless, both kinds of

OTCA 1988, Sections 1103(c)(1)(B) and 1103(c)(1)(D) (19 U.S.C. 2903).

OTCA 1988, Section 1103(c)(1)(C) (19 U.S.C. 2903).

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restriction allowed Congress to exercise influence over the substance of trade

agreements before negotiations were concluded.

The chief means by which OTCA 1988 restricted the substance of the trade

agreement negotiating authority was by establishing statements of the objectives that

a nontariff trade agreement could pursue. Some of these related to the structure of

trade generally, agriculture, services, intellectual property, and high technology, as

well as the protection of worker rights.41

In addition, Section 151(b) of the Trade Act restricts any implementing bill by

requiring it to include only (1) provisions approving a covered trade agreement and

the President’s statement of administrative action proposed to implement it, together

with (2) any amendments to existing law that are “necessary or appropriate” to

implement the agreement. Finally, Section 151(c) also requires the implementing bill

to be introduced in the manner described in the section on the expedited procedure

for trade.

OTCA 1988 provided no separate statutory mechanisms for enforcing these

substantive requirements. Instead, they might be enforced through the use by each

house of its constitutional power to determine its own rules. These means of

enforcement are discussed in the following section.

Using the Rulemaking Power

to Enforce Limits on Trade Promotion Authority

Rulemaking Authority of Congress

Even though Congress limited the scope of the trade promotion authority by

imposing these substantive restrictions and informational requirements, it might still

conclude that the terms of a specific nontariff trade agreement did not appropriately

reflect its intent. The statutory expedited procedure might require Congress to

consider the implementing bill under constraints on its discretion that it would find

inappropriate for that specific situation. Congress, however, possesses several means

of avoiding a dilemma of this kind. By these means it would be able to override the

statutory expedited procedure and recover its normal legislative prerogatives for

consideration of legislation implementing trade agreements.

The key to all of these mechanisms is that, although the expedited procedure for

trade is prescribed in statute, its provisions operate as procedural rules of the House

or Senate. Under the Constitution, each house possesses full authority to determine

its own internal rules,42 including the power to alter or supersede these rules by its

own action. This constitutional rulemaking authority permits each house to adopt and

amend its rules by a simple resolution (a measure acted on only by the house to which

it applies).

OTCA 1988, Section 1101 (19 U.S.C. 2901).

Article I, Section 5, Clause 2. In Constitution Annotated, pp.123-125.

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Expedited procedures, however, including the one for trade agreements, are

enacted in law, which, under the Constitution, requires the joint action of both houses

and the President. As a practical matter, expedited procedures may often need to be

established in this way, because they affect the prerogatives of all three institutions,

and each may be willing to accept the effects only as part of an overall

accommodation among all. Nevertheless, expedited procedures regulate proceedings

in each house (on the measures they apply to) in just the same way as do the general

rules of each. To enact these procedures in statute therefore seems to give authority

over rules of each house to the President and the other house, neither of whom has

any constitutional claim to this authority.

To resolve this difficulty, when a law contains provisions that operate as

congressional rules, it typically also includes a declaration that these provisions are

enacted “as an exercise of the rulemaking power” of each house. The declaration

asserts that, for this reason, each house retains the constitutional right to change those

rules “(so far as relating to the procedure of that House) at any time, in the same

manner and to the same extent as in the case of any other rule of that House.”43

These declarations affirm the authority of each house to treat rulemaking provisions

in the same way as other rules, and alter them by its own sole action, even though

they were established by statute.44 Provisions enacted under declarations like these

are sometimes called “rulemaking provisions” of statute.

Forms of Control Through the Rulemaking Authority

Congress possesses several ways of invoking its general rulemaking authority to

change, suspend, or determine the applicability of the rulemaking provisions of statute

that make up the expedited procedure for trade agreements. One has already been

discussed: the establishment of additional expedited procedures, as in Section 152

of the Trade Act of 1974, which governs the consideration of extension disapproval

resolutions and procedural disapproval resolutions. These mechanisms permitted

Congress to adjust the availability of the trade agreement negotiating authority to

reflect its judgment of how the authority was being used.

Specific language quoted is that of Section 151(a) of the Trade Act of 1974 (19 U.S.C.

2191), covering Sections 151-153 of that Act (19 U.S.C. 2191-2193). Similar language in

Section 1103(d) of OTCA 1988 covers Sections 1103(b)-1103(c) of that act (19 U.S.C.

2903). Note that these declarations do not cover the provisions setting conditions for the use

of these procedures, which require actions by the executive and not only by Congress.

These declarations assert the ability of either chamber of Congress, acting alone, to overturn

certain provisions of statute. In I.N.S. v. Chadha, 462 U.S. 919 (1983), the Supreme Court

held that authority granted pursuant to statute could be rescinded or overridden only by a

further statutory enactment, and that Congress could not provide for results like those to arise

from action by one or both chambers alone. That Congress continues to use the device of the

rulemaking statute suggests that it considers this mechanism not to violate the Chadha

doctrine, because the mechanism governs only procedures that regulate the internal operations

of Congress itself, and therefore rests not at all on the legislative power of Congress, but on

its rulemaking power instead.

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Each house may also supersede or override the rulemaking provisions of law that

make up the expedited procedure for trade agreements by use of its general

constitutional rulemaking authority in several other ways. The following sections

discuss some of these additional forms in which Congress exercises its rulemaking

powers, including:

! making procedural decisions about whether the procedures established by

rulemaking provisions of law apply in a specific situation, or to a specific

measure;

! considering an implementing bill, though qualified for consideration under the

Section 151 rulemaking provisions, under procedures different from those

specified by the rulemaking provisions;

! determining to act, not on an implementing bill qualified for consideration

under the Section 151 rulemaking provisions, but instead on some other

legislation that would have the effect of implementing the same trade

agreement; or

! adopting general changes in those rulemaking provisions of law through

subsequent action by resolution or subsequent rulemaking statute.

Determining Application of Rules

The authority of each house over its own rules fundamentally includes the power

not only to establish and alter rules, but also the ability to determine in what situations

the rules apply. Congress could use this ability as a means to enforce some of the

restrictions it places on the trade promotion authority. Under OTCA 1988, for

example, the President might have negotiated a nontariff trade agreement for which

he neither gave the required 90 days notice of signing nor submitted the required

supporting documentation along with the implementing bill. If any Member moved

that the chamber consider a bill to implement this trade agreement, another Member

might raise a point of order that Section 151 makes the motion privileged only on

measures for which the required notification and documentation are provided. If the

chair sustained this point of order, the measure in question could not be considered

under the expedited procedures, on the grounds that Section 151 did not qualify it for

such consideration.

Although the expedited procedure for trade does not explicitly establish any

point of order of this kind, raising it would presumably be in order as an exercise of

the general power of each house over its own rules. Action of this sort would likely

also be effective in enforcing the limitations established by Congress on the trade

promotion authority. The President would probably be unable to implement the

agreement through administrative action, for OTCA 1988 provided that any nontariff

trade agreement for which the submission requirements were not met could not enter

into force (that is, take effect).45

OTCA 1988, Section1103(a) (19 U.S.C. 2903).

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In principle, this way of applying the rulemaking power might also enable the

chamber to enforce the statutory requirements of the trade promotion authority,

which are not themselves rulemaking provisions. Leaders of one of the revenue

committees, for example, might wish not to consider a specified implementing bill

under the expedited procedures, because the trade agreement in question did not

advance objectives specified for the trade promotion authority. In cases of this kind,

however, the only way in which the chair could rule on whether an implementing bill

met the requirements of the rulemaking provisions of Section 151 would be by

making determinations about whether the agreement itself met the conditions placed

on the trade promotion authority. Because the provisions defining these objectives

are not rulemaking provisions, these determinations would have to rest on substantive

information about trade policy to which the chair would lack authoritative access.

For this reason, points of order of this kind would in practice not likely be raised

on the floor, at least in the House of Representatives. Instead, in advance of

considering the implementing bill, the House would likely adopt a special rule waiving

the point of order. By doing so, the House would preserve the qualification of the bill

for expedited consideration. Alternatively, the House might adopt a special rule

providing that the bill be considered under procedures other than fast track. This

action would prevent expedited consideration of the bill, just as would sustaining the

point of order. These options permit each chamber to reach the same alternative

outcomes as would the point of order, but convert the choice between outcomes from

a procedural decision to a political one.

Altering Procedure for Individual Measures

It is also well established that the rulemaking power extends to actions by which

either house authorizes exceptions to its rules (including rulemaking provisions of

statute), or otherwise alters the application of rules to specific cases. For this reason,

although the Trade Act made the expedited procedure for trade agreements available

for the implementing bills it covers, it could not compel either house to consider these

bills under this procedure. Pursuant to its constitutional rulemaking authority, either

house could have suspended or denied the application to a specific implementing bill

either of the expedited procedure as a whole, or of individual features of that

expedited procedure. It could do so while still retaining in force the existing

expedited procedure for trade generally.

The Senate most commonly exercises this form of authority over its rules

through action by unanimous consent. The House also may take such action by

unanimous consent, but more commonly does so by adopting a “special rule,” a

device that has no Senate counterpart.46

The Senate often adopts unanimous consent agreements establishing

comprehensive terms for considering a specified measure. These terms then

altogether supersede those of the general rules, to the extent of any conflict. If

In principle, either house could take action of this kind also by means of a motion to suspend

the rules. The Senate, however, rarely makes use of this motion, and the House would

probably be unlikely to do so for these purposes.

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unanimous consent could be obtained for the purpose, the Senate could decide to take

up an implementing bill, not pursuant to Section 151 at all, but instead under whatever

other terms the unanimous consent agreement provided. By unanimous consent, the

Senate could also set aside specified individual features of the expedited procedure.

It could, for example, take up an implementing bill by unanimous consent rather than

by the privileged motion provided in the statute. It could also extend or reduce the

time available for debate on the measure or on specified motions or other questions,

permit the offering of a motion that Section 151 precludes, etc.

Probably the only feature of the expedited procedure that the Senate could not

alter by unanimous consent is the prohibition on amendments. The chair could

entertain no such request for unanimous consent, because Section 151 prohibits action

to supersede the prohibition on amendment. The Senate might still permit

amendments by tacit unanimous consent: if no Senator were to raise a point of order

to enforce this (or any other) requirement of the expedited procedure, the Senate

could consider the measure while ignoring that requirement. Also, if the Senate took

up an implementing bill pursuant to a comprehensive unanimous consent agreement

rather than under the expedited procedure, the prohibition on amendment contained

in that expedited procedure presumably would not apply.

In the House, special rules, which are resolutions setting terms for the

consideration of a specified measure, are reported by the Committee on Rules and

adopted by simple majority vote. The House normally limits debate on a special rule

to one hour, and precludes its amendment, by ordering the previous question. By use

of this device, the House could at any time determine to take up an implementing bill,

and consider it under terms providing whatever latitude for its debate and amendment

the Committee on Rules finds appropriate and a majority is willing to accept. In

principle, the House also might set aside individual provisions of the expedited

procedure (except the prohibition on amendment) by unanimous consent, but in

practice, it would less likely be able to obtain unanimous consent for such a purpose.

Typically, the House could be expected to take up an implementing bill pursuant

to a special rule rather than under the expedited procedure. By affording

consideration of the bill under a special rule, instead of pursuant to the privileged

motion to proceed, the leadership would retain its normal control of the floor agenda.

The House would also avoid having to have the chair determine substantive questions

about whether the trade agreement met the requirements of the trade promotion

authority through nominally procedural decisions about the eligibility of the

implementing bill for consideration under Section 151.

Considering Alternative Measures under General Rules

The constitutional rulemaking power also permits each house always to recover

its effective freedom of choice in legislation by circumventing the expedited procedure

altogether. Several means exist for each house to exercise this capacity. First,

although Section 151 protects the motion to consider an implementing bill, it does not

require any Member to offer this motion, and cannot require either house to adopt it.

To this extent, Congress retains its usual discretion not to act.

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Second, the availability of the statutory expedited procedure for implementing

bills cannot prevent either house from considering some other measure that might deal

with the same subjects. After the President has submitted a draft implementing bill,

or even before then, the revenue committee in either chamber could report a measure

dealing with the same matters, but containing different provisions. This chamber

could take up, amend, and pass this alternative, instead of acting on the implementing

bill prescribed by the Trade Act. The House would most likely take this kind of

action pursuant to a special rule, which probably would also provide that the original

implementing bill not be considered. The Senate, again, would most readily achieve