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Fast track trade promotion authority renewal has become the premier vehicle for airing America's ambivalence about trade and globalization. The most recent renewal - in August 2002 - followed an eight-year stalemate in Congress. Opponents decry fast track as a blank check for the President to pursue trade agreements that undermine hard won social and environmental protections. Proponents portray fast track as a litmus test of America's leadership on trade and as a patriotic imperative. Fast track was intended to be neither. It was conceived as a mundane procedural deal: Congress would streamline its approval process into an up-or-down vote to enhance the President's credibility in negotiating complex multilateral trade agreements in return for enhanced congressional oversight. There is a need for a new approach that can command bipartisan common ground. It would be far better to weigh the overall benefits and costs to different segments of American society and to international interests in concrete terms in the context of specific trade agreements.
Fast track trade promotion authority renewal has become the premier vehicle for airing America's ambivalence about trade and globalization. The most recent renewal-in August 2002-folloioed an eight-year stalemate in Congress. Opponents decry fast track as a blank check for the president to pursue trade agreements that undermine hard won social and environmental protections. Proponents portray fast track as a litmus test of America's leadership on trade and as a patriotic imperative. Fast track was intended to be neither. It was conceived as a mundane procedural deal: Congress would streamline its approval process into an up-or-down vote to enhance the president's credibility in negotiating complex multilateral trade agreements in return for enhanced congressional oversight.
The bruising debate over renewing fast track in 2002 and the unprecedented razor-thin voting margins in the House of Representatives underscore the need for a new approach that can command bipartisan common ground, which is the ultimate guarantor of U.S. credibility in international negotiations. A return to first principles is necessary to determine the most promising basis for cooperation between the president and Congress in advancing America's interests on trade. The real power of fast track is the underlying political compact between Congress and the president rather than its statutory guarantees, which are technically quite fragile. The convention of legislating a generalized but time-limited grant of fast track invites a regular, heated debate in the abstract over whether trade is good or bad and whether trade agreements should cover labor and environmental standards. This approach has led to severed failed attempts to restore fast track, culminating in its passage only after a divisive and partisan legislative battle, which has deepened the partisan divide and augurs ill for future progress on trade legislation.
It would be far better to weigh the overall benefits and costs to different segments of American society and to our international interests in concrete terms in the context of specific trade agreements. This more targeted approach can be achieved through three procedural fixes: strengthening congressional input into the negotiating process, seeking to limit the application of fast track to only those agreements whose complexity and scope clearly warrant it, and narrowing the grant of authority and the associated substantive guidance from Congress to particular trade agreements.
I. INTRODUCTION: THE DEBATE
Fast track has become the Moby Dick of American trade politics. Since 1994, when it was last in effect,1 presidents and trade supporters have expended enormous political capital zealously pursuing the great white whale. The hunt for this elusive quarry has several times come close to capsizing the ship of American trade policy.2
Soon after taking office, President Bush signaled that, like President Clinton before him, fast track (or "trade promotion authority" in the current lexicon) would be his top trade priority on the legislative agenda.3 When he signed the Trade Act of 2002 (2002 Act)4 into law on August 6, the President proclaimed it a "victory for the American economy" and said that "after eight years, America is back in the business of promoting open trade to build our prosperity and to spur economic growth."5 Republican leaders in the House of Representatives echoed the President's sentiments, calling the renewal of fast track "a grand victory for America's workers and businesses."6 Many business groups were also effusive, stating that "the legislation will usher in a new era of opportunity in the international marketplace."7
At the same time, a number of key trade policymakers and constituencies criticized the fast track bill with equal vigor. Representative Sander Levin (D-MI), the ranking Democratic member of the House Ways and Means Subcommittee on International Trade said: "It's a bad deal for American workers and businesses. The underlying legislation remains fatally flawed."8 Representative Charlie Rangel (D-NY), the ranking Democratic member of the House Ways and Means Committee, and Senator Jay Rockefeller (D-WV), a leading Democrat on the Senate Finance Committee, issued a similar statement.9 AFL-CIO President John Sweeney went further, declaring that the bill "will cost millions of family-supporting jobs at a time when America's workers are already struggling,"10 and Lori Wallach, the Director of Public Citizen's Global Trade Watch, claimed that "this legislation [is] universally opposed by every U.S. environmental and consumer organization, a wide span of religious denominations, small business groups, the NAACP, the entire U.S. labor movement, the National Organization for Women, and many other groups representing the majority of Americans."11
These polarizing views raise important questions. Is fast track the prize that its proponents claim it to be? Does its reenactment help to bridge the chasm between free trade supporters and opponents? Was the protracted stalemate that ended simply a reflection of "Inside-the-Beltway" politics or a symptom of a more profound divide in American public opinion?
The answers lie somewhere in the middle. Fast track is important precisely because it has become a political symbol of America's commitment to free trade. On this point, proponents and opponents agree.12 Even a number of trading partners claim that they were reluctant to enter into trade negotiations with the United States, or at least to tackle sensitive issues, without fast track.13
This perception of fast track, however, stands in stark contrast to what fast track actually does as a piece of legislation. Fast track originated as a relatively narrow procedural measure.14 It does not authorize the negotiation of any agreements that the president could not negotiate under his own constitutional powers, require inclusion of any specific provisions in any agreements, or guarantee the ratification of any agreements.15 Perhaps the greatest irony of fast track is that it has come under attack as being undemocratic and for undermining public accountability when it was actually designed to do just the opposite.16
A close examination suggests that fast track is a highly conditional grant of authority from a legal point of view;17 its considerable power in practice has derived from convention and the implicit political compact between the president and Congress. The most recent debate over the renewal of fast track in the Congress was bruising, divisive, and sharply partisan. House passage hinged on margins of one to three votes. In one case legislators acquired the necessary votes twenty minutes after the official fifteen-minute voting time limit had expired by offering trade-restrictive concessions.18 The victory may prove pyrrhic, undermining the central aim fast track was designed to achieve- namely, to forge a unified U.S. position for dealing with trade negotiations based on consultations and joint efforts between the president and Congress. These recent votes, as well as the preceding eight years of stalemate, demonstrate the need for a new approach based on a fresh look at the procedural questions originally animating fast track-how much authority should Congress give to the Executive in formulating U.S. trade policy and what oversight should Congress demand in exchange?19
II. THE ORIGINS OF FAST TRACK
At first glance fast track appears to be a revolutionary concept. It bypasses the constitutionally prescribed method for approval of U.S. international agreements-the president securing the advice and consent of two-thirds of the Senate for treaties he negotiates.20 It instead involves a vote on international trade agreements by both houses of Congress and requires only a simple majority in each house.21 Fast track eliminates some of the greatest obstacles to agreement approval: (1) interminable debate or filibuster; (2) amendments that act as "poison pills" or that would require renegotiation of agreement provisions; (3) and procedures that can stall legislation in committees or otherwise avoid a vote by the full House or Senate.22 Fast track is the product of many years of rebalancing and refining the responsibilities of the legislative and executive branches in international trade policy.23
A. Congressional Control of International Trade
Prior to the twentieth century U.S. regulation of foreign commerce was almost exclusively a congressional prerogative; U.S. tariffs were subject to change only by an act of Congress.24 The setting of tariff rates was more a function of domestic tax policy than foreign affairs, based in large part on Congress's power to regulate foreign commerce25 and the conventional treatment of trade legislation as a "bill . . . for raising revenue."26 During this time the President's main responsibilities were to administer and collect the tariffs set by Congress and to negotiate bilateral treaties of friendship, commerce, and navigation.27 These treaties included a U.S. commitment to most-favored-nation (MFN) treatment, which extended to treaty partners the lowest tariffs applied to the same goods from other countries.28
B. Initial Delegation of Authority to the President
The onset of the Great Depression led to the first significant congressional delegation of tariff modification authority to the President. Believing that high tariffs had contributed to the Depression,29 Congress passed the Trade Act of 1934 (1934 Act) to authorize the President "to enter into foreign trade agreements with foreign governments . . . and to proclaim such modifications of existing duties and other import restrictions . . . to carry out any [such] trade agreement."30 The 1934 Act was a major departure that effectively "pre-approved" presidential authority to negotiate international trade agreements and to offer tariff reductions within certain limits.31 The Act required, moreover, that any such tariff reductions would be extended not only to the reciprocating agreement partner, but also to all countries eligible for MFN treatment.32
C. Expansion of the President's Role and Presidential Overreaching
The 1934 Act was limited in duration,33 but Congress extended and reenacted it until 1962 through eleven successive Trade Agreement Extension Acts.34 After the expiration of the Extension Act of 1958, Congress renewed the president's tariff modification authority for five years under the Trade Act of 1962 (1962 Act),35 thereby allowing the United States to participate in the Kennedy Round of General Agreement on Tariffs and Trade (GATT) negotiations.36 The 1962 Act went further than previous legislation by authorizing the president, in some instances, to eliminate tariffs rather than just reduce them.37 At the same time, it added provisions to enable Congress to supervise actions taken by the president-namely, a requirement that the president promptly transmit copies of any concluded agreements and a statement of his reasons for entering into them,38 and a requirement that he accredit four members of Congress as members of the U.S. negotiating delegation.39
The Kennedy Round ended in 1967 with an array of tariff-reduction commitments by the United States, but also with two agreements relating to matters beyond tariff rates-the GATT Antidumping Code and an agreement requiring changes in the way the United States valued imports for customs purposes.40 These non-tariff agreements sparked considerable controversy and led some in Congress to conclude that the President had overstepped his authority by entering into them without specific authorization or approval from Congress.41
D. Balancing the Roles of Congress and the President
Tensions over the two Kennedy Round non-tariff agreements came to the fore in the early 1970s when Congress considered a new grant of authority for the president in connection with the Tokyo Round of GATT negotiations.42 Congress recognized that, unlike previous trade negotiations, the Tokyo Round would go well beyond tariffs and would focus on non-tariff trade barriers.43 In light of concerns over how the earlier antidumping and customs valuation agreements were handled, however, Congress decided to maintain oversight and final control over non-tariff agreements.44
In the Trade Act of 1974 (1974 Act), Congress renewed the president's authority to lower U.S. tariffs as part of reciprocal tariff reduction agreements but established a new regime for consideration of any non-tariff agreements-i.e., those relating to measures other than tariffs that can impair or distort trade.45 While the legislation once again "pre-approved" the president to enter into tariff agreements and proclaim tariff changes to effectuate such agreements,46 the 1974 Act made clear that the president had no such advance approval for any non-tariff agreements. The 1974 Act instead required legislation to implement all non-tariff agreements,47 effectively requiring that the president submit non-tariff agreements to Congress for approval.48
At the same time, Congress recognized that its insistence on subsequent review and approval of trade agreements could disadvantage U.S. negotiators. Foreign governments might be unwilling to invest considerable time and resources in multilateral negotiations without some assurance that U.S. negotiators had a good chance of securing congressional approval in a timely manner.49 Congress therefore established a new regime for consideration of non-tariff agreements that attempted to balance the need for a reasonable chance of success (or at least a timely vote), on the one hand, and congressional oversight on the other.50 To do so, Congress developed procedures that called for an up-or-down vote within strict deadlines if the president consulted with Congress during the negotiation of an agreement.51 Thus, fast track was born.
III. HOW FAST TRACK WORKS
The fast track provisions of the 1974 Act were renewed or revised in 1979,52 1984,53 1988,54 and 1993.55 The last incarnation of fast track, which expired on April 15, 1994,56 struck the same balance between expedited review and enhanced congressional oversight as the 1974 Act, elaborating on a number of the original procedures.57 The 2002 Act revised these procedures slightly, as described in Section IV.
Fast track legislative provisions can be loosely divided into three broad categories. First, there are a series of provisions designed to improve Congress's ability to learn about and have input into negotiations.58 Second, there are provisions outlining the legislative procedures by which fast track operates. These include the anti-amendment, anti-bottling in committee, and anti-filibustering provisions that are at the heart of fast track.59 And, third, there are a number of ways Congress (as well as a house of Congress or a committee) can withdraw application of fast track from certain agreements or in its entirety.60 These are the provisions that are least known, discussed, or understood about fast track-provisions that make fast track a highly fragile mechanism for approving international agreements.61
A. Congressional Oversight Provisions
The essential steps required for application of fast track are as follows:
NEGOTIATING OBJECTIVES. Incident to fast track procedures, Congress enumerates overall and narrow (referred to as "principal") negotiating objectives to guide the president in concluding agreements.62 These objectives make clear that Congress expects to see (or not see) certain types of provisions in the agreements the president submits for fast track review. Overall objectives include obtaining "more open, equitable, and reciprocal market access," "the reduction or elimination of [market] barriers," and strengthened "international trading disciplines and procedures."63 Principal negotiating objectives include removing impediments to U.S. exports of certain industry-specific products (e.g., agricultural or high-tech products), as well as improved rules relating to services, foreign direct investment, transparency in trade laws and institutions, and dispute-settlement procedures.64 At most, these objectives establish priorities and give general direction, but they provide little detail and leave the president with broad discretion as to how such matters are to be addressed in agreements.
CONSULTATION. Before entering into a trade agreement subject to fast track procedures, the president must consult with the House Ways and Means Committee and the Senate Finance Committee, as well as any other congressional committees having jurisdiction over the subject matter of the agreement.65 Such consultations must cover not only the substance of the agreement but also how it would relate to Congress's prescribed negotiating objectives and how it would be implemented under U.S. law.66 This requirement, however, does not specify the extent or depth of any such consultations, nor how often such consultations are to occur. A literal reading of the requirement would seem to allow the president to consult in a cursory fashion, just once and perhaps even moments before he enters into an agreement. The 2002 Act has attempted to impose more structure on these consultations than past fast track laws as discussed in Section IV.
CONGRESSIONAL ADVISERS. The president's chief trade negotiator, the United States Trade Representative (USTR), is required to designate members of Congress as "Congressional Advisers," (Advisers)67 who are charged with providing "advice on the development of trade policy and priorities for the implementation thereof."68 In general, the Speaker of the House selects five representatives as Advisers based on the recommendation of the Chairman of the Ways and Means Committee.69 The president pro tempore of the Senate selects five senators based on the recommendation of the chairman of the Finance Committee.70 No more than three of the five Advisers so chosen from each House of Congress are to be from the same party.71 The Speaker and the president pro tempore may select additional members for designation as Advisers from any other committee that has jurisdiction over legislation likely to be affected by negotiations.72 The USTR is required to "keep each official adviser . . . currently informed" on trade policy issues in general and on issues relating to particular negotiations.73 In addition to the Advisers, the 2002 Act creates a new Congressional Oversight Group (Oversight Group),74 which will be comprised of the following: (1) the chairman and ranking member of the Committee on Ways and Means; (2) three additional members of that committee (not more than two of whom are to be of the same party); (3) the chairman and ranking member (or their designees) of the committees that, under the rules of the House, would have jurisdiction over provisions of law affected by trade negotiations; (4) the chairman and ranking member of the Committee on Finance; (5) three additional members of that committee (not more than two of whom are from the same party); and (6) the chairman and ranking member (or their designees) of the committees that, under the rules of the Senate, would have jurisdiction over provisions of law affected by a trade negotiation.75 The 2002 Act gives the Oversight Group special responsibilities, including the development of a schedule and guidelines for consultations with the administration.76 In addition to working with these specially designated members of Congress, the president must establish advisory committees representing a broad array of U.S. industries and interests.77
NOTICE. The president must notify the Senate and House of Representatives of his intention to conclude a trade agreement at least ninety calendar days before doing so,78 and must also publish the notice in the Federal Register.79 The president's failure to take either measure would prevent the agreement from entering into force at all.80 With respect to agreements reached as part of the Uruguay Round of GATT negotiations, the notification period was extended to 120 days.81
TRANSMITTAL. Upon completion of negotiations, the president must submit to the Senate and the House of Representatives the text of a proposed agreement, as well as various statements (1) explaining how the Executive Branch intends to carry it out; (2) explaining how existing U.S. law would need to be changed in order to comply with the agreement; (3) asserting that the purposes and negotiating objectives of Congress are advanced by the agreement; and (4) explaining why the agreement is in the interests of the United States.82
IMPLEMENTING BILL. To have legal effect domestically, a fast track agreement must be incorporated into U.S. statutory law by an implementing bill enacted by Congress.83 This requirement serves several purposes: it ensures that the president submits international trade agreements to Congress, because he does not have the power to conclude such agreements without congressional support; it ensures Congress's ability to apply the legislative process to the aspects of the agreements that create new domestic law; and it guarantees that, unlike treaties (which require only the advice and consent of the Senate), these agreements receive the approval of both the Senate and the House of Representatives. As a result, fast track agreements do not automatically become federal law and do not supersede prior inconsistent acts of Congress. Congressional approval of an agreement, rather, has the effect of giving the United States new obligations under international law, but the implementing bill defines the domestic application of the agreement.84 Since the implementing bill governs under U.S. law, it is possible for the United States to be in breach of its international obligations to the extent that the implementing bill is inconsistent with the trade agreement.
"GATEKEEPER" NOTIFICATION. Special conditions apply to bilateral or regional free trade agreements (FTAs). These agreements involve the elimination of substantially all tariffs and other formal trade barriers between participating countries.85 With respect to these types of agreements, fast track applied only if a foreign country requested the negotiations,86 the agreement advanced Congress's negotiating objectives,87 and the president gave notice of the commencement of the negotiations (as opposed to his intention to enter into the agreement) to the Ways and Means and Finance Committees, and consulted with them at least sixty legislative days before his notice of intent to enter into an agreement.88 The early notification requirement allowed the congressional committees with primary responsibility for trade issues to learn of the president's intentions before or during the early stages of negotiations. The 2002 Act dispensed with this "gatekeeper" committee notification requirement but required the president to provide Congress with notice of his intention to enter into negotiations ninety calendar days before doing so.89
B. Fast Track Legislative Procedures
To be effective, fast track procedures must overcome three principal obstacles. They must block introduction of amendments that could undermine support for an agreement or require the president to reopen negotiations that may have taken years to conclude with possibly over a hundred states; they must prevent filibustering or interminable debate; and, they must guarantee an up-or-down vote, barring procedural delaying tactics (such as bottling the agreement in a committee).90
MANDATORY INTRODUCTION. Following the president's transmittal of a proposed agreement, its implementing bill, and required supporting materials, the respective majority leaders, on behalf of themselves and the minority leaders or their designees, must introduce the implementing bill in both houses.91 If the House of Representatives or the Senate is not in session on the day of transmittal, lawmakers must introduce the bill on the first day that house of Congress is in session.92
REFERAL TO RELEVANT COMMITTEES. Following introduction of the implementing bill, the presiding officer in each house of Congress must refer it to committees having jurisdiction over the subject matter of the agreement and bill. At minimum, this means referral to the Ways and Means Committee, the Finance Committee, the Agriculture Committees, and possibly others.93
NO AMENDMENTS. No amendments to the implementing bill are permitted in the House of Representatives or the Senate. This limitation applies to committee considerations and votes by either chamber.94
AUTOMATIC DISCHARGE. After its introduction, committees may not consider the bill for more than forty-five legislative days (i.e. days that Congress is in session).95 If the implementing bill is not reported out of the committees within that time frame, those committees are automatically discharged and the bill is placed on the appropriate calendar.96
LIMITED FLOOR DEBATE. Debate is limited in each house of congress to twenty hours. The House of Representatives apportions these hours evenly to supporters and opponents of the bill. The Senate divides the time between the majority and minority leaders or their designees.97
TIMELY VOTE. A vote on ultimate passage of the bill must occur in the House of Representatives and the Senate within fifteen legislative days after the bill is reported out of the committees or the automatic discharge of those committees. Thus, the maximum period for congressional consideration of a fast track implementing bill is sixty legislative days, but of course a final vote could occur in less time.98
NO CONFERENCE COMMITTEE. Because they may not amend bills considered under fast track procedures, the House of Representatives and the Senate necessarily vote on the same language. Thus, there is no need for a conference committee to resolve differences. To the extent that one chamber approves a bill before the other, the second chamber votes on the bill approved by the first.99 This practice is a formality, as the bills are pending in both houses are the same.
ENACTMENT AND PROCLAMATION. If either chamber rejects the bill, the president is faced with the choice of attempting to renegotiate the agreement to meet congressional concerns, ratifying and implementing those parts of the agreement that do not involve a change of a U.S. statute (if such severability is possible), or withdrawing from the agreement (trade agreements requiring congressional approval are typically negotiated with a proviso indicating that the United States is not bound absent such approval). If both houses approve the bill, it is presented to the president for signature. The president then puts the agreement into effect for the United States by proclamation.100
C. Methods of Withdrawing Fast Track
While Congress seeks to provide U.S. negotiators and trading partners with reasonable assurances of obtaining an up-or-down vote on agreements, Congress makes clear through mechanisms allowing for its withdrawal that it ultimately controls fast track's application. Congress maintains a prerogative to deny fast track treatment if the president fails to comply with certain required procedural steps, the president proposes agreements Congress does not like, or either house of Congress chooses to terminate fast track altogether.
These provisions make fast track an easily retractable mechanism from a technical standpoint and underscore that the power of fast track in practice derives from convention and the underlying political compact between Congress and the president. Congress provides fast track in exchange for enhanced input into the shaping of trade agreements. If the president appears to violate the spirit of congressional intent in negotiating an agreement, Congress could trigger the withdrawal mechanisms sounding the death knell not only for fast track review of that agreement, but also for the underlying trade agreement itself.101 It is notable, however, that the legislature has seldom used these withdrawal provisions.
FAILURE TO MEET CERTAIN CONDITIONS. As a baseline prerequisite, agreements negotiated under fast track provisions cannot enter into force unless the notice, transmittal, and implementing bill requirements described above are met.102
SUNSET PROVISIONS. Every law instituting fast track has been time-limited. The 1974 Act, the first fast track law, had a five-year duration.103 Subsequent iterations of fast track have had similar end dates.104 These "sunset provisions" let the president know that he has to cooperate with Congress if he hopes to see fast track renewed. The Omnibus Trade and Competitiveness Act of 1988 (1988 Act) added a twist in its "sunset provision." Rather than extending fast track for five years, it did so outright only for three years.105 Agreements entered into after that time, however, could be eligible for fast track consideration if the president requested an extension.106 The 1988 Act provided that Congress would grant that extension unless either house passed an "extension disapproval resolution"107 for lack of "sufficient tangible progress"108 in meeting Congress's negotiating objectives. The 1988 Act thus heightened the need for the president to work cooperatively with Congress. The 2002 Act has a similar "sunset" provision, applying through June 1, 2005, with automatic renewal until June 1, 2007, unless either house passes a disapproval resolution before June 2005.109
DISAPPROVAL FOR FAILURE TO CONSULT. As noted above, the literal terms of the president's obligation to consult with Congress in the past were rather sparse. However, fast track procedures leave to Congress the determination of whether there is adequate consultation. To the extent that Congress determines that the president has not adequately consulted Congress with respect to a given agreement, it can withdraw fast track treatment for that agreement through passage of a "procedural disapproval resolution" by both houses.110 Such a resolution is privileged-i.e., it is not subject to filibuster, bottling, or amendments-and it formerly had to be introduced by the chairperson or ranking minority members of the House Rules or Ways and Means Committees and the Senate Finance Committee.111 The 2002 Act eliminated this introduction limitation; it permits any member to introduce such a resolution.112 To be effective, both houses of Congress need to pass such a resolution within sixty days of each other.113
"GATEKEEPER" COMMITTEE DISAPPROVAL. Under the 1984 and 1988 Acts, the Ways and Means Committee and the Finance Committee were each empowered to withhold fast track procedures from a proposed bilateral or regional free trade agreement by voting to disapprove of the negotiations within sixty legislative days of receiving the president's notice, described above.114 The disapproval procedure allowed Congress (through designated committees) to make a substantive determination that it did not approve of a proposed free trade agreement. Because the president was required to give early notice of negotiations for a bilateral or regional free trade agreement, this special disapproval procedure allowed the Ways and Means and Finance Committees to serve as "gatekeepers," acting as a threshold barrier the president must overcome in order to proceed. It not only set a higher bar for fast track consideration of free trade agreements, but it also enhanced the authority of these committees. The 2002 Act, however, discontinued use of this disapproval procedure but, as noted above, adopted an analogous requirement that the president notify Congress of his intention to enter into negotiations ninety days prior to doing so.115
UNICAMERAL REPEAL. Fast track provisions include a declaration that they are not ordinary legislation, but rather are "an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such [are] deemed a part of the rules of each House, respectively."116 Each house, moreover, reserves its "constitutional right . . . to change the rules . . . at any time, in the same manner, and to the same extent as any other rule of that House."117 This means that although these procedures are included in legislation passed by both houses and presented to the president for signature and enactment into law, they retain the status of rules that each house of Congress applies to itself and can thus alter or revoke like any other rule. Thus, at any time and for any reason, one house of Congress can repeal fast track outright.118
IV. THE DIVISIVE BATTLE TO RENEW FAST TRACK IN 2002
In drawing inferences from the divisive fast track battle of 2002, Abraham Lincoln's aphorism that "a house divided against itself cannot stand"119 should give pause not only to the foes of fast track but also its supporters. The process has left many participants embittered and did further damage to the fragile bipartisan consensus that guided U.S. trade policy from World War II until the ratification of the North American Free Trade Agreement (NAFTA).120 In late July 2002, when it became clear that Vast track passage would hinge on the thinnest of margins in the House of Representatives, Representative Sander Levin observed: "This is not the type of authority which facilitates a broadly bipartisan trade policy. Another narrow vote will not be a victory for U.S. trade policy, but instead will mean trouble for each new trade agreement because all of the same issues and debates will be repeated."121
House Republicans, with the apparent support of a Republican administration, chose to pursue legislation that hewed very close in all but name to previous fast track bills, with important but limited concessions on several substantive areas. The result was an unusually divisive process that alienated many customarily pro-trade Democrats. House Republicans chose instead to muster greater support among their own ranks in part by making concrete upfront concessions in the form of trade-restrictive measures in textiles, steel, and agriculture. The process created a deep divide at home and sent a confusing signal to foreign trading partners, who were left questioning the value of the U.S. promise to negotiate future trade-opening agreements in the face of immediate trade rollbacks. On the Senate side, Democratic proponents found themselves expending much of their capital on achieving enhancements to adjustment assistance for workers displaced by trade.
Notably, although key members of the House and the Senate initially advanced interesting proposals to improve the procedural deal at the heart of fast track, they were rejected or abandoned when the debate over substantive issues became all-consuming. As a result, Congress made very little progress on updating the procedural provisions of fast track, which could have commanded broad bipartisan support and improved the environment for consideration of future trade agreements. This outcome is unfortunate, because (as we argue below), the substantive provisions of fast track legislation (the negotiating objectives) have little prescriptive power under existing procedures.
A. The House Debate
In September 2001 Republican Ways and Means Committee Chairman Bill Thomas (R-CA) introduced a new fast track proposal that he characterized as a "Bipartisan Compromise."122 Leading Ways and Means Democrats Charlie Rangel, Sander Levin, and Robert Matsui, immediately took issue with the characterization of the Thomas proposal as "bipartisan,"123 noting they had not been consulted.124 They offered an alternative proposal with key differences in five areas:
* Labor Standards. Although the Thomas proposal differed from previous fast track laws in including labor standards and their enforcement among its negotiating objectives, it simply mandated enforcement of a given trading partner's existing domestic standards without prescribing an acceptable minimum standard. The alternative bill specified the five core labor standards developed in the International Labor Organization as a threshold foreign governments should be pressed to meet.125
* Environmental Standards. The Thomas proposal included environmental standards and their enforcement as a negotiating objective. The alternative bill, however, proposed more specific provisions to protect measures instituted pursuant to multilateral environmental agreements from trade actions and investor suits allowed by trade agreements (which typically have more potent enforcement mechanisms than environmental agreements).126
* Investment. The alternative bill included language designed to ensure that foreign investors in the United States would not receive more favorable treatment than domestic investors. Specifically, the proposal stated that a mere diminution in the value of an investment would not alone constitute expropriation by the government, which might form the basis of legal "taking" claims compensable through damages. The proposal was intended, at least in part, to prevent aggressive investor-state disputes that might chill environmental, labor, and other domestic health or safety regulations.127
* Trade Remedies. The alternative bill contained language ensuring that trade agreements not weaken the ability of the United Sates to take prompt and effective action under domestic trade remedy laws and that such agreements should strive to eliminate the underlying causes of unfair trade practices.
* Agriculture. Both proposals devoted attention to agriculture in anticipation that it would be a central focus of upcoming multilateral negotiations. The alternative bill differed from the Thomas bill by requiring that U.S. trading partners reduce their agricultural subsidies to a level at or below the U.S. level before the United States would consider lowering its own.128
* Congressional Oversight. On procedural issues, the Thomas bill differed from previous fast track laws in creating a new Congressional Oversight Group that would be accredited as official advisors to U.S. trade delegations and would work closely with the USTR throughout the negotiating process. It also mandated enhanced consultations with the Ways and Means and Finance Committees, the House and Senate Agriculture Committees, and the newly formed Congressional Oversight Group. In contrast, the alternative bill would create a reinvigorated group of Congressional Trade Advisers, who not only would be responsible for monitoring trade negotiations as under prior fast track laws, but who also would have to agree with the president that fast track negotiating objectives had been met prior to the completion of trade negotiations. The alternative proposal would further institute a biennial review whereby a minority of members could bring a resolution to the floor of the House or Senate once each Congress to disapprove application of fast track procedures to ongoing trade negotiations. Finally, it would provide an opportunity to bring a resolution of disapproval directly to the floor of the House and Senate if the United States decided to embark upon new regional or multilateral trade negotiations other than the upcoming World Trade Organization (WTO) and Free Trade Area of the Americas (FTAA) talks.129
Support for the two proposals quickly split along party lines. On October 10, 2001, in a largely partisan vote of twenty-six to thirteen, the Ways and Means Committee approved the Thomas proposal after first voting down the Rangel-Levin-Matsui alternative.130 Key Democrats were disappointed that the approved bill contained almost no concessions and failed to adopt any of the major concepts contained in the Rangel-Levin-Matsui proposal.131
The partisan divide deepened further as the process continued. On December 6, 2001, the House approved the Thomas bill by a vote of 215 to 214, with 194 Republicans and 21 Democrats voting for it.132 Talks aimed at garnering Democratic support for the legislation had repeatedly stalled, and the House Republican leadership delayed the vote for weeks as it scrambled to expand Republican support, offering key concessions to various agriculture and textile interests.133 Indeed, on the day of the House vote, as the official fifteen-minute time limit for the vote drew to a close, the House leadership apparently still did not have the votes necessary to secure passage.134 A letter, signed by House Speaker J. Dennis Hastert (R-IL), Majority Leader Dick Armey (R-TX), and Majority Whip Tom Delay (R-TX), was given to Representative Jim DeMint (R-SC), promising a rollback of certain Caribbean Basin Initiative benefits opposed by the textile industry in DeMint's district-a concession that nearly cost the support of the trade promotion bill's key author, Representative Thomas.135 Some twenty minutes after the end of the official fifteen-minute time limit, DeMint switched his vote from no to yes, and three undecided Republicans stepped forward to vote in favor of the measure.136 The tie-breaking vote of Representative Robin Hayes (R-NC), who had previously opposed the measure, secured the passage of the bill.137 Immediately following the vote, Representative Rangel said that "[t]his shatters the tradition of bipartisanship on trade bills."138
B. The Senate Debate
Senate Finance Committee Chairman Max Baucus (D-MT) and Ranking Minority Member Charles Grassley (R-IA) introduced in the Senate, in December of 2001, the Bipartisan Trade Promotion Authority Act of 2001, which was approved by the Finance Committee by a vote of eighteen to three.139 From the beginning, fast track enjoyed broader bipartisan support in the Senate than in the House, but issues quickly arose over trade adjustment assistance (TAA) for workers displaced by trade and special treatment for trade remedies. In a time-honored tradition dating back to the Trade Expansion Act of 1962, Senate Democrats determined to link renewal of fast track with renewal and enhancement of TAA.140 The Baucus-Grassley bill would have expanded TAA to a seventy-eight week eligibility period and would have included secondary workers. Senate Majority Leader Tom Daschle (D-SD) proposed an even more expansive version of TAA as an alternative.141 The Bush Administration and many congressional Republicans opposed these proposals, arguing the costs would be prohibitive.142
On April 29, a Senate fast track bill was introduced as an amendment to the bill to renew the Andean Trade Preferences Act, and the Senate agreed to limit debate of the bill by a vote of sixty-nine to twenty-one.143 The debate over TAA escalated, but ultimately on May 21, 2002, lawmakers reached accommodation, clearing the way for trade promotion authority and trade adjustment assistance to move forward jointly.144
The Senate floor debate over the bill included a variety of amendments. Perhaps most notably, Senators Mark Dayton (D-MN) and Larry Craig (R-ID) introduced an amendment that would allow the Congress, by a point-of-order requiring sixty votes in the Senate to defeat, to exclude from fast track consideration any trade agreement provisions changing U.S. trade remedy laws.145 Concerned that the measure would limit the administration's ability to complete trade deals, senior administration officials labeled it a "killer amendment" and threatened a veto.146 Despite the warning, the Senate approved the amendment by voice vote after defeating a motion to table it by a vote of sixty-one (forty-four Democrats and sixteen Republicans) to thirty-eight,147 after lowering the number of votes needed to defeat the proposed point-of-order to a simple majority of fifty-one.148 The amended bill passed the Senate by a vote of sixty-six to thirty on May 23, 2002, with forty-one Republicans, twenty-four Democrats, and one Independent voting for the bill and five Republicans and twenty-five Democrats voting against it.149
C. A Second One-Vote Margin in the House
The resulting Senate bill differed from the House bill in several key respects, including the linkage to TAA and the Dayton-Craig amendment. The bills would have to be reconciled if a final package was to be voted on and presented to the president. In order to strengthen the House position in the ensuing Conference Committee, Chairman Thomas pressed for an unusual House "rule" that would modify the House position.150 On June 26, 2002, the House approved the proposed "rule" again by a one-vote margin in a partisan 216 to 215 vote.151 Democratic support for the "rule" was even thinner than the initial bill: ten of the twenty-one Democrats who voted for the original House bill voted against the "rule," but the motion was passed in part with the favorable votes of six Republicans who had voted against the initial House bill.
D. The Conference Compromise and the Third Close House Vole
Soon after the work of the Conference Committee began, a bicameral compromise was reached. Late on the night July 25, 2002, the conferees agreed on a final bill that Conference Chairmen Baucus and Thomas lauded as a step in "rebuilding the consensus on trade."152 The final version of the bill included a compromise TAA package153 with many of the Senate Democrats' key priorities. But it stripped out the Dayton-Craig amendment, putting in its place a strengthened negotiating objective on trade remedies and the threat of a non-binding congressional resolution of disapproval of proposed changes to U.S. trade remedy laws.154
In a third close vote, the House approved the Conference version of the bill on July 27, 2002, by a vote of 215 to 212. House members remained sharply divided along party lines. The bill garnered support from 190 Republicans and 25 Democrats, including 3 Republicans and 5 Democrats who voted against the initial bill in December.155 The measure was opposed by 183 Democrats and 27 Republicans.156 Four Republicans and one Democrat who had supported the measure in December voted against the conference report.157
Less than a week later, on August 1, 2002, the Senate approved the conference package by a 64 to 34 vote.158 The bill was approved by forty-three Republicans, twenty Democrats and one independent and was opposed by five Republicans and twenty-nine Democrats.159 Four Democrats, including Senator Mark Dayton, and one Republican who voted for the bill in May, rejected the conference report, while one Republican who had opposed the original bill voted in favor of the conference measure.160 Despite the removal of the Dayton-Craig amendment from the conference report, Senator Craig voted in favor of the final bill, as did Senate Majority Leader Daschle.161 On August 6, 2002, President Bush signed the 2002 Act into law, declaring that "starting now, America is back at the bargaining table in full force."162
Comparing the House votes in connection with the 2002 Act, previous grants of fast track authority in Tables 1 and 2, and votes on trade agreements over the past decade in Table 3 starkly illustrates the extent of partisan division. These tables demonstrate that Democratic support appears to have hit an all-time low in the 2002 House votes both in terms of absolute numbers and percentages.
E. Trade Promotion Authority: A Change in Name but Not Procedures
If the only goal was to secure fast track renewal, then the 2002 vote can be counted as a success. And indeed, the legislation's key authors in the House appear to have pursued a strategy of making the minimal amount of changes necessary to secure passage, even if by a handful of votes. They changed the legislation's name and made symbolically important but limited changes to the negotiating objectives, but they left the basic structure intact.
1. Updated Negotiating Objectives
That the 2002 version of fast track rests on the same foundation as its predecessors is not to say that its changes are unimportant. The revised language of a number of negotiating objectives commands considerable political and symbolic import, but without a basic change to the procedures governing fast track, it is likely to have little operational impact.
The final bill requires labor and environmental issues to be given the same consideration as other negotiating objectives,163 which would seem to allow trade-related labor and environmental issues to be included in the main body of a trade agreement and to be enforced through the same dispute-settlement mechanisms used for more conventional trade issues. Critics charge, nonetheless, that the new language does not go far enough. And in large measure, it can be seen as simply updating fast track, reflecting the new ground that the U.S.-Jordan Free Trade Agreement, which was passed without benefit of fast track procedures, had already ploughed.164
Other noteworthy innovations with respect to the negotiating objectives include language calling for improved anti-corruption measures,165 less burdensome or unfair foreign regulatory practices,166 and increased transparency in the promulgation and implementation of trade-related laws.167 These objectives cover nontraditional and often subtle impediments to trade that may become increasingly problematic as formal trade barriers are dismantled. In addition, the 2002 Act includes as negotiating objecives seeking enhanced trading conditions for small businesses,108 modified procedures for settling investor-state disputes,169 and, as discussed in Section IV above, firm direction to protect U.S. trade remedy laws.170
While these negotiating objectives may represent noteworthy advancements in a number of areas, it is unclear that they will have a great practical impact. As explained in Section VI.A, no matter how carefully drafted, a negotiating objective in a broad grant of negotiating authority covering a variety of possible trade agreements is necessarily imprecise and unlikely to be strictly binding in practice when a particular agreement is brought to Congress for review.
2. Limited Procedural Changes
In terms of the structure of how fast track works, little has changed. The new law essentially repeats prior practice with respect to the mandatory introduction of an implementing bill, the automatic referral to relevant committees, the rules against bottlenecking or amending a bill, the limits on debate, the guarantee of a timely vote, and the avoidance of a conference committee.171 Similarly, the new law preserves most of the withdrawal mechanisms that had previously been in effect. It allows for a disapproval resolution to be introduced based on the president's failure to consult adequately with Congress or to meet other procedural requirements,172 it has a three-year "sunset" provision (with an automatic two-year extension unless such extension is disapproved),173 and it continues to allow either house to repeal fast track at any time.174 The 2002 Act, however, departs from the 1988 Act by not requiring the president to provide special advance notice of regional or bilateral free trade agreements to the "gatekeeper" committees or providing for a "gatekeeper" committee disapproval procedure.175
The lone area in which the new law contains procedural enhancements is with regard to executive-congressional consultations. Like earlier fast track laws, the 2002 Act requires the president to notify Congress of his intent to enter into agreements176 and to consult with relevant committees and specially designated congressional advisers before and throughout the course of negotiations.177 The new law, though, goes further by requiring that a schedule and guidelines for consultations be established and adhered to.178 The new law also creates a new Congressional Oversight Group, which is charged with spearheading consultations with the administration and formulating the consultation guidelines.179
In addition, the 2002 Act calls for a number of specialized reports and consultations. With regard to trade remedy laws, the president must explain to the Senate Finance and House Ways & Means Committees any proposed changes a fast track agreement would make.180 In doing so, the president must explain how such proposed changes are consistent with the fast track negotiating objectives.181 The 2002 Act also establishes a mechanism for any member of Congress to introduce a privileged resolution declaring proposed changes to U.S. trade remedy laws as being inconsistent with applicable negotiating objectives.182 Finally, the 2002 Act mandates consultations for sensitive areas, such as agriculture, fishing, and textiles.183
V. A RETURN TO FIRST PRINCIPLES: THE "NEED" FOR FAST TRACK AND ITS USES
The protracted struggle to renew fast track and the yawning partisan divide in the House of Representatives inevitably raises the question of whether the 2002 Act will materially advance American trade policy. To address this question, this section examines whether and when fast track is necessary as well as how fast track has been used.
A. A Peculiarly American Institution?
Fast track is generally singled out as a peculiarly American institution, reflecting the unique challenge of making trade policy in a system where power is divided between the executive and legislative branches.184 It has been justified on the ground that the United States faces far greater hurdles than other countries in ratifying and implementing international trade agreements. In fact, a close examination suggests fast track is a uniquely American answer to a challenge that is far from uniquely American.185 Almost all democratic systems have some mechanism for the legislature to amend, delay, or defeat an international agreement (or its means of implementation) in the face of significant opposition.186
It is true that for many foreign countries approval of trade agreements is fairly automatic; this is most likely in parliamentary systems where the prime minister is by definition the leader of the majority bloc in the legislature, and there is only partial, if any, separation between the legislature and the executive. In Japan and India, for instance, the legislature plays a limited role in treaty approval-voting only on certain treaties, approving most with little rancor, and lacking the ability to offer amendments as a practical if not a legal matter.187
In other parliamentary countries such as Australia and the United Kingdom, there is a dualist system in which treaties must be implemented through separate legislation in order to have the effect of domestic law.188 The need for domestic implementing legislation creates opportunities for parliaments to offer interpretations or take positions that may not be consistent with the letter or spirit of an agreement. In some federal systems such as Canada and Germany, the federal government is limited in its ability to bind states or provinces.189 Switzerland presents an extreme example of this, where certain types of trade agreements have traditionally required approval not only by the legislature, but also through a referendum requiring a majority of the electorate and the Swiss provinces.190
The European Union (EU) requires the European Commission (Commission) to muster a consensus, or at least a weighted majority, among sovereign member nations through the Council of Ministers.191 Accordingly, the Commission goes to great lengths to build advance support for its negotiating positions among member-states, primarily through the so-called 133 Committee, which consists of national trade officials.192 Unlike fast track, however, this process does not always involve a formal vote. This has been evident in several instances where one member state (e.g., France) has sharply pulled back the Commission in the endgame of multilateral agricultural negotiations.193 Following approval of a trade agreement at the EU level, some member states require additional domestic implementing legislation to ensure national laws are in compliance.194
B. Uses of Fast Track
One of the great anomalies of fast track is that, while it has acquired great symbolic significance in the trade debate, it was invoked only five times during the twenty years it was previously in effect-applying to only a small minority of the trade agreements concluded by the United States during that time:195
1. A package of fourteen agreements resulting from the Tokyo Round of multilateral negotiations within the framework of GATT, approved in 1979;196
2. The U.S.-Israel Free Trade Agreement, approved in 1985;197
3. The U.S.-Canada Free Trade Agreement, approved in 1988;198
4. The NAFTA, approved in 1993; and199
5. A package of 54 multilateral and plurilateral agreements, understandings and declarations resulting from the Uruguay Round of multilateral GATT negotiations, approved in 1994.200
But if the bulk of U.S. trade agreements can be implemented without fast track, it raises the question of whether fast track is really necessary at all.
1. The Need for Legislation
Fast track agreements are not distinguished from other trade agreements by their size, complexity, or importance. For example, the bilateral agreement concerning China's WTO accession, which was implemented without fast track,201 affects far more trade than has the U.S.-Israel Free Trade Agreement.202 What most distinguishes fast track agreements, rather, is the extent to which changes to U.S. law are required and the degree to which Congress expects to be involved in the process. Trade agreements approved and implemented without fast track have generally required only rather narrow changes to U.S. law. The China agreement involved one significant but narrow legislative change-granting permanent MFN treatment to China, which until then had been subjected to annual MFN reviews.203 In contrast, agreements implemented through fast track have involved extensive and complex implementing legislation.
But even this distinction, while broadly true, is qualified. For instance, Congress approved the U.S.-Israel Free Trade Agreement under fast track procedures but also approved the nearly identical U.S.-Jordan Free Trade Agreement without the benefit of fast track, suggesting that there is a political overlay to these distinctions.
The need for a simple procedural vehicle for making changes required by trade agreements to U.S. law is the core motivation for fast track. Absent this need, the president likely could act on his own accord.204 The president has considerable powers in the realm of foreign affairs, where the Supreme Court has even gone so far as to label him the sole organ of the nation's in foreign affairs.205 In light of this authority, the president has entered into a large number of agreements recognizing foreign governments, establishing procedures for resolving international claims, and otherwise governing U.S. relations with foreign governments.206 These "sole executive agreements" are fully binding on the United States, and they trump state law.207 The main limitation on them is that they not be inconsistent with the Constitution or a preexisting federal statute.208
As a practical matter, one could argue that multilateral or regional agreements might have more need for fast track than bilateral agreements because any changes to a multilateral agreement required by Congress would necessitate renegotiation of the affected provisions with multiple countries. But the actual use of fast track is less clear: fast track to date has been used for two bilateral treaties (the U.S.-Canada and U.S.-Israel agreements), one regional agreement (the NAFTA), and two multilateral agreements (the Tokyo Round and the Uruguay Round agreements). Ironically, NAFTA, which essentially involved the addition of just one country to an existing bilateral free trade agreement (the U.S.-Canada Free Trade Agreement), arguably faced the greatest congressional opposition and was thus most likely to be thwarted through procedural tactics if fast track did not apply.209 Accordingly, the number of countries involved in an agreement appears to be an important but not dispositive determinant of fast track's utility or applicability.
2. An End-Run on the Constitution's Treaty Provisions?
If the president must resort to an approval mechanism that has the same force and effect as a federal statute, the natural question that arises is why trade agreements are not implemented through the Constitution's treaty provisions, which are used for a wide range of U.S. international agreements, including bilateral investment agreements.210 The Constitution provides that treaties approved by two-thirds of senators present can have automatic and immediate effect, can have the same force of law as statutes, and can supersede any prior inconsistent federal, state, or local law.211 If so, why resort to fast track?
There appear to be two main reasons. The first is that the two-thirds Senate vote required to approve a treaty has proved to be a far greater hurdle than was originally anticipated, turning the Senate into what some have called "the graveyard of treaties."212 A large number of treaties have failed even to get a vote because of filibusters and other procedural roadblocks, or they have been passed with amendments or reservations that make ultimate ratification unfeasible.213 Where a vote is held, however, the great majority of treaties gain approval.214
The second is that the House of Representatives has historically played a major role in regulating foreign commerce based in part on the constitutional mandate that "all Bills for Raising Revenue shall originate in the House of Representatives."215 As a legal matter, this position overlooks the fact that treaties are not "bills" and that modern trade agreements generally decrease rather than raise tariff revenue.216
Nonetheless, although it may be legally and theoretically possible to implement a trade agreement through a Senate-approved treaty, as a political matter the president cannot ignore the House's resolute determination to be involved in trade policy.217 If the president were to use the constitutional treaty mechanism for trade agreements, he likely would feel compelled to also implement the agreement through companion legislation (modifying tariffs and possibly other laws) requiring majority support in both houses of Congress-a daunting double challenge.218
Instead, the preferred vehicle has been congressional-executive trade agreements.219 These are agreements negotiated by the president and approved by both houses of Congress.220 Unlike treaties, these agreements generally have no direct effect under U.S. law.221
By signing them, the president may bind the United States internationally, but this is not sufficient to change U.S. law.222 Any changes required to bring U.S. law into compliance with an agreement are put into an implementing bill that both houses must pass.
Of course, congressional-executive agreements could be processed with or without fast track.223 Just as it is a political question for the president as to which form of agreement he might choose, it is equally a political judgement call as to whether to use fast track procedures in connection with an agreement.224
VI. A PRESCRIPTION FOR PROGRESS
The recent debate over fast track and the preceding eight-year stalemate revolved around three sets of issues. First, substantial attention was devoted to whether and how Congress should mandate inclusion of labor and environmental standards in trade negotiations.225 This debate was fundamentally about whether Congress could reach a political accommodation on the substantive guidance it gives to the president regarding the content of trade agreements. The razor thin margins and deep partisanship that characterized the three House votes are sobering.
The second set of issues was put front and center in 2001-2002 by Senate Democrats who took the position that enhanced authority for concluding new trade agreements should necessarily be paired with increased trade adjustment assistance-i.e., increased benefits that now include health care payments in addition to traditional unemployment insurance and training benefits for workers suffering job loss associated with trade.226 Although this linkage was initially contested, it is likely that the enhanced TAA benefits will quickly be accepted as the new baseline.
The third question is procedural: how best to structure fast track to facilitate a productive relationship between Congress and the president in advancing America's national interests in its trade policies. This question received the least amount of attention and deserves far more, since it has great potential to put U.S. trade policy on a more constructive course. Accordingly, we focus our recommendations on this procedural question.
Procedurally, fast track can serve valuable purposes. America's negotiating position is stronger when foreign governments are assured that complex trade agreements requiring extensive changes to U.S. laws will be given a timely up-or-down vote. And meaningful congressional input into negotiations will result in agreements informed by political realities that have a better chance of commanding domestic support.
Is the current form of fast track the best way of doing this? While the new law has made advances, more needs to be done. The main problem is the abstract nature of the fast track debate. Asking Congress for an open-ended grant of authority to pursue trade agreements whose benefits are as yet undefined and far into the future is a recipe for trouble. A powerful coalition of trade opponents has repeatedly mobilized effectively to thwart fast track legislation.227 In contrast, supporters galvanize to mount a full counter-offensive only when there are concrete benefits in the offing. A simple comparison makes the case. In 1997 and 1998, with no trade agreement pending, fast track failed in the House.228 In 1993, however, when the hard won gains of the Uruguay Round hung in the balance, the vote was 295 to 125 in the House, with nearly 60 percent of Democrats in support.229 And, as described above, the 2002 fast track bill passed only after one of the most protracted and divisive trade battles in years.
Neither the president nor Congress nor the American people win from this recurring debate. In seeking fast track, the president is inevitably compelled to make the case that it is vital to his ability to negotiate on trade,230 giving foreign trade partners the perfect excuse to blame negotiating impasses or failures on the president's lack of authority from Congress.231 And the succession of failed efforts to renew fast track has put members of Congress in the no-win position of being forced to declare every few years whether they are for or against trade in the abstract.232
It is counterproductive to turn fast track into a quest in its own right. The key, rather, is to find a pragmatic mechanism for negotiating and expeditiously implementing balanced trade agreements. Is there a way to achieve a balance between enhanced congressional oversight and congressional procedural restraint without inviting the protracted stalemate seen for the past eight years? The answer is almost surely yes. A more effective fast track would require meaningful congressional input into negotiations, more selective application of fast track by the president, and closer targeting of fast track provisions to particular agreements.
A. Enhanced Consultations
Congressional input into and oversight of trade negotiations is accomplished only in part through enumeration of the negotiating objectives. It is difficult to draft sufficiently precise negotiating objectives in a grant of authority that will cover a number of very different agreements over three to five years. However well the negotiating objectives are crafted, moreover, it is very difficult for Congress to test if they have been adequately advanced for purposes of disapproval. The fact that there have been only two serious attempts to deny fast track treatment to an agreement (where fast track otherwise was in effect and would apply absent congressional invocation of one of its disapproval mechanisms) underscores that the disapproval mechanisms serve as a fallback check rather than the first line of defense against the president's ability to secure fast track consideration of a controversial agreement.233
In practice, although negotiating objectives draw much of the fire and fury in the fast track debate, mechanisms ensuring meaningful consultations between the president and key members of Congress during negotiations are far more important. Former fast track rules were quite vague as to the extent, frequency, and timing of consultations. The 2002 Act has taken a first step by calling for a timetable and guidelines to be established for consultations.234 Building on this, strengthened procedures should provide for:
* More formalized reporting and assessment of whether the Executive Branch is working in good faith to develop a negotiating strategy in line with congressional guidance;235
* The Congressional Trade Advisers236 and Congressional Oversight Group should be required to consult regularly with the Majority and Minority Leadership in both chambers and all committees having relevant jurisdiction to ensure broader congressional input;
* The Congressional Trade Advisers and Congressional Oversight Group should be responsible for providing the president and U.S. negotiators with the sense of the Congress on the state of negotiations and should have the ability to obtain congressional "positions" formally or informally, as appropriate or needed;237
* Members charged with oversight must devote adequate time, attention, staff, and resources to track negotiations that may involve thousands of products and more than a hundred countries;238 and
* Dedicated trade staffers need to be involved early in negotiations, stay current through years of talks, be available to travel overseas for protracted negotiations, and develop suitable procedures for safeguarding classified U.S. negotiating materials and positions.239
The creation of a nonpartisan group of professional congressional staff dedicated to trade would help make congressional oversight meaningful.240 Members now are highly dependent on the executive branch, the U.S International Trade Commission, and the General Accounting Office for analysis of trade negotiations and disputes. Greater in-house expertise would afford the opportunity for more in-depth and timely input as negotiations proceed, thereby increasing the ability of Congress to formulate innovative positions and reducing the need to legislate detailed negotiating instructions in the abstract.
It bears mentioning that the new law is unclear as to the different roles to be played by the Congressional Trade Advisors, a hold-over from prior fast track laws,241 and the new Congressional Oversight Group.242 These groups could have identical or overlapping membership, or could be quite diverse. They could work in unison or be at odds with one another. However these two bodies are managed, it would be prudent to use them to expand congressional input and additional resources into finding a broadly supported, balanced U.S. negotiating position.
B. More Selective Use of Fast Track
Between 1999 and 2001, the U.S. Congress enacted six pieces of trade legislation in the absence of fast track authority.243 One of them, the U.S.-Jordan Free Trade Agreement Implementing Act, was nearly identical to the implementing bill passed by Congress in connection with the U.S.-Israel Free Trade Agreement. Although the political support for both was similarly strong, the Israel FTA was approved under fast track procedures,244 while the Jordan FTA was not.245 Despite this, there was no attempt to introduce "poison pill" amendments during consideration of the U.S.-Jordan FTA, and an attempt to delay consideration of the agreement failed.246 In addition, a growing number of countries, including Chile, Singapore, and Australia, have indicated willingness to negotiate free trade agreements with the U.S. without the safety net of fast track.247
The record suggests there is greater scope to secure approval of trade agreements without fast track than is generally acknowledged, and that the president could be more selective in the agreements for which he seeks fast track. Only those agreements that require extensive changes to U.S. laws-and that perhaps involve multiple negotiating partners-hinge centrally on fast track procedures.248 Because such agreements are rare, important, and years in the making, it is reasonable for Congress to expect the president to provide greater specificity up front on the uses of a particular grant of authority.249 It raises the question of whether the Bush administration erred in making an immediate bid for an open-ended grant of trade promotion authority its top priority rather than first putting their own stamp on the trade agenda, committing to a limited set of agreements for which fast track would he used, and making sure key initiatives were ripe for congressional scrutiny.
Future presidents would be well advised to postpone seeking fast track until there is a compelling case that contemplated negotiations will yield agreements of sufficient complexity and scope to necessitate fast track. Conversely, the president and Congress should continue to respectively seek and grant fast track authority for particular agreements that truly merit it.250 It would be extremely detrimental to U.S. leadership if the current methods, resulting in recurring clashes and impasses, encouraged negotiation of only those agreements that are sufficiently uncontroversial that they do not risk being picked apart by Congress under normal procedures.
C. Congressional Oversight: Targeted Fast Track
The most difficult challenge is to strike a better balance on the oversight provisions of fast track. In principle, if confronted with a controversial agreement, Congress under past fast track laws had the authority to withhold fast track treatment on the simple grounds of "failure to consult." But in practice, Congress never withheld fast- track procedures from agreements that came within the definitional scope of the law.
Nonetheless, critics are wrong to describe fast track as a blank check. The Senate Finance Committee wrested major concessions before permitting free trade agreement negotiations with Canada to proceed,251 and although extension disapproval resolutions on NAFTA failed in committee,252 the underlying concerns were nonetheless addressed in the negotiating endgame. These are only the most extreme examples where the president made accommodations to overcome congressional opposition. Cases where such course corrections preempted incipient congressional action are likely far more common.
Although Congress failed to grant approval for renewal of general fast track authority on more than one occasion between 1994 and 2002, it never denied fast track treatment to a pending agreement or voted down a trade agreement under fast track.253 This suggests that Congress is more uneasy providing broad authority that could be used in unanticipated circumstances than with the actual agreements that the president has submitted for consideration.254 As long as fast track must be defended on the basis of the worst agreement that might be submitted, reenactment will always remain difficult.
There is an inherent tension between making fast track sufficiently flexible to apply to a broad variety of potential agreements and sufficiently precise to convey the expectations of an often divided Congress regarding the substantive content of such agreements. Mandate too much detail and fast track applies a one-size-fits-all approach to widely diverse and complex subject matters, sets a perhaps unachievable bar for U.S. trade negotiators, and forces Congress to have a contentious and often paralytic debate over the abstract dimensions of trade.255 But fast track without details and precision inevitably runs the risk of abdicating congressional oversight.
This phenomenon has been most apparent in the debate over labor and environmental standards.256 How these issues are treated conveys an important political statement, determining the priority given to these objectives. But it has proven difficult to reach agreement on precise prescriptive language for these complex matters that can be inserted into a fast track law designed to cover a wide array of agreements and countries with enormous variation in their levels of development and their commitment to social and environmental protections.
Striking the right balance hinges on the interaction of several provisions of fast track: the duration, the scope, the precision of the negotiating direction given to the president, and the mechanisms for withholding fast track treatment from a particular agreement. There are likely several different combinations that could be comparably effective in more closely targeting the substantive debate to particular agreements, while retaining the procedural value of greater cooperation between the branches.
One alternative would be to make each grant of authority specific to the negotiation of a particular agreement and the duration coterminous with the length of the negotiation. This would permit much more precision in the negotiating objectives. It would also allow Congress to confine debate to the potential merits of a particular trade agreement. It might prove overly restrictive, however, unintentionally signaling that the president does not have the authority to enter into or launch any negotiations until after he had obtained congressional approval.
At the other end of the spectrum, Congress could establish fast track procedural mechanisms for a longer duration or even on an indefinite basis and with open-ended application, but institute an additional hurdle for authorizing the application of the procedures to a particular agreement and for specifying the principal negotiating objectives. This would push the president to consult at the start of negotiations (or early in the process), and it would allow Congress to establish more specific objectives for each agreement than is possible in an omnibus fast track bill. The balance could be further fine tuned by specifying whether the additional hurdle would require involvement of only the "gatekeeper" committees or set a more difficult threshold of floor action, and second, whether the hurdle would entail obtaining approval or the lower bar of simply withstanding disapproval. The bigger and broader the overarching authority Congress gives, the greater the oversight afforded by the additional hurdles should be.
Simply put, providing Congress with strengthened oversight on specific agreements in return for a more durable procedural agreement between Congress and the president would go a long way toward avoiding the damaging stalemate that governed during the preceding eight years in the future.
1. Prior to 2002, the last time fast track authority was granted occurred in the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1121. That authority applied to qualifying agreements entered into by May 31, 1993. 19 U.S.C. [sec][sec] 2903(a)-(b). This date was extended to April 15, 1994, solely for purposes of implementing the Uruguay Round Agreements. 19 U.S.C. [sec] 2903(e). The history of fast track is discussed in Parts II and III below.
2. Helen Dewar, Bush Loses a Vote on Trade: White House Still Hopes to Kill Curb on Trade Pact Powers, WASH. POST, May 15, 2002, at A8; Helen Dewar, Senate, White House Resolve 'Fast Track' Trade Impasse, WASH. POST, May 10, 2002, at A5; John E. Yeng and Terry M. Neal, 'Fast Track' Defeat Illustrates Division That Could Block Clinton Agenda, WASH. POST, Nov. 16, 1997, at A1. See generally LM. destler, renewing fast track legislation (1997).
3. President Bush declared that "enactment of U.S. Trade Promotion Authority [is] at the top of his trade legislative agenda" in his 2001 International Trade Legislative Agenda, reprinted in inside U.S. TRADE, May 11, 2001.
4. H.R. 3009, 107th Cong. (2002).
5. White House Press Release, President Signs Trade Act of 2002; Remarks by the President at Signing of the Trade Act of 2002 (Aug. 6, 2002).
6. Press Release, House Ways and Means Comm. Chairman Bill Thomas, A Victory for America's Workers and Businesses, Says Thomas; President Bush Signs Trade Bill into Law (Aug. 6, 2002), available at http://waysandmeans.house.gov/press/2002/bodydocs/86-02body.htm; see also Press Release, House Majority Leader Dick Armey, Trade Law Puts U.S. on Fast Track to Better Economy (Aug. 6, 2002).
7. Press Release, Business Roundtable, The Business Roundtable Praises President Bush's Signing of Trade Promotion Authority Bill (Aug. 6, 2002). The National Association of Manufacturers and the National Foreign Trade Council also issued equally supportive statements.
8. Statement from the Honorable Sander M. Levin, House Ways and Means Subcomm. (Jul. 26, 2002), available, at http://www.house.gov/levin/pr-072602.html.
9. Joint Statement from Trade Bill Conferees Representative Charles Rangel and Senator Jay Rockefeller on Trade Conference Agreement (July 26, 2002), available al http://rockefeller.senate.gov/2002/pr072602.html.
10. Press Release, AFL-CIO, AFL-CIO Blast House Trade Vote, Bush Arm Twisting Squeezes Out Narrow House Fast Track Win (July 26, 2002), available at http://www.aflcio.org/news/2002/0728_fasttrack.htm).
11. Statement from Lori Wallach, Director of Public Citizen's Global Trade Watch, Bush Puts the Nation on a Fast Track Backward (Aug. 6, 2002), available ai http://www.citizen.org/pressroom/print-release.cfm?ID=1177.
12. See, e.g., Fast Track Supporters, Opponents Fight in Districts This Month, INSIDE U.S. TRADE, Aug. 17, 2001 (describing how both proponents and foes of fast track have argued not over the details of fast track legislation but over whether fast track and expanded international trade in general serve voters' interests). See also the statements discussed in supra notes 5-11 and their accompanying text.
13. see MAX BAUCUS, BIPARTISAN TRADE PROMOTION AUTHORITY ACT OF 2002, S. REP. No. 107-139 at 2 (2002) (listing the difficulties the President encounters in seeking ratification of trade agreements under ordinary congressional procedures and noting that "[a] foreign country may be reluctant to conclude negotiations with the United States faced with uncertainty as to whether and when a trade agreement will come up for approval by Congress"). Further,
El Salvador's ambassador to the U.S. this week said the U.S. and five Central American countries have already begun informal negotiations toward a free trade agreement through technical meetings, even though a formal launch of negotiations is unlikely to take place until Congress provides final passage to fast track. Ambassador Antonio Leon signaled that this would allow progress to be made on the FTA without formal negotiations.
El Salvador Official Says FTA Can Advance, Through Informal Talks, inside U.S. trade, Apr. 5, 2002; U.S.; see also Chile To Skirt Controversial Topics As FTA Talks Resume, inside U.S. TRADE, Mar. 30, 2002 ("U.S. negotiators also signaled that they did not plan to tackle controversial subjects[,] such as labor and the environment and key investment provisions, until later in the process, sources added.").
14. The origins of fast track are discussed in Part II, infra.
15. What fast track does and does not do is explained in Parts III and IV, infra.
16. For a discussion of fast track's origins as a means to increasing congressional oversight of trade negotiations, see Part II.D infra.
17. For a discussion of the technically fragile nature of fast track, see Part III.C infra.
18. See House Fast Track Textile Votes Won by Limiting CBI Fabric Benefits, INSIDE U.S. TRADE, Dec. 7, 2001.
19. See generally, CHARLES K. ROWLEY ET AL., TRADE PROTECTION IN THE UNITED STATES (1995). See also Michael I. Carrier, All Aboard the Congressional Fast Track: From Trade to Beyond, 29 GEO. WASH. J. INT'L L. & ECON. 687 (1996); Natalie R. Minter, Fast Track Procedures: Do They Infringe Upon Congressional Constitutional Rights?, 1 SYRACUSE J. LEGIS. & POLICY 107 (1995).
20. U.S. CONST., Art. II, [sec] 2, cl. 2.
21. 19 U.S.C. [sec] 2191 (2000) (setting forth fast track procedures). Although specific mention of approval of trade agreements by majority vote of both houses does not occur in the statute, as a doctrinal matter, it is accepted almost universally. See e.g., Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 801, 803 (1995) ("This framework [approval of agreements by majority vote of both Houses] has proved remarkably successful - to the point where it is now taken for granted by all foreign-trade professionals.").
22. 19 U.S.C. [sec][sec] 2191 (f) (2), 2191 (g) (2) (2000) (imposing limits on debate and the use of filibusters); 19 U.S.C. [sec][sec] 2191(f)(1) and (g)(1) (2000) (barring amendments); 19 U.S.C. [sec] 2191 (e) (2000) (establishing anti-bottlenecking committee procedures).
23. See generally, Edmund W. Sim, Derailing the Fast Truck for International Trade Agreements, 5 FLA. J. INT'L L. 471 (1990).
24. John Linarelli, International Trade Relations and the Separation of Powers Under the United States Constitution, 13 DICK. J. INT'L L. 203, 208 (1995); see also I.M. DESTLER, AMERICAN TRADE POLITICS 14 (3d ed. 1995). ("The Constitution grants the President no trade-specific authority whatsoever. Thus, in no sphere of government policy can the primacy of the legislative branch be clearer.").
25. U.S. CONST., art. I, [sec] 8, cl. 3.
26. U.S. CONST., art. I, [sec] 7, cl. 1. The zenith of congressional control over tariffs and U.S. trade policy may have been reached with the Smoot-Hawley Tariff Act of 1930. Tariff Act of 1930, Pub. L. No. 71-361, 46 Stat. 590 (1930). Under this Act, Congress set more than 20,000 tariff rates. Smoot-Hawley was also noteworthy for the high duties it imposed, resulting in an average ad valorem rate of 52.8 percent. See Harold Honju Koh, Congressional, Controls on Presidential Trade Policymaking After I.N.S. v. Chadha, 18 N.Y.U. J. INT'L L. & POL., 1191, 1194 n. 10 (1986).
27. Theresa Wilson, Who Controls International Trade? Congressional Delegation of the Foreign Commerce Power, 47 DRAKE L. REV. 141, 163-64 (1998) ("During the early years of the republic, trade relations were initiated by the President through bilateral treaties of friendship, commerce, and navigation.").
28. DESTLER, supra note 24, at 314; Wilson, supra note 27, at 163-64 (noting limits on presidential authority to regulate imports) (citing STEPHEN D. COHEN, et al., FUNDAMENTALS of U.S. FOREIGN TRADE POLICY 28-29 (1996) (prior to the 20th century, the President had essentially no authority to modify tariffs)); GORDON SILVERSTEIN, IMBALANCE OF POWERS: CONSTITUTIONAL INTERPRETATION AND THE MAKING OF AMERICAN FOREIGN POLICY 47-48 (1997) (noting the President's role as limited to ministerial acts in administering congressional policy).
29. H.R. Rep. No. 73-1000, at 2 (1934) (citing "high trade barriers built up in a frenzied effort to gain a so-called 'favorable balance of trade'" as a cause of the Depression).
30. Trade Expansion Act of 1934, [sec] 350(a) (1)-(2), Pub. L. No. 73-316, 48 Stat. 943, (943-44) (1934).
31. While the 1934 Act was a departure from prior practice, it was not the first instance in which Congress delegated tariff modification proclamation authority. Prior delegations of authority, however, were considerably less expansive and resulted in more limited tariff changes. The 1922 Tariff Act required the President to raise or lower tariffs to equalize the costs of production of articles produced in the United States and competing countries. For a description the 1922 Tariff Act, see the U.S. Supreme Court's decision in Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294 (1933), which held such delegations of authority to be constitutional. See also J.W. Hampton, Jr. Co. v. United States, 276 U.S. 394 409 (1928) (rejecting a challenge to the tariff modification provisions of the 1922 Tariff Act based on the argument that the congressional delegation of authority was excessive).
32. 19 U.S.C. [sec] 1881; Pub L. No. 23-316, 48 Stat. 943-44.
33. The President's authority under the Act originally was to last three years. See Trade Act of 1934, sec. 2(c); Pub. L. No. 73-316, 48 Stat 943, 944.
34. See H.R. Doc. No. 87-314, at 2. The President's authority under this Act was renewed every two to three years: 1937, 1940, 1943, 1945, 1948, 1951, 1953, 1955, and 1958. Congress's use of "sunset" provisions served as a check against potential presidential overreaching. Koh, supra note 26, at 1195 n. 14; R. PASTOR, CONGRESS AND THE POLITICS OF U.S. FOREIGN ECONOMIC POLICY 93-104 (1980). Through these extensions, the President entered into thirty-two bilateral agreements between 1935 and 1945 and concluded the General Agreement on Tariffs and trade (GATT) in 1947. Congress at times extracted concessions from the President in exchange for extending his tariff modification authority. These included the so-called "peril-point reporting requirement," which was enacted in 1948, repealed in 1949, restored in 1951, and finally eliminated in 1962. It prevented the President from negotiating the reduction of U.S. tariffs below certain "peril points." Another concession was the enactment of the "escape clause" or "safeguard" mechanism, enacted in 1951 and now codified at 19 U.S.C. [sec] [sec] 2251-53. It allows the United States to erect protective barriers in the face of import surges. See Koh, supra note 26, at 1996 n. 15.
35. 19 U.S.C. [sec][sec] 1801-1991.
36. DESTLER, AMERICAN TRADE POLITICS, supra note 24, at 74. Congressional Research Service, Fast track Implementation of Trade Agreements: History, Procedure and Other Options, Report No. 97-41E (hereinafter CRS Report 97-41E), at 2 (1997).
37. See, e.g., Trade Expansion Act of 1962, 19 U.S.C. [sec] 1364; ANDREAS LOWENFELD, PUBLIC CONTROLS ON INTERNATIONAL TRADE 114 (2d ed., 1983) (noting that the 1962 Trade Act allowed the President to lower duties by as much as fifty percent or eliminate them entirely as part of an agreement with the European Union).
38. Trade Expansion Act of 1962, sec. 226, Pub. L. No. 87-794, 76 Stat. 872, 876.
39. Trade Expansion Act of 1962, sec. 243, Pub. L. No. 87-794, 76 Stat. 872, 878.
40. DESTLER, AMERICAN TRADE POLITICS, supra note 24, at 71-72. The Johnson Administration also secretly negotiated the U.S.-Canada Automotive Parts Agreement in 1965. see Harold Koh, The Fast Track and United States Trade Policy, 18 BROOK. J. INT'L LAW 143, 146 n.8 (1984).
41 DESTLER, AMERICAN TRADE POLITICS, supra note 24, at 72; Koh, supra note 26, at 1197-1200.
42. DESTLER, AMERICAN TRADE POLITICS, supra note 24, at 142. CRS Report 97-41E, supra note 36, at 3.
43. H.R. REP. No. 93-571, at 3 (1973).
44. Id. at 20-21. Whereas tradition and practice firmly suggest that congressional action is needed to modify tariffs, the extent to which the President can effectuate changes to U.S. non-tariff barriers under his own constitutional authority is less clear. See infra notes 207-211 and accompanying text.
45. Trade Act of 1974, 19 U.S.C. [sec] 2101 et seq. (2000).
46. Id. at [sec] 2111.
47. Id. at [sec] 2112.
48. CRS Report 97-41E, supra note 36, at 3-4.
49. Koh, supra note 26, at 1201-02 (noting Congress's twin objectives of strengthening the President's negotiating position while reining in his ability to enter into non-tariff agreements without congressional approval).
50. DESTLER, AMERICAN TRADE POLITICS, supra note 24, at 72-73.
51. Trade Act of 1974, supra note 45, at 19 U.S.C. [sec] 2112 (2000).
52. Trade Agreements Act of 1979, Pub. L. No. 96-39, 93 Stat. 144 (1979). See Table 1.
53. Trade Agreements Act of 1984, Pub. L. No. 98-573, 98 Stat. 2948 (1984). See Table 1.
54. Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1121 (1988). See Table 1.
55. See 19 U.S.C. [sec] 2902(e) (1) (2000); Table 1. See also supra note 1 and accompanying text.
56. See supra note 1 and acompanying text.
57. See generally 19 U.S.C. [sec] 2902 (2000).
58. See, e.g., 19 U.S.C. [sec] 2112(b) (4) (A)(ii) (2000). See also H.R. 3009, 107th Cong., [sec][sec] 2104 and 2107 (2002).
59. See 19 U.S.C. [sec] 2191 (d)-(g).
60. See 19 U.S.C. [sec] 2903(c). See also H.R. 3009, [sec] [sec] 2103(c) and 2105(b).
61. For more on the fragility of fast track, see DESTLER, AMERICAN TRADE POLITICS, supra note 24, at 212.
62. 19 U.S.C. [sec] 2901. See also H.R. 3009, [sec] 2102.
63. 19 U.S.C. [sec] 2901 (a)(1)-(3). See also H.R. 3009, [sec] 2102(a).
64. See generally 19 U.S.C. [sec] 2901 (b)(1)-(16). See also H.R. 3009, [sec] 2102(b)(1)-(17).
65. 19 U.S.C. [sec] 2112(c). See also H.R. 3009, [sec] 2102(d).
66. 19 U.S.C. [sec] 2112(e).
67. 19 U.S.C. [sec] 2211(a)(2).
68. 19 U.S.C. [sec] 2211(a)(1).
69. 19U.S.C. [sec] 2211(a)(2)(A)(i).
70. 19 U.S.C. [sec] 2211(a)(2)(A)(ii).
71. 19 U.S.C. [sec] 2211(a)(1).
72. 19 U.S.C. [sec] 2211(a)(2)(A)(i)-(ii).
73. 19 U.S.C. [sec] 2211(b)(1).
74. H.R. 3009, 107th Cong. [sec] 2107 (2002).
75. H.R. 3009, [sec] 2107(a)(2)-(3).
76. H.R. 3009, [sec] 2107(b). The relationship between the Advisers and the Oversight Group is discussed in Part VI, infra.
77. 19 U.S.C. [sec] 2155(a)(1) (2002).
78. 19 U.S.C. [sec] 2903(a)(1)(A) (2002). See also H.R. 3009, [sec] 2104(a)(1).
79. Id.
80. 19 U.S.C. [sec] 2903(a)(1)(a). See also H.R. 3009, [sec] 2104(a)(1).
81. 19 U.S.C. [sec] 2902(e)(3)(A).
82. 19 U.S.C. [sec] 2903(a)(2)(B)(2). See also H.R. 3009, [sec] 2104(a)(1).
83. 19 U.S.C. [sec] 2903(a)(1)(B)-(C). See also H.R. 3009, [sec] 2104(a)(1).
84. See Michael C. McClintock, Sunrise Mexico, Sunset NAFTA-Centric FTAA: What Next and Why?, 1 Sw. J.L. & TRADE AM. 1, 17 (2000) (discussing the relationship between the domestic effects of implementing legislation and the international effects of trade agreements and comparing sources of law under fast track to sources of law under formal treaties).
85. 19 U.S.C. [sec] 2902(c)(1).
86. 19 U.S.C. [sec] 2902(c)(3)(B).
87. 19 U.S.C. [sec] 2902(c)(3)(A).
88. 19 U.S.C. [sec] 2902(c)(3)(C).
89. H.R. 3009, [sec] 2104(a)(1).
90. See McClintock, Sunrise Mexico, Sunset NAFTA-Centric FTAA, supra note 84, at 13 (discussing the same three concerns).
91. Id. [sec] 2191(b)(1)(A).
92. Id. [sec] 2191(c)(1).
93. Id. [sec] 2191 (c)(2).
94. Id. [sec] 2191(d). See 19 U.S.C. [sec] 2191(F)(1) (disallowing amendments on the floor of the House of Representatives); 19 U.S.C. [sec] 2191 (g)(1) (disallowing amendments on the floor of the Senate).
95. 19 U.S.C. [sec] 2191(e)(1); 19 U.S.C. [sec] 2191(e)(3).
96. 19 U.S.C. [sec] 2191(e)(1).
97. See 19 U.S.C. [sec] 2191(f)(2) (limiting debate in the House of Representatives); 19 U.S.C. [sec] 2191(g)(2) (limiting debate in the Senate).
98. 19 U.S.C. [sec] 2191(e)(1).
99. 19 U.S.C. [sec] 2191(e)(1)(A)-(B).
100. See McClintock, Sunrise Mexico, Sunset NAFTA-Centric FTAA, supra note 84, at 16-18 (describing the need to have both Houses enact the implementing bill and the consequences of congressional rejection of implementing bills).
101. Id. at 17.
102. See 19 U.S.C. [sec] 2903(a)(1). See also H.R. 3009, [sec] 2105(a)(1).
103. Trade Act of 1974, 19 U.S.C. [sec] 2111.
104. Congress renewed fast track authority via the Trade Agreements Act of 1979, Pub. L. No. 96-39, 93 Stat. 144; the Trade and Tariff Act of 1984, Pub. L. No. 98 Stat. 2948; and the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1121.
105. Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. [sec] 2903(b)(1)(A).
106. Id. at [sec] 2903(b)(1)(B)(i).
107. Id. at [sec] 2903(b)(1)(B)(ii).
108. Id. at [sec] 2903(b)(5)(A).
109. H.R. 3009, [sec] 2103(c)(1).
110. 19 U.S.C. [sec] 2903(c)(1)(a).
111. Id. at [sec] 2903(c)(1)(B)(i)(I)(introduction in the House); id. at [sec] 2903(c)(1)(B)(ii) (introduction in the Senate).
112. H.R. 3009, [sec] 2105(b)(2).
113. 19 U.S.C. [sec] 2903(c)(1)(A); H.R. 3009, [sec] 2105(b)(1).
114. 19 U.S.C. [sec] 2903(c)(2)(B).
115. See supra note 89 and accompanying text.
116. 19 U.S.C. [sec] 2903(d)(1); ee also H.R. 3009, [sec] 2105(c)(1).
117. 19 U.S.C. [sec] 2903(d)(2); see also H.R. 3009, [sec] 2905(c)(2).
118. See Wilson, supra note 27, at 173-74 (discussing the argument that critiques of fast track as a device that undermines congressional authority lack substance due to the ability of Congress to terminate fast track).
119. Lincoln made his famous statement in the speech launching his unsuccessful campaign in the election of 1858 to unseat Senator Stephen A. Douglas of Illinois. The statement has been widely quoted and discussed. See, e.g., ROBERT A. DIVINE, AT AL., AMERICA: PAST AND PRESENT, VOLUME I: TO 1877, 401-02 (1987) ("Lincoln tried to distance himself from his opponent by taking a more radical position. He argued that the nation had reached the crisis point in the struggle between slavery and freedom: 'A house divided against itself cannot stand. I believe this government cannot endure permanently half slave and half free.'").
120. For discussion of the debate and quarrels over NAFTA, see notes 209, 212, 240, and 242, infra.
121. Statement from the Honorable Sander M. Levin, supra note 8.
122. See Text: Outline of House Fast Track Compromise, INSIDE U.S. TRADE, Sept. 28, 2001 (describing the Thomas proposal); Paul Blustein, Trade Compromise Proposed; Goal is Passage of 'Fast Track' Authority for President, WASH. POST, Oct. 4, 2001, at E1 (reaction to Thomas proposal).
123. Representative Charles B. Rangel and Representative Sander Levin, Rangel and Levin Statement Following Chairman Thomas' Introduction of H.R. 3005 Concerning 'Fast Track'/ Trade Promotion Authority, reprinted in INSIDE U.S. TRADE, Oct. 3, 2001.
124. See supra notes 119 and 120 and accompanying text.
125. Id. The five core standards are: (A) the right of association; (B) the right to organize and bargain collectively; (C) a prohibition on the use of any form of forced or compulsory labor; (D) a minimum age for the employment of children; and (e) acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.
126. See supra note 123 and accompanying text.
127. Id.
128. Id.
129. Id.
130. Ways & Means Passes Fast Track Bill on Largely Partisan Vote, INSIDE U.S. TRADE, Oct. 10, 2001.
131. Id. See also Paul Blustein, Zoellick's Aggressive Push For Trade Bill Draws Fire, WASH. POST, Oct. 23, 2001, at E1.
132. Helene Cooper et al., House Votes Wide Trade Powers for Bush - 'Fast Track' Authority Wins Passage in 215-214 Tally; Senate Passage Expected, WALL, ST. J., Dec. 7, 2001, at A3. See Table 2.
133. Joseph Kahn, Vow To Scrap Latin Textile Deals Wins Vote on Bush Trade Powers, N.Y. TIMES, Dec. 8, 2001, at C1.
134. Id.
135. Id.
136. Id.
137. Id.
138. Press Release, Representative Charles Rangel, Rangel Disappointed With Fast Track Vote, Dec. 6, 2001.
139. See Senate Finance Approves Modified House Fast Track Bill By 18-3 Vote, INSIDE U.S. TRADE, Dec. 14, 2001.
140. See Daschle Sees Fast Track Vote Early this Year, Insists on TAA, INSIDE U.S. TRADE, Jan. 11, 2001.
141. The Daschle proposal sought to expand eligibility to include both "upstream" workers who had lost their jobs when a company they supplied parts to relocated or went out of business because of imports, and "downstream" workers who provided value-added processing for adversely impacted goods and services. See Trade Adjustment Assistance Reform Act: Side-by-Side Comparison of Current Law vs. Daschle Substitutes, reprinted in INSIDE U.S. TRADE, May 3, 2002. This proposal included benefits for farmers, ranchers, fishermen, truckers, and steel workers as well. Id. Daschle's proposal also extended the duration of benefits eligibility from seventy-eight to 104 weeks and reduced the amount of time in which eligible workers would be certified for the programs from sixty days to forty days. Id. The proposal included wage insurance provisions for workers over fifty, with a program capped at $100 million. Id. Workers displaced by trade who accepted a job earning less than the pay of their previous job would qualify for subsidies worth up to fifty percent of the wage differential, totaling up to $10,000 per worker over a two year period. In addition, it would allow for the certification of secondary workers even if primary workers in the same industry were never certified. Id. The plan also called for TAA eligible workers to receive subsidies equal to 75% of health care premiums under the COBRA program. Id.
142. See, e.g., Grassley Criticizes Daschle Over TAA Bill, INSIDE U.S. TRADE, May 3, 2002. In a Statement of Administration Policy, the Bush Administration warned that Daschle's TAA proposal would "severely distort the primary purpose of the [TAA] programs and hinder the ability of workers legitimately affected by trade to receive the assistance they need." Reprinted in Senate Breaks Deadlock Over Trade Deal with TAA Package, INSIDE U.S. TRADE, May 10, 2002. The Administration supported instead a stricter definition of eligible workers, shorter eligibility periods, a tax credit for health care that could be used by workers to purchase a less expensive alternative to COBRA, and lower caps on wage insurance. Id.
143. See Senate to Take Up Trade Package as TAA Deal Still Outstanding, INSIDE U.S. TRADE, Apr. 30, 2002.
144. Negotiators from both parties had not been able to close the gap on health care coverage rates to any closer than the Republican supporting health care benefits equal to 60% of COBRA costs and Democrats wanting 73%. Id. See also Cong. Rec. S4609, May 21, 2002 (statement of Senator Baucus). The TAA compromise included a 70% tax credit for health insurance premiums, mandating that all workers eligible for existing COBRA benefits must use them but allowing ineligible workers to purchase other health care coverage. The agreement limited benefits to primary workers and "upstream" workers, excluded steel workers, and capped the wage insurance program at $50 million. Id.
145. Cong. Rec. S4132, May 9, 2002 (statement of Senator Dayton).
146. According to Daschle Signals Willingness to Kill Dayton-Craig After Bush Warning, during a meeting between congressional leaders and President Bush on May 15, 2002, "the President said that the provision had to be removed in conference, according to White House spokesman Ari Fleischer. 'The President views that provision as a real show stopper, an anti-trade provision that can harm the cause of free trade,' he said in a May 15 briefing. But Fleischer stopped short of explicitly saying the president would veto the bill. 'I think that the congressional leaders have a very good understanding [Dayton-Craig is] a provision that needs to be removed at conference in order to get this agreed to,' he told reporters. Three members of the Bush cabinet had said in a letter to Congress before the May 14 vote on Dayton-Craig that they would recommend a veto if the Dayton-Craig amendment were included. One business source pointed out[, however,] that a 'credible veto threat' is generally issued directly by the White House, not by individual members of an Administration." INSIDE U.S. TRADE, May 17, 2002.
147. Dewar, supra note 2, at A8.
148. See Summary of Major Trade Bill Amendments, reprinted in inside U.S. trade, May 24, 2002.
149. Vote Summary of U.S. Senate Roll Call Vote, 107th Congress, 2d session (2002), vole number 130. See Table 2.
150. Representative Thomas explained his rationale for seeking the "rule" in a letter to House colleagues as follows:
This procedural vote is necessary to begin the trade conference. The rule contains the motion to go to conference plus a self-executing amendment to incorporate the House position on each of the bills the Senate included. The Senate took one House-passed bill, stripped it, and added four other bills. In order to avoid having NO House position on these additional bills, including Trade Promotion Authority, it is necessary to move forward the House position on each of these bills-most of which have already passed the House. This rule establishes the best and most recent House position for conference and is necessary to prevent the Senate from having an advantage over the House in conference.
Thomas Letter on House Rule, reprinted in INSIDE U.S. TRADE, June 28, 2002, at 26 (emphasis in original). In terms of specific changes, the most important difference between the earlier House-passed fast track bill and the "rule" was the inclusion of TAA provisions. Id.
151. House Passes Motion on Conference with Scant Democratic Support, INSIDE U.S. TRADE, June 28, 2002, at 1-2. See Table 2.
152. Trade Promotion Authority and Trade Adjustment Assistance: Rebuilding the Consensus on Trade, Agreement Between Chairman Baucus and Chairman Thomas, reprinted in INSIDE U.S. TRADE, July 26, 2002.
153. Final Trade Bill Agreement Falls Short of Senate TAA provisions, INSIDE U.S. TRADE, JuLy 26, 2002. Under the terms of the conference bill, workers would be eligible for a 65% tax credit for health insurance premiums, which would not be limited to one year as set forth in the House bill but would instead be extended for the duration of TAA eligibility. Id. The program includes secondary workers and those affected by shifts in production to overseas facilities and applies to farmers and ranchers but not steel workers or fishermen. Id. The program also extends benefits for up to two and a half years and provides budgetary funds for training programs, though at lower levels than passed in the Senate bill. Id. The package contains wage insurance programs, despite the Administration's suggestion earlier in the year that the inclusion of these provisions would make the final bill unacceptable to the President. Id.
154. Final Fast Track Deal Weakens Trade Remedy Provisions, Strips Dayton-Craig, INSIDE U.S. TRADE, Aug. 2, 2002, at 8.
155. See House Passes FastTrack Trade Package With Three-Vote Margin, INSIDE U.S. TRADE, Aug. 2, 2002, at 19. See Table 2.
156. Id.
157. Id.
158. See Senate Acts on Trade Package After Close House Vote, inside U.S. TRADE, Aug. 2, 2002, at 1. see Table 2.
159. Id.
160. Senate Acts on Trade Package After Close House Vote, supra note 158, at 1.
161. Id. at 19.
162. Elisabeth Bumiller, Bush Signs Trade Hill, Restoring Broad Presidential Authority, N.Y. TIMES, Aug. 6, 2002, at A5.
163. H.R. 3009, [sec] 2102(b)(11).
164. See, e.g., Jordan Trade Agreement Passes House; Senate Waits Until After Recess, INSIDE U.S. TRADE, Aug. 3, 2001, at 12.
165. Trade Act of 2002, H.R. 3009, 107th Cong. [sec] 2102(b)(6).
The principal negotiating objectives of the United States with respect to the use of money or other things of value to influence acts, decisions, or omissions of foreign governments or officials or to secure any improper advantage in a manner affecting trade are (A) to obtain high standards and appropriate domestic enforcement mechanisms applicable to persons from all countries participating in the applicable trade agreement that prohibit such attempts to influence acts, decisions, or omissions of foreign governments; and (B) to ensure that such standards do not place United States persons at a competitive disadvantage in international trade.
Id.
166. H.R. 3009, [sec] 2102(b)(8).
The principal negotiating objectives of the United States regarding the use of government regulation or other practices by foreign governments to provide a competitive advantage to their domestic producers, service providers, or investors and thereby reduce market access for United States goods, services, and investments are (A) to achieve increased transparency and opportunity for the participation of affected parties in the development of regulations; (B) to require that proposed regulations be based on sound science, cost-benefit analysis, risk assessment, or other objective evidence; (C) to establish consultative mechanisms among parties to trade agreements to promote increased transparency in developing guidelines, rules, regulations, and laws for government procurement and other regulatory regimes; and (D) to achieve the elimination of government measures such as price controls and reference pricing which deny full market access for United States products.
Id.
167. H.R. 3009, [sec] 2102(b)(5).
The principal negotiating objective of the United States with respect to transparency is to obtain wider and broader application of the principle of transparency through (A) increased and more timely public access to information regarding trade issues and the activities of international trade institutions; (B) increased openness at the WTO and other international trade fora by increasing public access to appropriate meetings, proceedings, and submissions, including with regard to dispute settlement and investment; and (C) increased and more timely public access to all notifications and supporting documentation submitted by parties to the WTO.
Id.
168. H.R. 3009, [sec] 2102(a) (8) (an overall negotiating objective of a fast track agreement is "to ensure that trade agreements afford small businesses equal access to international markets, equitable trade benefits, and expanded export market opportunities, and provide for the reduction or elimination of trade barriers that disproportionately impact small businesses"). See also H.R. 3009, [sec] 2112.
The Assistant United States Trade Representative for Industry and Telecommunications shall be responsible for ensuring that the interests of small business are considered in all trade negotiations in accordance with the objective described in section 2102(a)(8). It is the sense of the Congress that the small business functions should be reflected in the title of the Assistant United States Trade Representative assigned the responsibility for small business.
Id.
169. H.R. 3009, [sec]2102. The legislation includes the following objectives regarding investment disputes: (1) ensuring that U.S. investors in the United States are not accorded fewer rights than foreign investors in the United States (e.g., Mexican or Canadian parties with investments in the United States should not be able to recover damages for the expropriation or taking of assets that U.S. persons could not obtain); (2) seeking standards for "fair and equitable treatment" (a key phrase in investor-state dispute rules) consistent with U.S. legal principles and practice; (3) seeking mechanisms to deter and eliminate frivolous claims; (4) seeking to enhance opportunities for public input into the formulation of government positions in investor-state dispute settlement; and (5) providing for appellate review of these disputes. Id.
170. H.R. 3009, [sec] 2102(b)(14).
The principal negotiating objectives of the United States with respect to trade remedy laws are (A) to preserve the ability of the United States to enforce rigorously its trade laws, including the antidumping, countervailing duty, and safeguard laws, and avoid agreements that lessen the effectiveness of domestic and international disciplines on unfair trade, especially dumping and subsidies, or that lessen the effectiveness of domestic and international safeguard provisions, in order to ensure that United States workers, agricultural producers, and firms can compete fully on fair terms and enjoy the benefits of reciprocal trade concessions; and (B) to address and remedy market distortions that lead to dumping and subsidization, including overcapacity, cartelization, and market-access barriers.
Id.
171. Thus, the procedures described in supra section III.B will remain effectively unchanged under the Trade Act of 2002.
172. H.R. 3009, [sec] 2105(b)(1).
173. H.R. 3009, [sec] 2103(c).
174. H.R. 3009, [sec] 2105(c).
175. For a discussion of the various withdrawal mechanisms, see infra Part III.C.
176. H.R. 3009, [sec] 2105(a)(1).
177. H.R. 3009, [sec][sec] 2102(d) and 2104(a)(2)-(3). See infra Part III.A for a description of consultation provisions of earlier fast track laws.
178. H.R. 3009, [sec] 2107.
179. H.R. 3009, [sec] 2107.
180. H.R. 3009, [sec] 2104(d)(3)(A).
181. H.R. 3009, [sec] 2104(d)(3)(A).
182. H.R. 3009, [sec] 2104(d)(3)(C). This mechanism, though, is non-binding - i.e., it does not prevent the application of fast track procedures to a given agreement, including any provisions affecting U.S. trade remedies.
183. H.R. 3009, [sec] 2104(b)(2); H.R. 3009, [sec] 2104(b)(3); H.R. 3009, [sec] 2104(c).
184. Melissa Ann Miller, Will the Circle Be Unbroken? Chile's Accession to the NAFTA and the Fast Track Debate, 31 VAL. U. L. REV. 153, 156, 160 (1996). Miller justifies fast track based on the notion that
[t]he original framers of the United States Constitution created a unique democracy in which each of the three branches of government may fulfill its own responsibilities and duties, free from the influence and interference of the other branches. At the same time, however, the Constitution permits one branch to seek assistance from another branch in meeting its duties . . . . Fast track authority facilitated a greater cooperation between the Legislative and Executive Branches by allowing Congress to have more access and input into trade agreements, and by ensuring that the President would retain his credibility and status as the United States' primary representative in the eyes of other negotiating nations.
Id. See also, Chang S. Oh-Turkmani, et al., The Expanding International Trade Regime: New Challenges and Opportunities for Legal Practitioners, 13 AM. U. INT'L L. REV. 915 (1998) ("Fast track is necessary in a common law system because of the unique relationship between Congress and the Executive Branch. Fast track is meant to, in a sense, express the partnership existing between the Executive Branch (i.e., the U.S. Trade Representative who actually conducts the negotiation) and Congress.").
185. See, e.g., Andrew Moravcsik, AEI Conference: Trends in Global Governance: Do They Threaten American Sovereignty ? Article and Response: Conservative Idealism and International Institutions, 1 CHI. J. INT'L L. 291, 312-13 (2000).
There is, after all, a large literature on the 'decline of parliaments' in European domestic polities, most of which has nothing to do with European integration . . . . This suggests that the non-majoritarian character of EU decision-making is the result not so much of the particularities of transnational governance but of general functional imperatives unique to the issue-areas where the EU is active. In this regard, the EU performs much the same political function for European governments as a strong Executive and 'fast track' legislation has for the postwar United States - a function that could be argued to have a democratic result (i.e. one favorable to the median citizen) precisely because it is non-majoritarian.
Id.
186. See Stefan A. Riesenfeld & Frederick M. Abbott, Symposium on Parliamentary Participation in the Making and Operation of Treaties: Foreword, 67 CHI.-KENT. L. REV. 293 (1991) at 307 (noting that "[i]n each of Brazil, Germany, the Netherlands, Switzerland and the United States, the parliament generally is recognized to have the power to attach qualifications to its consent to ratification," but also noting that the U.S. Legislative Branch has qualified its consent more frequently than other countries), and at 310 ("In all other countries [except the Netherlands and France] represented in the symposium, the legislature may override a treaty for domestic purposes by enacting inconsistent legislation, and may thereby transform its self-executing character.").
187. See, e.g., Takao Kawakami, National Treaty Law and Practice: Japan, in NATIONAL TREATY LAW AND PRACTICE, STUDIES IN TRANSNATIONAL LEGALPOLICY (No. 30), at 107-18 (Monroe Leigh et al., eds., 1999) [hereinafter STUDIES IN TRANSNATIONAL LEGAL POLICY NO. 30] ; K. Thakore, National Treaty Law and Practice: India, in NATIONAL TREATY LAW AND PRACTICE, STUDIES IN TRANSNATIONAL LEGAL POLICY (No. 27), at 79-98 (Monroe Leigh & Merritt R. Blakeslee eds., 1995) [hereinafter STUDIES IN TRANSNATIONAL LEGALPOLICY No. 27].
188. See, e.g., Jeffrey Waincymer, Implementation of the World Trade Organization Agreement in Australia, in IMPLEMENTING THE URUGUAY ROUND 285, 294-99 (John J. Jackson & Alan O. Sykes eds., 1997); Lord Templeman, Treaty Making and the British Parliament, in PARLIAMENTARY PARTICIPATION IN THE MAKING AND OPERATION OF TREATIES:A COMPARATIVE STUDY 153, 154-73 (Stefan Riesenfeld & Frederic Abott eds., 1994).
189. See Greg N. Anderson, Achieving United States-Canada Reciprocity in Sub-National Government Procurement: Federalism and the Canada-United States Free Trade Agreement, 4 IND. INT'L. COMP. L. REV. 131 (1993); Hans D. Treviranus & Hubert Beemelmans, National Treaty Law and Practice: Federal Republic of Germany, in STUDIES IN TRANSNATIONAL LEGALPOLICY No. 27, supra note 187, at 43, 54-55.
190. See Luzius Wildhaber et al., National Treaty Law and Practice: Switzerland, in STUDIES IN TRANSNATIONAL LEGAL POLICY NO. 30, supra note 187, at 117, 143-46.
191. See I. MACLEOD ET AL., THE EXTERNAL RELATIONS OF THE EUROPEAN COMMUNITIES 83-97 (1996).
192. See Peter L.H. Van den Bossche, The European Union and The Uruguay Round Agreements, in IMPLEMENTING THE URUGUAY ROUND, supra note 188, at 23, 66-69.
193. Id, at 59-66.
194. See, e.g., Meinhard Hilf, Negotiating and Implementing the Uruguay Round: The Role of EC Member States - the Case of Germany, in IMPLEMENTING THE URUGUAY ROUND, supra note 188, at 121, 132-34.
195. In contrast, the United States concluded almost 300 trade agreements between 1993 and 2000 alone. See 2000 Trade Policy Agenda and 1999 Annual Report of the President of the United States on the Trade Agreements Program, available at http://www.ustr.gov, at 1 and Annex III.
196. The Trade Agreements Act of 1979, Pub. L. 96-39 (1979).
197. The U.S.-Israel Free Trade Area Implementation Act of 1985, Pub. L. 99-47 (1985). Congress had previously granted special fast track authority for this agreement in Title IV of the Trade and Tariff Act of 1984, which permitted the President to enter into an agreement eliminating substantially all duties and import restrictions on United States-Israel trade. See Koh, supra note 26, at 1211-12.
198. The U.S.-Canada Free Trade Agreement Implementation Act of 1988, Pub. L. 100-449 (1988). For a discussion of the debate over this agreement, see Harold Koh, Why The President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 yale L.J. 1255, 1292 (1988).
199. The North American Free Trade Agreement Implementation Act, Pub. L. 103-182 (1993). For a discussion of the battle over approval of the NAFTA, see DESTLER, AMERICAN TRADE POLITICS, supra note 24, at 222-28. See also C. O'Neal Taylor, Fast Track, Trade Policy, and Free Trade Agreements: Why the NAFTA Turned Into a Battle, 28 G.W. J. INT'L L. & ECON. 2 (1994).
200. The Uruguay Round Agreements Act, Pub. L. 1903-465 (1994). For a discussion of the congressional debate over these agreements, see destler, DESTLER, AMERICAN TRADE POLITICS, supra note 24, at 251-54.
201. See Table 3.
202. According to the 2002 National Trade Estimate Report on Foreign Trade Barriers, "U.S. goods exports [to China] in 2001 were $19.2 billion . . . Corresponding U.S. imports from China were $102.3 billion . . . China is currently the 9th largest export market for U.S. goods." OFFICE OF THE U.S. TRADE REPRESENTATIVE, 2002 National Trade Estimate Report on Foreign Trade Barriers 44, available at http://www.ustr.gov. In contrast, "U.S. goods exports to Israel totaled $7.5 billion in 2001 . . . U.S. imports from Israel were $12.0 billion in 2001." Id. at 198.
203. Normal Trade Relations for the People's Republic of China, Pub. L. No. 106-286, 114 Stat. 880 (2000). This law established permanent most-favored nation treatment for China, otherwise referred to as normal trade relations. That law also contained provisions allowing the President to take action (i.e., impose special "safeguard" tariffs) where an increase in Chinese imports injures or threatens to injure U.S. commerce and calling for special efforts to monitor China's implementation of its WTO obligations. These provisions, however, do not reflect concessions made to China as a result of U.S.-China negotiations concerning China's accession to WTO membership. Rather, they are measures intended to help ensure that the granting of permanent normal trade relations with China would not result in a surge of Chinese imports into the United States or unfulfilled commitments by China.
204. The Uruguay Round Agreements Implementation Act, for example, takes up an entire chapter of the United States Code. It is Chapter 22 of Volume 19 of the Code. It runs from 19 U.S.C. [sec] 3501 to [sec] 3624.
205. United States v. Curtiss-Wright Corp., 299 U.S. 304, 319-20 (1936).
206. Sole executive agreements may cover subjects within the President's constitutional authority and, if so limited, their constitutionality is not in doubt. See United States v. Belmont, 301 U.S. 324, 330-32 (1937); United States v. Pink, 315 U.S. 203, 229-30 (1942). To the extent the President's constitutional authority overlaps powers of Congress, he may make sole executive agreements on matters that Congress may regulate by legislation but has not.; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES (hereinafter restatement) [sec] 303, cmt. h (1986).
207. RESTATEMENT, supra note 206, [sec] 303, cmt. j.
208. The question of whether the President may enter into sole executive agreements that are inconsistent with preexisting acts of Congress has not been clearly decided, but such a practice has been called into doubt. RESTATEMENT, supra note 206, [sec] 303, cmts. h-j. See also United States v. Guy W. Capps, Inc., 20 F.2d 655 (4th Cir. 1953), aff'd on other grounds, 348 U.S. 348 U.S. 296 (1955) (invalidating an executive agreement that contradicted a congressional statute). In his landmark concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Jackson explained that the President's authority in foreign affairs is divided into three categories. Presidential authority is at its zenith where the President acts "pursuant to the express or implied authority of Congress." Id. at 635-37. In the second category - the "zone of twilight" - the President may act on his own authority where Congress is silent. Id. at 637. The third category marks the low point of Presidential foreign powers: when the President goes against the "will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Id.
209. NAFTA was approved in the House of Representatives by a vote of 234 to 200. 139 CONG. REC. H29,949. The vote in the Senate was 61 to 38. 139 CONG. REC. 831,040. Of the agreements approved through fast track procedures, four of the five - other than the NAFTA - saw approval of the relevant agreements by wide margins. Only NAFTA involved a close vole in the House of Representatives and an overall difficult approval battle.
210. As noted in note 206, supra, the prevailing view appears to be that congressional approval of an agreement is needed if that agreement would be inconsistent with a preexisting federal statute. Such approval also might be needed to the extent a proposed agreement includes items that the Constitution reserves exclusively for Congress, such as the power to appropriate funds. LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION (hereinafter foreign affairs) 159-60 (1972). U.S. CONST. art. I, [sec] 9, cl. 7 states that "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by law." Commentators and at least one court have suggested that this provision precludes appropriations made by way of an international agreement. See RESTATEMENT, supra note 206, [sec] 111, reporters' n.6; FOREIGHN AFFAIRS, supra, at 159; Carter v. Edwards, 580 F.2d 1055, 1058 (D.C. Cir. 1978), cert. denied, 436 U.S. 907 (1978). In the realm of international trade, the question of whether the President can modify tariffs on his own accord in an agreement is murkier, but the weight of authority seems to indicate that he cannot. See U.S. CONST. Art. I, [sec] 7, cl. 1 ("All Bills for Raising Revenue shall originate in the House of Representatives."); RESTATEMENT, supra note 206, [sec] 111, at 48.
211. RESTATEMENT, supra note 206, [sec] 111, cmt. d. The self-executing nature of treaties derives from the Supremacy Clause, which provides that "all Treaties made, or which shall be made, under Authority of the United States, shall be the supreme Law of the Land." U.S. CONST., Art. VI, [sec] 2. The Supremacy Clause was included in the Constitution because, as one scholar has explained, "[t]he repeated violation of treaties by the states was a prime concern of the Framers who gathered in Philadelphia to amend the Articles [of Confederation]." Carlos Manuel Vasquez, The Four Doctrines of Self-Executing Treaties, 89 AMER. J. INT'L LAW 659, 698 (1995).
212. FOREIGN AFFAIRS, supra note 210, at 132.
213. According to the Congressional Research Service,
In numerous cases, the Senate has approved treaties subject to conditions. The President has usually accepted the Senate conditions and completed the ratification process. In some cases, treaties have been approved with reservations that were unacceptable either to the President or the other party, and the treaties never entered into force . . . . In addition, the Senate sometimes formally rejects treaties but keeps them technically alive by adopting or entering a motion to reconsider. This has happened, for instance, with the Optional Protocol Concerning the Compulsory Settlement of Disputes in 1960, the Montreal Aviation Protocols Nos. 3 and 4 in 1983, and the Comprehensive Test Ban Treaty in 1999. More often, the Senate has simply not voted on treaties that did not have enough support for approval, and the treaties remained pending in the Foreign Relations Committee for long periods. Eventually, unapproved treaties have been replaced by other treaties, amended by protocols and then approved, or withdrawn by or returned to the President.
Treaties and Other International Agreements: The Role of the United States Senate, CRS No. 106-71 (2001) at 3. Another study indicates that the U.S. Senate is perhaps the most active legislative body with respect to the formal adoption of qualifications to treaties; between 1970 and 1987 the Senate included qualifications in its consent to the ratification of 33 of the 221 treaties (or 17.5 percent) it approved during that period. Stefan A. Riesenfeld & Frederick M. Abbott, The Scope of U.S. Senate Control Over the Conclusion and Operation of Treaties, 67 CHI.-KENT L. REV. 571, 574-78, 608-09 (1991).
214. CRS Report 106-71, supra note 213, at 3.
Only on rare occasions has the Senate formally rejected a treaty. The most famous example is the Versailles Treaty, which was defeated on March 19, 1920, although 49 senators voted in favor and 35 against. This was a majority but not the required two-thirds majority so the treaty failed. Since then, the Senate has definitively rejected only three treaties . . . . Thus the Senate has used its veto sparingly, but still demonstrated the necessity of its advice and consent and its power to block a treaty from entering into force.
Id.
215. U.S. CONST., Art. I, [sec] 7, cl. 1.
216. See EDWARD S. CORWIN, THE PRESIDENT'S CONTROL OF FOREIGN RELATIONS 98 (1917) (the Revenue Raising Clause is inapplicable to a treaty because "a treaty is not a 'bill' in any sense of the term; besides which, the Supreme Court has repeatedly recognized that treaty provisions may modify existing revenue laws") (cuing Bertram v. Robertson, 122 U.S. 11 (1889); Whitney v. Robertson, 124 U.S. 190 (1888)). But, at least one court has assumed in dictum that a treaty could not modify tariffs on its own; maintaining that implementing legislation would be needed. Carter v. Edwards, supra note 210.
217. See FOREIGN AFFAIRS, supra note 210, at 149 ("For political rather than constitutional reasons, Presidents and Senates have also accepted that trade and tariff agreements should generally be by executive agreement based on the authority of both houses of Congress rather than by treaty.").
218. Id.
219. Myres McDougal &Asher Lans, Treaties and Congressional-Executive or Presidential Agreements. Interchangeable Instruments of National Policy, 54 yale L.J. 181, 534 (1945); Ackerman & Golove, supra note 21.
220. Although the question has not been fully resolved by the courts, it appears that congressional-executive agreements may cover the same subject matter as a treaty. See FOREIGN AFFAIRS, supra note 210, at 175-76 ("[I]t is now widely accepted that the Congressional-Executive agreement is a complete alternative to a treaty: the President can seek approval of any agreement by joint resolution of both Houses of Congress instead of two-thirds of the Senate only . . . . [T]he constitutionality of the Congressional-Executive agreement is established, [and] it is used regularly at least for trade and postal agreements."). See also John H. Jackson, The General Agreement on Tariffs and Trade in United States Domestic Law, 66 MICH. L. REV. 250, 253 (1967) ("It is generally settled that under our Constitution international 'treaty' obligations can be established . . . by . . . an executive agreement of the President, acting under authority delegated by an act of Congress . . . .").
221. Because the Supremacy Clause of the Constitution places treaties on an equal footing with statutes, treaties may be immediately effective or "self-executing." RESTATEMENT, supra note 206, [sec] 111, at 42. A self-executing treaty requires no implementing legislation to render it immediately applicable in all federal and state courts. See, e.g., Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985); British Caledonian Airways v. Bond, 665 F.2d 1153, 1160 (D.C. Cir. 1981). Absent special agreement, it is ordinarily a question of domestic law whether U.S. treaty rights are self-executing or await implementation by legislation or executive or administrative action. restatement, supra note 206, [sec] 111, at 46. The intention of the United States in entering into a treaty determines whether is self-executing. Id.; Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1828); United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833). See also Vasquez, Four Doctrines, supra note 211, at 695 (quoting United States v. Postal, 589 F.2d 862 (5th Cir.), cert. denied, 444 U.S. 832 (1979)); United States v. Noriega, 808 F. Supp. 791, 797 (S.D. FLa. 1992). If the treaty is silent on this point and the intention of the United States is otherwise unclear, courts will look to a statement by the President in seeking the consent of the Senate or in ratifying the treaty as well as any expression by the Senate in approving it. RESTATEMENT, supra note 206, [sec] 111, at 46-7. In contrast, congressional-executive agreements are almost always non-self-executing under U.S. law because they generally require submission to Congress for subsequent approval and implementing legislation. FOREIGN AFFAIRS, supra note 210, at 163. Furthermore, it has been U.S. practice to make explicit that it is the implementing legislation rather than the congressional-executive agreement that controls and to deny challenges to existing law based on inconsistencies with such agreements. See, e.g., 19 U.S.C. [sec] 3512 (a) (1) (providing that "[n]o provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect"); 19 U.S.C. [sec] 3512(b) (2) (A) (providing that "[n]o State law, or the application of such a State law, may be declared invalid as to any person or circumstance on the ground that the provision or application is inconsistent with any of the Uruguay Round Agreements, except in an action brought by the United States for the purpose of declaring such law or application invalid"); 19 U.S.C. [sec] 3312(a) (1) (providing that "[n]o provision of the Agreement, nor the application of any such provision to any person or circumstance, which is inconsistent with any law of the United States shall have effect"); 19 U.S.C. [sec] 3312(b) (2) (providing that "[n]o State law, or the application thereof, may be declared invalid as to any person or circumstance on the ground that the provision or application is inconsistent with the Agreement, except in an action brought by the United States for the purpose of declaring such law or application invalid").
222. Although a non-self-executing treaty or agreement has no effect in domestic law, it nonetheless may be binding under international law. RESTATEMENT, supra note 206, [sec] 111, at 47.
223. For example, Congress approved the U.S.-Jordan Free Trade Agreement without resort to fast track procedures. see United States-Jordan Free Trade Area Implementation Act, Pub. L. 107-43, Sept. 29, 2001.
224. The Jordan Free Trade Agreement demonstrates that trade agreements can be approved and implemented by Congress without endless debate or amendments. It passed in both Houses of Congress by voice vote. Senate Passes U.S.-Jordan FTA After Gramm Drops Objections, INSIDE U.S. TRADE, Sept. 28, 2001.
225. See supra note 10 and accompanying text.
226. See supra note 153 and accompanying text.
227. See generally DESTLER, RENEWING FAST TRACK LEGISLATION, supra note 2.
228. See Table 1. See also Bipartisan Opposition Leads to 180-243 House Defeat of Fast Track, INSIDE U.S. TRADE, Sept. 28, 1998; Finance Aide Calls for Broad Debate in Wake of Fast track Collapse, INSIDE U.S. TRADE, Nov. 28, 1997 (chronicling effects of decision to withdraw fast track legislation on eve of vote).
229. See Pub. L. 103-49 (1993).
230. As noted above, President Bush made clear at the outset of his Administration that fast track is his top trade legislative priority. See supra note 3 and accompanying text.
231. See supra note 13 and accompanying text.
232. See Lenin Guerra, The Use of Fast Track Authority in the Negotiations of the Free Trade Area of the Americas, 8 KAN. J.L. & PUB. POL'Y 172, 174 (1999) (noting Congress's failure to renew fast track and arguing for renewal in connection with the proposed Free Trade Area of the Americas).
233. See notes 238 and 254 infra and accompanying text.
234. During the 2001-2002 debate, the authors of this article recommended that the Chairs of the Ways and Means and Finance Committees establish detailed schedules and topics for consultations, which would intensify during critical junctures. See Lael Brainard & Hal Shapiro, Fast Track Trade Promotion Authority: A Primer and Prescription for Progress, BROOKINGS INST. POL. BRIEF No. 91, 5 (2001).
235. During the NAFTA debate, Representative Byron Dorgan (D-ND) and Senator Ernest Hollings (D-SC) introduced two resolutions disapproving extension of fast track. H.R. Res. 101, 102d Cong., 1st Sess. (1991); S. Res. 78, 102d Cong., 1st Sess. (1991). To stave off this challenge, the chairmen of the two "gatekeeper" committees - Senate Finance Committee Chairman Lloyd Bentsen (D-TX) and House Ways and Means Committee chair Dan Rostenkowski (D-IL) - urged the President to submit an "action plan" that would address contentious issues such as the impact of the NAFTA on labor and the environment. Letter from Senator Lloyd Bentsen, Chairman, Committee on Finance, and Representative Dan Rostenkowski, Chairman, Committee on Ways and Means, to President Ceorge Bush (Mar. 7, 1991), reprinted in House Comm. on Ways & Means, 102d Cong., 1st Sess., Exchange of Letters on Issues Concerning the Negotiation of a North American Free Trade Agreement, 87 app. at 87-88 (Comm. Print 1991). The President complied with their requests and, consequently, the "gatekeeper" committees and the full Congress easily rejected the disapproval resolutions, allowing the NAFTA to proceed. H.R. Rep. No. 63, 102d Cong., 1st Sess., pt. 2, at 9 (1991); S. ReV No. 56, 102d Cong., 1st Sess. 6 (1991); 137 Cong. Rec. H3588; 137 Cong. Rec. S6829.
236. See 19 U.S.C. [sec] 2211(a)-(b) (specifying those members of Congress and congressional staff who may serve as congressional trade advisers, but failing to specify any duty on the part of these advisers to report to the leadership and to relevant committees).
237. Id. Past fast track laws and the 2002 Act have failed to provide a mechanism for advisors to obtain the sense of their chambers or the Congress as a whole on a given issue. Consultations between the advisors and the leadership, at minimum, are needed to provide the President with a meaningful understanding of how Congress views a particular issue. The notion of presenting the President with a sense of where the Congress stands is not unprecedented. During the debate over the NAFTA, the House passed the Gephardt-Rostenkowski resolution (H.R. Res. 146), which provided the "Sense of the House" regarding specific points supporters expected the President to follow in negotiating the NAFTA. 137 Cong. Rec. H12232. The resolution passed overwhelmingly, 329-85, giving the President a clear understanding of where most members of the House stood on issues addressed by the resolution. Id. Of course, a general sense of House support or opposition could be expressed less formally.
238. Senator Max Baucus (D-MT) proposed during the 2001-02 debate the establishment of a congressional trade office. See Baucus Bill Seeks Creation of Congressional Trade Office, INSIDE U.S. TRADE, Aug. 10, 2001 at 9. This did not become a part of the 2002 Trade Act; rather, the Act simply acknowledges a need for more staff support: "The grant of trade promotion authority under this title is likely to increase the activities of the primary committees of jurisdiction in the area of international trade. In addition, the creation of the Congressional Oversight Group under section 2107 will increase the participation of a broader number of Members of Congress in the formulation of United States trade policy and oversight of the international trade agenda for the United States. The primary committees of jurisdiction should have adequate staff to accommodate these increases in activities." H.R. 3009, [sec] 2109.
239. Id.
240. Id.
241. See id. [sec] 2102(d)(2)(a) (citing 19 U.S.C. [sec] 2211).
242. See id. [sec] 2107.
243. See Table 3.
244. See supra note 197.
245. See supra note 164.
246. Id.
247. See Senior U.S. Trade Official Predicts Possible New FTAs Next Year, INSIDE U.S. TRADE, Jan. 4, 2002 (discussing possible free trade agreements with Chile, Singapore, Central American countries, African countries, and Australia).
248. See supra notes 201-209 and accompanying text, discussing the need to change preexisting legislation and the complexities of dealing with multiple negotiating partners.
249. Since 1947, there have been eight rounds of multilateral negotiations, each of which took years to conclude. The last two, the Tokyo and Uruguay Rounds, lasted from 1973-79 and 1986-94, respectively. See, e.g., Some Facts and Figures, Stats for Seattle: 50 Years of GATT/WTO, available at http://www.wto.org. Outside of GATT/WTO rounds, the United States has entered into just four free trade agreements, three of which involved fast track (Canada, Israel, and NAFTA) and one (Jordan) did not.
250. Congress did so in 1994 with respect to the Uruguay Round Agreements. See supra note 1. Following the withdrawal of fast track legislation in 1997, proposals were made for fast track to apply to a defined set of issues. See Clinton to Press Fast Track Next Year But Lott Sees Slim Chances, INSIDE U.S. TRADE, Nov. 11, 1997 (Special Report) ("One possible alternative to the current bill would be a narrower legislation for agreements with Chile and on multilateral issues, along with tariff proclamation authority."); Gephardt Calls on Democrats to Back Limited Fast Track Deal, INSIDE U.S. TRADE, Feb. 28, 1997 ("House Minority Leader Richard Gephardt (D-MO) this week called on fellow Democrats to support his position that any extension of fast track negotiating authority granted to President Clinton should be limited in time and scope. The Congress should grant fast track authority that is limited for the length of Clinton's term, and limited to either reaching a bilateral agreement with Chile or amending the North American Free Trade Agreement so that it deals more effectively with labor and environmental issues.").
251. Under the "gatekeeper" committee disapproval procedure established under the 1984 Trade Act, a majority of the Senate Finance Committee threatened to disapprove the negotiation of a U.S.-Canada Free Trade Agreement, urging the President to withdraw his request for fast track treatment of any such agreement. See supra notes 85-88 and accompanying text. After significant presidential concessions, the Finance Committee subsequently deadlocked, permitting negotiations to proceed by the thinnest of margins. Koh, The Fast Track and United States Trade Policy, supra note 40, at 150.
252. In 1991, President Bush requested that fast track be extended for two more years. The debate over that extension request turned largely over NAFTA. See Taylor, Fast Track, Trade Policy, and Free Trade Agreements, supra note 199, at 36-54; and Carrier, All Aboard the Congressional Fast Track: From Trade to Beyond, supra note 19, at 712-13. Disapproval resolutions regarding the extension request were introduced in both the House and the Senate. On May 23, 1991, the House of Representatives defeated H.R. Res. 101 by a vote of 231-192. 137 Cong. Rec. H3588-89. On May 24, 1991, the Senate rejected S. Res. 78 by a margin of 59-36. 137 Cong. Rec. S6829.
253. See supra note 228 and accompanying text.
254. See supra note 160 and accompanying text.
255. See Koh, supra note 26, at 1203-04 (noting that inclusion of negotiating objectives is an important way for Congress to maintain control over how the President negotiates trade agreements).
256. See supra note 12 and accompanying text.
HAL SHAPIRO* AND LAEL BRAINARD** ***
* Hal Shapiro, former Senior Counselor to the Director and Senior Adviser for International Economic Affairs at the National Economic Council in the Clinton White House, and a partner at the law firm of Miller & Chevalier, is Assistant Professor of Law at the University of Baltimore Law School and Deputy Director of that School's Center for International and Comparative Law.
** Lael Brainard is the New Century Chair at the Brookings Institution. She served as Deputy Assistant to the President for International Economics and Deputy National Economic Adviser in the Clinton Administration.
*** We would like to thank Allison Driscoll for her excellent research assistance.
Copyright George Washington University, National Law Center 2003