Congressional Executive Agreement

The procedures, referred to as „trade authority procedures“ by the Bipartisan Trade Promotion Authority Act (BTPAA), initially applied to bills relating to agreements entered into before July 1, 2005, but could be extended to bills on agreements entered into before July 1, 2007, when the President requested an extension and neither member of Congress introduced a rejection resolution before July 1, 2005. The Commission adopted Mr 2005`s report. P.L. 107-210, §2103(c), as amended, 19 U.S.C. §3803(c). No such resolution was put to the vote. The President`s power to negotiate and enter into agreements that address both tariffs and non-tariff barriers is set forth in Section 2103(b) of the Act, 19 U.S.C§ 3803(b). The BTPAA asked the President to inform Congress at least 90 days before an agreement was reached. Foreign affairs have been expressly excluded from the Administrative Procedures Act. As a result, there is no notification and commentary procedure for the establishment of ex ante agreements between Congress and the executive. There is also no legal judicial review to ensure that the executive remains within the legal delegations. And the current reporting system (including the aforementioned TIAS) is insufficient in a number of dimensions, as we have explained three in previous writings. Among other things, the report is incomplete and often imperative, it balances the treaties and the executive agreements of Article II and makes no distinction between the different types of executive agreements and does not report to the public on the legal authority that claims to support such agreements.

In 1973, the House of Representatives passed a law authorizing the president to negotiate collective and non-tariff agreements (NTBs) for a specified period of time. Once the agreements were concluded, the President would submit them to Congress, along with any necessary draft implementing regulations and proclamations. Agreements, injunctions and proclamations would become law (thus replacing inconsistent previous statutes), unless neither House had adopted a decision of disapproval within 90 days, with the majority of those present and voters. See H.Rept. 93-571, 6, 23-34, 41-42. The Senate, whose veto approach was deemed dubiously constitutional by the Finance Committee, imposed itself when adopting the current requirement for the legislative power of NTB agreements by two houses of representatives and adopting implementing laws on an accelerated basis. See S.Rept. 93-1298, 14-15, 22, 76, 107. Objections to the veto procedure of a house had also been raised earlier in differing opinions in the Assembly`s report. H.Rept. 93-571, at 199.

The Supreme Court eventually declared legislative vetoes in the Immigration and Naturalization Service v. Chadha, 462 U.P. 919 (1983). . . .