Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties

Trade agreements such as the NAFTA and the GATT Uruguay Round agreements have been approved by majority vote of each House of Congress rather than by twothirds vote of the Senate - that is, they have been treated as congressional-executive agreements rather than as treaties. The congressional-executive agreement has been the vehicle for implementing Congress' long-standing policy of seeking trade benefits for the United States through reciprocal trade negotiations. In a succession of statutes, Congress has authorized the President to negotiate and enter into tariff and nontariff barrier (NTB) agreements for limited periods, while mandating that NTB and free trade area agreements negotiated under this authority could enter into force for the United States only if approved by both Houses in a bill enacted into public law and other statutory conditions were met. The President was again granted temporary trade agreement negotiating authority utilizing this approval procedure in the Trade Act of 2002 (P.L. 107-210). In February 2001, a U.S. circuit court dismissed an appeal challenging the constitutionality of the NAFTA because it was not entered into as a treaty, the court ruling that the issue was a nonjusticiable political question (Made in the USA Foundation v. United States, 242 F.3d 1300 (11th Cir. 2001)); the U.S. Supreme Court has denied review in the case.


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