Congressional and Executive Authority Over
September 1, 2023
Foreign Trade Agreements
Christopher T. Zirpoli
This report examines the constitutional powers of Congress and the President to make foreign
Legislative Attorney
trade agreements, the respective roles the legislative and executive branches have played in

recent trade agreements, and legal debates concerning the extent to which the executive branch
may enter into trade agreements without congressional approval.

The Constitution grants Congress the authority to regulate foreign commerce, impose tariffs, and collect revenue, while the
President holds constitutional authority to conduct foreign policy and negotiate with foreign governments. Courts have only
infrequently opined on the ways in which the United States may enter into foreign trade agreements based on this separation
of powers. Nevertheless, it is broadly accepted that the United States may enter into trade agreements with other countries via
“congressional-executive agreements,” which are negotiated by the President and approved—either in advance or
afterward—by Congress. By contrast, many have questioned whether the President may enter into trade agreements with
other countries via “sole executive agreements,” which are not approved by Congress and rest on the President’s inherent
constitutional powers. Presidents have, however, made various nonbinding trade commitments to other countries without
congressional authorization based on their authority to conduct foreign policy.
Recent years have seen a shift in the means by which the United States enters into trade agreements. Traditionally, Presidents
negotiated many trade agreements—including free trade agreements and other agreements affecting tariffs—as
congressional-executive agreements pursuant to trade promotion authority (TPA) legislation enacted by Congress. The last
TPA authorization expired in 2021, leaving this vehicle for congressional-executive agreements currently unavailable. At the
same time, scholars have noted an upswing in the President’s use of various trade agreements (sometimes called “mini-
deals”) that are not specifically approved by Congress. Some commentators have questioned whether such agreements should
be considered sole executive agreements, as it is not clear to what extent they are based on the President’s inherent
constitutional authority versus powers Congress has delegated or ceded to executive agencies. This report refers to these
agreements as “hybrid” trade agreements given their uncertain legal foundations.
Recent examples of hybrid trade agreements include agreements that have been or might be concluded as part of U.S.
negotiations with Japan, the U.S.-led Indo-Pacific Economic Framework for Prosperity (IPEF), and the U.S.-Taiwan
Initiative for 21st Century Trade. This report provides a legal overview of these agreements and initiatives, with a focus on
the extent to which they create binding international obligations, the respective roles played in these agreements by Congress
and the executive branch, and legal defenses and criticisms of the agreements.
Some Members of Congress have questioned whether hybrid trade agreements are constitutionally permissible and have
sought to reassert Congress’s role in the making of foreign trade agreements. This report evaluates some of the potential legal
bases for the executive branch to enter into hybrid trade agreements without congressional approval, including powers that
Congress has delegated to the U.S. Trade Representative (USTR) or to other executive agencies that may have authority to
implement certain trade agreements. By including an analysis of these executive agencies’ authorities, this report examines
not just the President’s constitutional powers with respect to trade agreement-making but also ways in which the wider
executive branch may claim authority to make trade agreements as a matter of administrative law. The report also considers
the extent to which possible congressional acquiescence may provide constitutional support for hybrid trade agreements.

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Introduction
The U.S. Constitution gives Congress the power to regulate foreign commerce1 and impose
tariffs,2 and it gives the President the power to enter into treaties with the advice and consent of
the Senate,3 but it does not address whether or how the United States may enter into foreign trade
agreements outside of the treaty process. Congress and the President have sometimes contested
their respective roles in trade agreement-making, but they have also sometimes reached
accommodations giving both the legislative and executive branches a substantial role.
Congress has periodically exercised its authority over foreign trade agreements via legislation
authorizing the President to negotiate certain trade agreements—particularly agreements affecting
tariffs—approving those agreements, and/or implementing those agreements via changes to U.S.
domestic law.4 In recent decades, however, the President and the U.S. Trade Representative
(USTR) have increasingly entered into various trade agreements that Congress has not
specifically authorized or approved.5 Under the Biden and Trump Administrations, for instance,
the United States has entered into several key trade agreements that were not submitted to
Congress for approval.6
This report begins by surveying the relevant powers the Constitution gives Congress and the
President as well as how those powers may (or may not) permit various forms of foreign trade
agreements.7 The report compares a prominent traditional model of U.S. trade agreements—free
trade agreements (FTAs) and tariff proclamations authorized by Congress—with an increasingly
used model of trade agreements that the President or USTR enters into without obtaining explicit
congressional authorization or approval.8 This report then provides a legal overview of selected
recent U.S. trade agreements and initiatives with Japan, Taiwan, and the broader Indo-Pacific
region that have prompted debate about the constitutionality of this new model.9 Finally, the
report considers various legal arguments about whether the executive branch may enter into
certain trade agreements without congressional approval, including arguments regarding the
authorities Congress has delegated to USTR, the executive branch’s power to implement certain
U.S. trade agreements without the need for implementing legislation, and possible congressional
acquiescence to the executive branch’s practice in this field.10

1 See U.S. CONST. art. I, § 8, cl. 3.
2 See U.S. CONST. art. I, § 8, cl. 1.
3 See U.S. CONST. art. II, § 2, cl. 2.
4 See, e.g., TPA-2015, infra note 48 (legislation giving President trade promotion authority); USMCA Implementation
Act, infra note 57 (legislation approving and implementing United States-Mexico-Canada Agreement).
5 See Claussen, infra note 41.
6 See, e.g., U.S.-Japan CMA, infra note 85 (2023 agreement regarding trade in critical minerals); U.S.-Japan Digital
Trade Agreement, infra note 101 (2019 agreement regarding digital trade).
7 See “Separation of Powers Regarding Foreign Trade,” infra.
8 See “Trends in Legal Bases for Foreign Trade Agreements,” infra.
9 See “Recent Hybrid Trade Agreement Practice,” infra.
10 See “Constitutionality of Hybrid Trade Agreements,” infra.
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Congressional and Executive Authority Over Foreign Trade Agreements

Separation of Powers Regarding Foreign Trade
Constitutional Framework
Congress and the President both claim broad constitutional powers that are relevant to foreign
trade agreements. The Constitution gives Congress the power to regulate foreign commerce and
to levy duties, or tariffs, on foreign imports.11 Article I, Section 8 of the Constitution gives
Congress the “Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United States.”12 It also gives
Congress power “[t]o regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes.”13 As with all of its express constitutional powers, Congress has the
accompanying authority to “make all Laws which shall be necessary and proper for carrying into
Execution” these powers.14
At the same time, the President has broad authority to conduct foreign policy and to negotiate on
behalf of the United States. First, the Constitution vests the President with the power to make
treaties with the advice and consent of two-thirds of the Senate.15 In addition, the Supreme Court
has held that the President has broad authority over foreign affairs that is not limited to
“affirmative grants of the Constitution”16 but also includes various powers that are inherent in his
role as head of a sovereign state.17 These inherent powers include “the power to make such
international agreements as do not constitute treaties” and “the power to speak or listen as a
representative of the nation,” including the power to negotiate on behalf of the United States.18
Thus, while the President’s foreign affairs powers do not find “any textual detail” in the
Constitution,19 the Court has explained that the President’s “executive power” includes the “vast
share of responsibility for the conduct of our foreign relations.”20 Nevertheless, the Court has
specified that the President “is not free from the ordinary controls and checks of Congress merely
because foreign affairs are at issue”21 and that Congress alone holds the legislative power over
both domestic and foreign matters.22

11 See United States v. Yoshida Int’l, Inc., 526 F.2d 560, 571 (C.C.P.A. 1975) (“The people of the new United States, in
adopting the Constitution, granted the power to ‘lay and collect duties’ and to ‘regulate commerce’ to the Congress, not
to the Executive.” (quoting U.S. CONST. art. I, § 8, cl. 1, 3)).
12 U.S. CONST. art. I, § 8, cl. 1; see Cong. Rsch. Serv., Overview of Taxing Clause, Constitution Annotated,
https://constitution.congress.gov/browse/essay/artI-S8-C1-1-1/ALDE_00013387/ (last visited Aug. 30, 2023).
13 U.S. CONST. art. I, § 8, cl. 3; see Cong. Rsch. Serv., Overview of Foreign Commerce Clause, Constitution Annotated,
https://constitution.congress.gov/browse/essay/artI-S8-C3-8-1/ALDE_00001057/ (last visited Aug. 30, 2023).
14 U.S. CONST. art. I, § 8, cl. 18; see Cong. Rsch. Serv., Overview of Necessary and Proper Clause, Constitution
Annotated, https://constitution.congress.gov/browse/essay/artI-S8-C18-1/ALDE_00001242/ (last visited Aug. 30,
2023).
15 U.S. CONST. art. II, § 2, cl. 2; see Cong. Rsch. Serv., Overview of President’s Treaty-Making Power, Constitution
Annotated, https://constitution.congress.gov/browse/essay/artII-S2-C2-1-1/ALDE_00012952/ (last visited Aug. 30,
2023).
16 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).
17 See id. at 318–19.
18 Id.
19 American Ins. Ass’n. v. Garamendi, 539 U.S. 396, 414 (2003).
20 Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–611 (1952) (Frankfurter, J., concurring)).
21 Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015).
22 See id.
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Executive Agreements
Agreements made by the President outside of the constitutionally prescribed treaty process are
known as executive agreements, and they comprise the majority of international agreements into
which the United States enters.23 The Supreme Court has recognized that such agreements can be
a constitutional alternative to treaties receiving the requisite advice-and-consent of the U.S.
Senate.24 However, the Constitution’s express grant of the foreign commerce and tariff powers to
Congress may constrain the President’s ability to conclude foreign trade agreements via some
kinds of executive agreements.
The President’s power to regulate foreign commerce via executive agreement may depend on
whether or not the agreement is approved by Congress. It is well established that Presidents may
enter into trade agreements via “congressional-executive agreements,”25 which Congress
approves via legislation enacted through the bicameral process either before or after the President
negotiates the agreements.26 For example, as discussed below, all U.S. FTAs—including the
North American Free Trade Agreement (NAFTA) and its successor, the U.S.-Mexico-Canada
Agreement (USMCA)—have been entered into via congressional-executive agreements, as was
the agreement establishing the World Trade Organization (WTO).27 While at least one lawsuit
argued that NAFTA was void under U.S. law because it was not ratified in the manner the
Constitution requires for treaties,28 a federal court of appeals dismissed this lawsuit, holding that
“what constitutes a ‘treaty’ requiring Senate ratification presents a nonjusticiable political
question.”29
Since the Constitution vests Congress with the power to regulate foreign commerce and impose
tariffs, it is doubtful that the President may enter into trade agreements via “sole executive
agreements,” which are not approved by Congress but rather are based on the President’s express
or inherent constitutional powers.30 Some Members of Congress have claimed that sole executive
agreements over foreign trade would be unconstitutional. For instance, a December 2022 letter
from some Members of the Senate Finance Committee to the President states that “attempts to
use sole executive agreements to bind the United States on broad matters of international trade
. . . interfere with congressional authority under the Constitution.”31

23 See CRS Report RL32528, International Law and Agreements: Their Effect upon U.S. Law, by Stephen P. Mulligan
(2023) [hereinafter International Law and Agreements]; STAFF OF S. COMM. ON THE FOREIGN RELATIONS, 106TH CONG.,
REP. ON TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE 38 (Comm.
Print 2001); CURTIS A. BRADLEY, INTERNATIONAL LAW IN THE U.S. LEGAL SYSTEM, 96 (2d ed. 2015).
24 See, e.g., Garamendi, 539 U.S. at 415 (“[O]ur cases have recognized that the President has authority to make
‘executive agreements’ with other countries, requiring no ratification by the Senate . . . this power having been
exercised since the early years of the Republic.”); United States v. Belmont, 301 U.S. 324, 330 (1937) (“[A]n
international compact . . . is not always a treaty which requires the participation of the Senate.”).
25 Harold Hongju Koh, Triptych’s End: A Better Framework to Evaluate 21st Century International Lawmaking, 126
YALE L.J. F. 338, 339 (2017) (“It was long ago settled that congressional-executive agreements should be treated as
instruments legally interchangeable with Article II treaties . . . .”).
26 See International Law and Agreements, supra note 23.
27 See Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (Dec. 8, 1994).
28 Made in the USA Found. v. United States, 242 F.3d 1300, 1302 (11th Cir. 2001).
29 Id. at 1302.
30 See, e.g., U.S. DEPARTMENT OF STATE, 11 FOREIGN AFFAIRS MANUAL (F.A.M.) § 732.2-2 (Sept. 25, 2006),
https://fam.state.gov/fam/11fam/11fam0720.html.
31 Letter from Members of the Senate Finance Committee to President Joseph R. Biden (Dec. 1, 2022),
https://www.finance.senate.gov/imo/media/doc/Letter%20to%20POTUS%20on%20IPEF%20Authority%20FINAL%2
012.1.22.pdf [hereinafter Senate Finance Letter].
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There is scant case law regarding the acceptability of sole executive agreements to regulate
foreign trade. In a 1953 decision, the U.S. Court of Appeals for the Fourth Circuit invalidated an
executive agreement intended to prevent the importation of foreign potatoes for domestic
consumption as part of an effort to maintain U.S. potato prices.32 The court reasoned that “the
power to regulate interstate and foreign commerce is not among the powers incident to the
presidential office, but is expressly vested by the Constitution in the Congress.”33 This reasoning
was arguably dicta, however, because the court held that the executive order did not comply with
a statutorily prescribed procedure for investigating economically harmful food imports.34 It is
uncertain whether the court would have invalided the executive agreement if Congress had not
already mandated a different procedure.35 In addition, some observers have criticized the Fourth
Circuit’s reasoning.36
Nonbinding Instruments
Even if the President lacks constitutional authority to enter into sole executive agreements
regarding foreign trade, he may have authority to enter into “nonbinding instruments” regarding
foreign trade without congressional authorization. A nonbinding instrument makes so-called
“political commitments” or “soft law pacts”37 to other countries but does not create legal rights or
obligations under international or domestic law.38 Although the Constitution does not expressly
give the President authority to make nonbinding instruments, some scholars argue that the
President’s power to negotiate and conduct diplomacy logically entails the power to make
nonbinding instruments.39 Similarly, some scholars have claimed that international agreements
that merely commit the United States to take some action that is already required under U.S.
domestic law should be treated, essentially, as nonbinding instruments that do not require
congressional approval.40
In the trade context, Presidents have entered into various nonbinding instruments that “form
cooperative or non-binding obligations” without congressional approval.41 Some case law
supports the constitutionality of these instruments. In 1974, for example, the U.S. Court of
Appeals for the District of Columbia declined to strike down certain “voluntary import restraint
undertakings” that the executive branch had negotiated with foreign steel producer associations.42

32 United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), aff’d on other grounds, 348 U.S. 296 (1955).
33 Id. at 659.
34 See id. at 658–59 (“There was no pretense of complying with the requirements of the statute.”).
35 See id. at 659–60 (“[W]hatever the power of the executive with respect to making executive trade agreements
regulating foreign commerce in the absence of action by Congress, it is clear that the executive may not through
entering into such an agreement avoid complying with a regulation prescribed by Congress.”).
36 See, e.g., L. HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 225 (2d ed. 1996).
37 See International Law and Agreements, supra note 23. As used in this report, the term commitment refers broadly
both to legally binding and nonbinding agreements or undertakings.
38 See International Law and Agreements, supra note 23; U.S. Department of State, Guidance on Non-Binding
Documents, https://2009-2017.state.gov/s/l/treaty/guidance/index.htm (last visited Jan. 12, 2023); Curtis Bradley et al.,
The Rise of Nonbinding International Agreements: An Empirical, Comparative, and Normative Analysis, 90 U. CHI. L.
REV. 9–10 (forthcoming 2023), https://perma.cc/5LAX-4LQG.
39 See University of California, Berkeley, School of Law, Podcast Transcript on Non-Binding Agreements (Nov. 10,
2021) (Jack Goldsmith arguing nonbinding agreements are “a function of the president’s diplomatic power”),
https://www.law.berkeley.edu/podcast-episode/non-binding-agreements/.
40 See Koh, supra note 25.
41 Kathleen Claussen, Trade’s Mini-Deals, 62 VA. J. INT’L L. 315, 329 (2022).
42 Consumers Union of U.S., Inc. v. Kissinger, 506 F.2d 136, 138 (D.C. Cir. 1974).
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These undertakings specified maximum quantities of imported steel but “d[id] not purport to be
enforceable.”43 Since the import restrictions were nonbinding, the court held that they were
lawful.44 By contrast, the court noted in dicta, Congress would have needed to “delegate
legislative power to the President” for him to impose enforceable quotas.45
Trends in Legal Bases for Foreign Trade Agreements
This section discusses trends regarding how the legal authorities undergirding U.S. trade
agreements may have shifted during the late 20th and early 21st centuries. During this period, the
United States entered into a number of trade agreements expressly authorized or approved by
Congress, thus fitting the traditional model of congressional-executive agreements described in
the preceding section. At the same time, the United States entered into an increasing number of
foreign trade agreements on various nontariff matters without express congressional
authorization.
Trade Promotion Authority: A Traditional Model
The United States has often entered into foreign trade agreements via congressional-executive
agreements.46 Many of these congressional-executive trade agreements concern tariffs and have
taken the form of either FTAs or presidential proclamations to reduce tariffs within limits
established by Congress. Congress at various times in the last 50 years granted the President trade
promotion authority (TPA), also known as “fast-track” trade authority, which established a
comprehensive framework providing for both FTAs and tariff-reducing proclamations.47 The most
recent TPA, known as TPA-2015,48 expired in July 1, 2021, leaving this framework for
congressional-executive trade agreements unavailable unless Congress chooses to reauthorize it.
Free Trade Agreements (FTAs)
FTAs, which substantially eliminate tariffs between two or more countries,49 proliferated in part
due to international rules established by the General Agreement on Tariffs and Trade (GATT) and
its successor body, the WTO. The GATT and WTO are largely intended to lower barriers to (or
“liberalize”) international trade, including via tariff reduction.50 GATT permits FTAs via a
provision allowing two or more countries to form a “free trade area” in which “duties and other
restrictive regulations of commerce [with some exceptions] are eliminated on substantially all the
trade between the constituent territories.”51 This allowance for free trade areas is an exception to

43 Id. at 138, 143.
44 Id. at 143–44.
45 Id. at 142.
46 See BRADLEY, supra note 23, at 79–80.
47 For background on TPA, see CRS Report RL33743, Trade Promotion Authority (TPA) and the Role of Congress in
Trade Policy, by Cathleen D. Cimino-Isaacs and Christopher A. Casey (2015); CRS In Focus IF10038, Trade
Promotion Authority (TPA), by Christopher A. Casey and Cathleen D. Cimino-Isaacs (2022).
48 See Bipartisan Congressional Trade Priorities and Accountability Act of 2015, Pub. L. No. 114-26, 129 Stat. 319
(codified at 19 U.S.C. §§ 4201–4210) [hereinafter TPA-2015].
49 See Claussen, supra note 41, at 325 n.27 (noting the term FTA is “typically reserved” for those agreements that
“bring substantially all tariffs on goods between two or more countries down to zero”).
50 See World Trade Org., What Is the World Trade Organization? (2023) (describing WTO as, in part, “an organization
for liberalizing trade”), https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact1_e.htm.
51 General Agreement on Tariffs and Trade, art. XXIV, Oct. 30, 1947, 61 Stat. pt. 5 U.N.T.S. 194.
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GATT’s “most-favoured nation” (MFN) rule, which generally prohibits member states from
extending preferential tariff reductions to some but not all member countries.52 FTAs thus became
the primary vehicle by which the United States and other WTO member countries extended
reciprocal preferential tariff treatment to one another.
Under TPA, Congress established rules committing both the House and Senate to approve or
reject implementing legislation for U.S. FTAs without amendment or filibuster, using expedited
procedures, if the executive branch adhered to certain requirements.53 The TPA framework
allowed Congress to set negotiating objectives for FTAs and established a process for Congress
simultaneously to give ex post approval for the agreement and to implement it into domestic law.
The United States used the TPA framework to negotiate, approve, and implement several bilateral
and regional FTAs. Between 1985 and 2020, the United States entered into 16 FTAs, including all
12 bilateral and both of the regional U.S. FTAs currently in force.54 Congress approved and
implemented all but one of these agreements via legislation passed under TPA.55 The sole
exception, the FTA between the United States and Jordan, was also approved and implemented
via legislation passed by Congress, although not under FTA’s fast-track procedures.56 Thus, all 16
of the FTAs the United States entered into have been congressional-executive agreements.57
Congress approved and implemented the most recent FTA, the USMCA, pursuant to the last
iteration of TPA, which expired shortly thereafter.58
It is well settled that the United States may enter into FTAs via congressional-executive
agreements, including under TPA.59 In addition to being supported by long-standing practice,60
congressional-executive FTAs find substantial support in the Constitution’s text, which gives
Congress—not only the Senate—power over foreign commerce, tariffs, and revenue. Further,
congressional-executive trade agreements might be seen as preferable to treaties to the extent that
a treaty might circumvent the authority of the House of Representatives with respect to foreign
commerce, tariffs, or revenue.61 Consistent with this view, some Members of Congress contend

52 See id., art. I.
53 See Trade Act of 1974, Pub. L. No. 93-618, title I, § 151, 88 Stat. 1978 (1975) (codified at 19 U.S.C. § 2191)
(establishing such fast-track procedures “as an exercise of the rulemaking power of the House of Representatives and
the Senate”); see also TPA-2015, supra note 48, § 103(b) (codified at 19 U.S.C. § 4202) (applying “trade authority
procedures from” Trade Act of 1974, 19 U.S.C. § 2191, to qualifying agreements under TPA-2015).
54 See CRS Report R45846, Major Votes on Free Trade Agreements and Trade Promotion Authority, by Keigh E.
Hammond (2023).
55 See id.
56 See id.; United States-Jordan Free Trade Area Implementation Act, Pub. L. No. 107-43, 115 Stat. 243 (2001)
(codified at 19 U.S.C. § 2112 note).
57 Sometimes Congress enacted legislation that simultaneously gave ex post approval to an FTA and implemented that
agreement into federal law. See, e.g., United States-Mexico-Canada Agreement Implementation Act, Pub. L. No. 116-
113, 134 Stat. 11 (2020) (codified in 19 U.S.C. §§ 4501–4732) [hereinafter USMCA Implementation Act].
58 See USMCA Implementation Act, supra note 57.
59 See Koh, supra note 25, at 340 (stating that debates around NAFTA established that “congressional-executive
agreements should be treated as instruments legally interchangeable with Article II treaties . . . particularly where
Congress is exercising its foreign commerce power.”).
60 Cf. Kathleen Claussen & Tim Meyer, The President’s (and USTR’s) Trade Agreement Authority: From Fisheries to
IPEF, INT’L ECON. L. & POLICY BLOG (July 18, 2022), https://ielp.worldtradelaw.net/2022/07/the-presidents-and-ustrs-
trade-agreement-authority-from-fisheries-to-ipef-.html (“[E]very presidential administration has likewise sought
congressional consent to enter into significant bilateral, plurilateral, or multilateral trade agreements since at least the
1970s”).
61 Cf. U.S. Department of Justice, Office of Legal Counsel, Memorandum Opinion for the U.S. Trade Representative,
Whether the Uruguay Round Agreements Required Ratification as a Treaty, 18 U.S. Op. Off. Legal Counsel 232 (Nov.
(continued...)
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that congressional-executive agreements are the only permissible form for FTAs.62 As a practical
matter, courts are unlikely to entertain claims that congressional-executive FTAs are an
unconstitutional alternative to treaties, as at least one appellate court has dismissed such a lawsuit
as presenting a “political question” to be decided by Congress and the President.63
Tariff Proclamation Authority
In addition to creating a procedure for Congress to give ex post approval to FTAs negotiated by
the President, TPA legislation has sometimes given the President limited ex ante authority to enter
into and implement agreements making certain limited adjustments to tariffs by proclamation.
TPA-2015, for example, authorized the President to enter into and implement trade agreements
with foreign countries to reduce “duties or other import restrictions” if the President determined
that they were “unduly burdening and restricting.”64 TPA-2015 permitted the President to reduce
such tariffs in effect as of June 29, 2015, by up to 50%, subject to certain limitations.65 TPA-2015
required that the President notify Congress of his “intention to enter into an agreement” under this
proclamation authority,66 but it did not require Congress to approve such agreements or tariff
reductions. The previous version of TPA, the Bipartisan Trade Promotion Authority Act of 2002,67
gave the President similar authority to enter into and implement limited tariff reduction
agreements without further congressional action.68
The most recent use of the President’s proclamation authority came in December 2020, when
President Trump entered into and implemented a trade agreement with the European Union to
reduce certain tariffs pursuant to his authority under TPA-2015.69 President Trump also invoked
this proclamation authority to enter into and implement the U.S.-Japan Trade Agreement in
2019.70 The President currently lacks such statutory proclamation authority following the
expiration of TPA-2015 in 2021.

22, 1994) (noting potential tension between the Constitution’s treaty and foreign commerce provisions),
https://www.justice.gov/media/631341/dl?inline#page=242.
62 See Senate Finance Letter, supra note 31 (“There is no question that comprehensive free trade agreements that
include reciprocal tariff reductions and dispute resolution mechanisms must be approved and implemented by
Congress.”).
63 See Made in the USA Found. v. United States, 242 F.3d 1300, 1302 (11th Cir. 2001) (dismissing action challenging
constitutionality of NAFTA on the basis that “what constitutes a ‘treaty’ requiring Senate ratification presents a
nonjusticiable political question”).
64 TPA-2015, supra note 48, §103(a) (codified at 19 U.S.C. § 4202(a)). See generally CRS In Focus IF11400,
Presidential Authority to Address Tariff Barriers in Trade Agreements, by Christopher A. Casey and Brandon J.
Murrill (2023).
65 19 U.S.C. § 4202(a)(1), (3).
66 19 U.S.C. § 4202(a)(2).
67 Trade Act of 2002, Pub. L. 107-210, 116 Stat. 933 (codified at 19 U.S.C. § 3801 et seq.).
68 19 U.S.C. § 3803(a).
69 See Press Release, Joint Statement of the United States and the European Union on a Tariff Agreement (Aug. 21,
2020), https://ustr.gov/about-us/policy-offices/press-office/press-releases/2020/august/joint-statement-united-states-
and-european-union-tariff-agreement.
70 See Proclamation No. 9974, 84 Fed. Reg. 72,187 (Dec. 26, 2019); U.S. Japan Trade Agreement Text (Oct. 7, 2019),
https://ustr.gov/countries-regions/japan-korea-apec/japan/us-japan-trade-agreement-negotiations/us-japan-trade-
agreement-text.
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Trade Agreements Not Approved by Congress: A Potential
New Model
While the expiration of TPA-2015 has made the prospects for future congressional-executive
trade agreements uncertain, recent scholarship has highlighted the degree to which presidents in
recent decades have entered into trade deals without specific congressional approval or
authorization. These trade deals have sometimes been referred to as “mini” or “skinny” trade
deals or “trade executive agreements,” as distinguished from more comprehensive agreements
such as FTAs.71 While these agreements do not alter tariff rates, they can create internationally
binding obligations, as discussed in this section.
This report refers to these agreements as “hybrid” trade agreements because they are difficult to
classify according to the traditional categories of congressional-executive and sole executive
agreements. Unlike congressional-executive agreements, they are entered into without specific ex
ante or ex post congressional approval. On the other hand, unlike sole executive agreements, they
are not necessarily based on the President’s inherent constitutional powers, but purport to rest at
least partly on powers Congress has delegated by statute to the executive branch. Thus, one
former State Department legal advisor claims that the United States enters into a “plethora” of
agreements that are not truly sole executive agreements (which are, he claims, “extremely
rare”).72 Similarly, one former USTR counsel argues that, although these agreements are not
approved by Congress, “they are not sole executive agreements”73 because they “do not rely
solely on executive authority in most instances” but rather “are typically negotiated pursuant to
delegated authority, even if stretching its limits.”74
Some commentators contend that hybrid trade agreements are assuming a larger role in U.S. trade
policy compared with traditional FTAs. According to one study, the use of these agreements has
increased over time, especially since the 1990s.75 These agreements have also expanded in scope
in recent years.76 Some reasons for these shifts may include political resistance to reauthorizing
TPA or approving new FTAs, as illustrated by the United States not entering into the proposed
Trans-Pacific Partnership (TPP);77 procedural challenges in obtaining congressional approval for
trade deals;78 and the ability of some hybrid trade agreements to be implemented domestically
without Congress having to pass new legislation. Hybrid trade agreements may also be able to
reduce nontariff barriers to trade, which the Biden Administration argues have assumed greater
relative importance given already-low tariff rates on many goods.79

71 Claussen, supra note 41, at 318, 320, 325.
72 Koh, supra note 25, at 341–42.
73 Claussen, supra note 41, at 325.
74 Id. at 325 n.28.
75 See generally id.
76 See id. at 345.
77 See David J. Lynch, Biden’s Course for U.S. on Trade Breaks with Clinton and Obama, WASH. POST, Aug. 27, 2023;
CRS In Focus IF12078, CPTPP: Overview and Issues for Congress, by Cathleen D. Cimino-Isaacs (2023).
78 Koh, supra note 25, at 340 (arguing that “the number of Senators needed to block consideration of such an agreement
has declined” due to use of the filibuster and other practices).
79 The White House, On-the-Record Press Call on the Launch of the Indo-Pacific Economic Framework (May 23,
2022), https://www.whitehouse.gov/briefing-room/press-briefings/2022/05/23/on-the-record-press-call-on-the-launch-
of-the-indo-pacific-economic-framework/ [hereinafter IPEF Press Call] (noting that “non-tariff barriers . . . can be . . .
more expensive than tariffs,” while the “average bound tariff MFN for the United States right now is 2.4 percent . . .
very low”).
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A possible advantage of hybrid trade agreements is that they may be able to address numerous
specific circumstances in U.S. trade relations that Congress cannot easily anticipate or address as
a practical matter.80 Some Members of Congress have taken a different view and criticized these
agreements as not falling within constitutionally permitted forms of treaties, congressional-
executive agreements, or sole executive agreements.81
Some commentators have criticized hybrid trade agreements for their seeming lack of
transparency. One study identified 1,225 such agreements and noted that some were not publicly
available or were otherwise hard to find.82 The extent to which the executive branch has used
these agreements has only recently been revealed through scholarly research and Freedom of
Information Act requests.83 Another criticism from some commentators is that the executive
branch often does not identify the source of its authority to enter into these agreements, with
some agreements apparently lacking or exceeding authority that Congress has delegated to the
executive branch.84 The final section of this report explores potential legal arguments for and
against the constitutionality of hybrid trade agreements.
Recent Hybrid Trade Agreement Practice
This section summarizes legal characteristics of selected recent and potential hybrid trade
agreements and congressional responses to those agreements. As discussed below, much of the
recent practice and debate regarding hybrid trade agreements has concerned the United States’
dealings with countries in the Indo-Pacific region, including Japan, Taiwan, and the United States’
partners in the Indo-Pacific Economic Framework for Prosperity (IPEF).
United States-Japan Trade Agreements
U.S.-Japan Critical Minerals Agreement
The United States and Japan entered into an agreement on “Strengthening Critical Minerals
Supply Chains” (CMA) on March 28, 2023.85 According to USTR, this agreement establishes
several commitments and “areas for joint cooperation” regarding critical minerals supply chains
for electric vehicle batteries.86
The CMA provides a useful point of comparison to the congressional-executive FTAs discussed
in the preceding section. USTR characterizes the CMA as “an agreement focusing on free trade in

80 See Claussen, supra note 41, at 357–58 (“Congress sweeps in broad strokes and cannot be expected to anticipate
every cross-border issue that may arise.”).
81 See Senate Finance Letter, supra note 31 (“There are only three constitutional mechanisms for binding the United
States to an international agreement: invocation of the Treaty Clause of the Constitution; a ‘congressional-executive
agreement,’ which requires approval of the majority of both houses of Congress; and a sole executive agreement
covering matters reserved by Article II of the Constitution to the President.”).
82 See Claussen, supra note 41, at 322.
83 See id. at 378–81; Oona A. Hathaway, Curtis A. Bradley, & Jack L. Goldsmith, The Failed Transparency Regime for
Executive Agreements: An Empirical and Normative Analysis, 134 HARV. L. REV. 629, 635 (2020).
84 Claussen, supra note 41, at 326 & n.36.
85 See Agreement Between the Government of the United States of America and the Government of Japan on
Strengthening Critical Minerals Supply Chains (Mar. 28, 2023), https://ustr.gov/sites/default/files/2023-
03/US%20Japan%20Critical%20Minerals%20Agreement%202023%2003%2028.pdf [hereinafter U.S.-Japan CMA];
CRS Insight IN12152, U.S.-Japan Critical Minerals Agreement, by Kyla H. Kitamura (2023).
86 Press Release, United States and Japan Sign Critical Minerals Agreement (Mar. 28, 2023), https://ustr.gov/about-
us/policy-offices/press-office/press-releases/2023/march/united-states-and-japan-sign-critical-minerals-agreement.
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critical minerals,” in contrast to what it calls “comprehensive” FTAs in force with 20 other
countries.87 Unlike previous U.S. FTAs, the CMA does not create a free trade area or otherwise
reduce import tariffs between the United States and Japan, it was negotiated and concluded after
the last TPA had expired, and it was not submitted to Congress for approval.88
The U.S. Department of the Treasury has proposed a rule89 under which it would consider the
CMA a “free trade agreement” under Section 30D of the Internal Revenue Code90 as amended by
P.L. 117-169, commonly referred to as the Inflation Reduction Act of 2022 (IRA).91 The IRA
conditions certain tax credits for electric vehicles on whether a requisite percentage of certain
“critical minerals” in the vehicle battery were “extracted or processed” either in the United States
or in a “country with which the United States has a free trade agreement in effect,” although it
does not define the term “free trade agreement.”92 Treasury’s proposed rule would make critical
minerals extracted or processed in Japan qualify toward this percentage,93 in addition to critical
minerals extracted or processed from the 20 countries with which the United States has a
“comprehensive” FTA that covers “substantially all trade in goods and services.”94
Potentially adding to doubts about whether the CMA should be considered an FTA, it is unclear
whether it is a binding agreement as opposed to a nonbinding instrument. Many provisions of the
agreement either confirm existing obligations or require the parties to “confer” or “cooperate,” as
opposed to making new, binding commitments.95 Although the agreement contains what appears
to be a binding commitment that the parties “maintain” their practice of not imposing export
duties on critical minerals, export duties are already prohibited by the U.S. Constitution.96
According to one view, commitments such as this, which merely confirm that the United States
will comply with the Constitution or other domestic law, are akin to nonbinding instruments and
do not require congressional approval.97 Thus, it is possible that the CMA does not commit the
United States to any legally binding international obligations that would require congressional
approval.
Opponents may argue that entering into the CMA without congressional approval undercuts
Congress’s authority to regulate foreign trade even if it is a nonbinding instrument. Insofar as the
Treasury Department determines the agreement is an FTA within the meaning of the IRA, the
agreement will have real legal consequences for IRA tax credit eligibility. Although the IRA does
not define FTAs, all prior FTAs have been congressional-executive agreements. By defining
FTAs to include instruments such as the CMA and entering into those instruments without

87 See Office of the U.S. Trade Representative, Free Trade Agreements (last visited Aug. 18, 2023).
88 Cf. id. (characterizing the Critical Minerals Agreement as “an agreement focusing on free trade in critical minerals,”
as opposed to “comprehensive free trade agreements” with other countries).
89 Section 30D New Clean Vehicle Credit, 88 Fed. Reg. 23370 (proposed Apr. 17, 2023).
90 26 U.S.C. § 30D.
91 Inflation Reduction Act of 2022, Pub. L. No. 117-169, 136 Stat. 1818.
92 Id. § 13401.
93 See Section 30D New Clean Vehicle Credit, 88 Fed. Reg. 23370 (proposed Apr. 17, 2023).
94 Id.
95 See U.S.-Japan CMA, supra note 85.
96 See U.S. CONST. art. I, § 9, cl. 5; Cong. Rsch. Serv., Export Clause and Taxes, Constitution Annotated,
https://constitution.congress.gov/browse/essay/artI-S9-C5-
1/ALDE_00013596/#:~:text=Article%20I%2C%20Section%209%2C%20Clause,Articles%20exported%20from%20an
y%20State (last visited Aug. 18, 2023).
97 See Koh, supra note 25, at 346 (“If the only international obligation that the Executive Branch assumes is to carry
out domestic legal obligations that already exist, there seems little reason why the new congressional approval should
be required . . . .”).
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congressional approval, the executive branch diminishes Congress’s role in determining which
countries may be considered FTA partners under the IRA. Some Members of Congress have
argued, along these lines, that “the Administration does not have the authority to unilaterally enter
into free trade agreements.”98
Some commentators note that the CMA may set a precedent for similar agreements with other
trading partners with which the United States does not yet have an FTA.99 For instance, the
United States has entered into negotiations that may lead to similar critical minerals agreements
with the European Union and the United Kingdom.100
U.S.-Japan Digital Trade Agreement
Another example of hybrid trade agreements is the U.S.-Japan Digital Trade Agreement, which
the United States entered into on October 7, 2019, without congressional approval.101 This
agreement contained bilateral commitments regarding several aspects of digital trade, including
customs duties and nondiscrimination, cross-border data flows and data localization, consumer
protection and privacy, source code and technology transfer, liability for interactive computer
services, cybersecurity, government data, and cryptography.102
The Trump Administration did not identify the source of its authority for the Digital Trade
Agreement, simply referring to it as an “executive agreement.”103 Some Members of the House of
Representatives requested that USTR identify “the authority the Administration is relying on to
enter” the agreement.104 Based on publicly available sources, it is unclear whether USTR
provided a formal response.

98 Press Release, Rep. Richard Neal, Ranking Member, House Ways and Means Committee, Statement on Biden
Administration’s Go-It-Alone Trade Action (Mar. 28, 2023), https://democrats-waysandmeans.house.gov/media-
center/press-releases/neal-wyden-statement-biden-administration-go-it-alone-trade-action. These Members further
criticize the agreement for lacking “enforceable environmental or labor protections” which could have been included
with greater congressional engagement.
99 Minwoo Kim, Jay Smith & Jamin Koo, Threading the Needle with the Narrow U.S.-Japan Critical Minerals
Agreement to Expand the Availability for EV Credits of the Inflation Reduction Act, GLOBAL POLICY WATCH (Apr. 12,
2023), https://www.globalpolicywatch.com/2023/04/threading-the-needle-with-the-narrow-u-s-japan-critical-minerals-
agreement-to-expand-the-availability-for-ev-credits-of-the-inflation-reduction-act/.
100 See Barbara Moens, Steven Overly & Sarah Aarup, U.S. Pumps the brakes on EU clean car deal, POLITICO, May 22,
2023; Press Release, White House, The Atlantic Declaration: A Framework for a Twenty-First Century U.S.-UK
Economic Partnership (June 8, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/08/the-
atlantic-declaration-a-framework-for-a-twenty-first-century-u-s-uk-economic-partnership; CRS Insight IN12145,
Critical Minerals: A U.S.-EU Free Trade Agreement?, by Shayerah I. Akhtar and Andres B. Schwarzenberg (2023).
101 See Agreement Between the United States of America and Japan Concerning Digital Trade (Oct. 7, 2019),
https://ustr.gov/sites/default/files/files/agreements/japan/Agreement_between_the_United_States_and_Japan_concernin
g_Digital_Trade.pdf [hereinafter U.S.-Japan Digital Trade Agreement].
102 See id.; see also CRS Report R46140, “Stage One” U.S.-Japan Trade Agreements, by Cathleen D. Cimino-Isaacs
and Anita Regmi (2019) (summarizing components of 2019 United States-Japan agreements).
103 Press Release, White House, Presidential Message to Congress Regarding the Notification of Initiation of United
States-Japan Trade Agreement (Sept. 16, 2019), https://trumpwhitehouse.archives.gov/briefings-
statements/presidential-message-congress-regarding-notification-initiation-united-states-japan-trade-agreement/. By
contrast, as noted above, the contemporaneous U.S.-Japan Trade Agreement purportedly rested on the President’s TPA
Section 103(a) authority to proclaim limited tariff reductions. See Proclamation No. 9974, 84 Fed. Reg. 72187 (Dec.
26, 2019).
104 Press Release, Rep. Bill Pascrell, Member, House Ways and Means Committee, Pascrell and Kildee Seek Answers
on Japan Trade Agreements (Nov. 27, 2019),
https://pascrell.house.gov/news/documentsingle.aspx?DocumentID=4085.
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Indo-Pacific Economic Framework for Prosperity (IPEF)
IPEF, an initiative officially launched in May 2022,105 presents another arena where the United
States could enter into one or more hybrid trade agreements. IPEF is not a trade agreement but
rather a negotiating framework that may result in multiple agreements, as the Biden
Administration has indicated that “different elements of [IPEF] could end up moving at different
speeds.”106
IPEF is divided into four issue areas, or “pillars,” comprising trade; supply chains; clean energy,
decarbonization, and infrastructure; and tax and anticorruption.107 USTR is leading efforts on the
trade pillar, while the Department of Commerce is leading the other three.108 The trade pillar
encompasses many issues falling under the headings of labor, environment, digital economy,
agriculture, transparency and good regulatory practices, competition policy, trade facilitation,
inclusivity, and technical assistance and economic cooperation.109 In May 2023, the Department
of Commerce announced the “substantial conclusion” of negotiations for the IPEF supply chain
pillar, the first agreement to result from IPEF.110
Some Biden Administration statements underscore the hybrid nature of trade agreements that may
result from IPEF. USTR has stated that IPEF is not a “traditional free trade agreement”111 and that
it will not involve tariff liberalization.112 Some statements indicate that IPEF may result in
binding, enforceable commitments,113 even though some items in the trade pillar instead describe
building on or implementing existing commitments—for example, “climate change solutions that
build on existing commitments,” “implementation of our respective obligations under multilateral
environmental agreements,” and “effective implementation of the WTO’s Agreement on Trade
Facilitation.”114 While the Administration has indicated a desire to consult with Congress,115 it has

105 See generally CRS In Focus IF12373, Indo-Pacific Economic Framework for Prosperity (IPEF), by Cathleen D.
Cimino-Isaacs, Kyla H. Kitamura, and Mark E. Manyin (2023). The other participating countries are Australia, Brunei
Darussalam, Fiji, India, Indonesia, Japan, the Republic of Korea, Malaysia, New Zealand, the Philippines, Singapore,
Thailand, and Vietnam.
106 IPEF Press Call, supra note 79.
107 Office of the U.S. Trade Representative, Indo-Pacific Framework for Economic Prosperity (IPEF),
https://ustr.gov/trade-agreements/agreements-under-negotiation/indo-pacific-economic-framework-prosperity-ipef (last
visited Sept. 1, 2023).
108 Press Release, U.S. Trade Representative, Ambassador Katherine Tai and Secretary of Commerce Gina Raimondo
Virtual Indo-Pacific Economic Framework Ministerial Readout (July 27, 2022), https://ustr.gov/about-us/policy-
offices/press-office/press-releases/2022/july/ambassador-katherine-tai-and-secretary-commerce-gina-raimondo-virtual-
indo-pacific-economic.
109 Ministerial Text for Trade Pillar of the Indo-Pacific Economic Framework for Prosperity,
https://ustr.gov/sites/default/files/2022-
09/IPEF%20Pillar%201%20Ministerial%20Text%20(Trade%20Pillar)_FOR%20PUBLIC%20RELEASE%20(1).pdf
(last visited Sept. 1, 2023) [hereinafter Ministerial Text for IPEF Trade Pillar].
110 Press Release, U.S. Department of Commerce, Press Statement on the Substantial Conclusion of IPEF Supply Chain
Agreement Negotiations (May 27, 2023), https://www.commerce.gov/news/press-releases/2023/05/press-statement-
substantial-conclusion-ipef-supply-chain-agreement.
111 Rozanna Latiff & Liz Lee, U.S. Says New Indo-Pacific Economic Framework Not Typical Trade Deal, REUTERS,
Nov. 18, 2021.
112 IPEF Press Call, supra note 79.
113 IPEF Press Call, supra note 79.
114 Ministerial Text for IPEF Trade Pillar, supra note 109.
115 Latiff & Lee, supra note 111.
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not committed to submit any IPEF agreements to Congress for approval.116 Some Members of
Congress contend that such agreements would require congressional approval, as they would
“regulate foreign commerce and reshape international trade flows.”117
U.S.-Taiwan Initiative on 21st Century Trade
In June 2022, USTR launched the U.S.-Taiwan Initiative on 21st Century Trade (the Taiwan
Initiative) to “advance mutual trade priorities based on shared values.”118 Like IPEF—of which
Taiwan is not a member—the Taiwan Initiative is not an agreement in and of itself but is
potentially a framework for multiple trade agreements covering different subject matters. At
launch, the parties described the Taiwan Initiative as a “roadmap” for “reaching agreements with
high-standard commitments.”119 The Taiwan Initiative includes a number of “trade areas.”120
Some of these areas overlap with those in the IPEF trade pillar, such as trade facilitation, good
regulatory practices, agriculture, digital trade, labor, and environment.121 Other Taiwan Initiative
trade areas include anticorruption, small and medium-sized enterprises (SMEs), standards, state-
owned enterprises, and nonmarket policies and practices.122
On June 1, 2023, the United States and Taiwan signed their first agreement under the Taiwan
Initiative (the First Taiwan Agreement).123 The First Taiwan Agreement includes chapters on
customs administration and trade facilitation, regulatory practices, services regulation,
anticorruption, and SMEs.124 The First Taiwan Agreement contains a mixture of binding and
nonbinding commitments on these subjects.125 Following the First Taiwan Agreement, the parties
stated they would commence negotiations on additional trade areas in the negotiation mandate.126
Although the executive branch did not submit the First Taiwan Agreement for congressional
approval, Congress responded to the agreement by enacting the United States-Taiwan Initiative
on 21st-Century Trade First Agreement Implementation Act (the Taiwan Agreement

116 IPEF Press Call, supra note 79 (“Let’s see where these negotiations take us, and let’s see where the discussions
go.”).
117 See Senate Finance Letter, supra note 31.
118 Press Release, U.S. Trade Representative, United States and Taiwan Announce the Launch of the U.S.-Taiwan
Initiative on 21st-Century Trade (June 1, 2022), https://ustr.gov/about-us/policy-offices/press-office/press-
releases/2022/june/united-states-and-taiwan-announce-launch-us-taiwan-initiative-21st-century-trade.
119 Id. Similarly, in August 2022, the parties released a Negotiating Mandate “to commence formal negotiations for the
purpose of reaching agreements with high-standard commitments.” U.S.-Taiwan Initiative on 21st Century Trade:
Negotiating Mandate, https://ustr.gov/sites/default/files/2022-08/US-Taiwan%20
Negotiating%20Mandate%20(Final).pdf (last visited Feb. 21, 2023) [hereinafter Negotiating Mandate].
120 Negotiating Mandate, supra note 119.
121 Id.
122 Id.
123 Agreement Between the American Institute in Taiwan and the Taipei Economic and Cultural Representative Office
in the United States Regarding Trade Between the United States of America and Taiwan (June 2023),
https://ustr.gov/sites/default/files/uploads/US-
Taiwan%20Initiative%20on%2021st%20Century%20Trade%20First%20Agreement%20-%20June%202023.pdf.
124 See id.
125 Compare, e.g., id. Art. 2.2 (providing that each party “shall” publish certain information online) with id. Art. 2.6.1.
(providing that the parties “are encouraged” to eliminate paper forms).
126 Press Release, U.S. Trade Representative, USTR Announcement Regarding U.S.-Taiwan Trade Initiative (May 18,
2023), https://ustr.gov/about-us/policy-offices/press-office/press-releases/2023/may/ustr-announcement-regarding-us-
taiwan-trade-initiative.
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Implementation Act).127 This legislation provided ex post approval for the First Taiwan
Agreement, effectively converting it into a congressional-executive agreement. The Taiwan
Agreement Implementation Act permits the First Taiwan Agreement to enter into force subject to
the President conducting certain consultations with Congress and making certain certifications,128
and it requires USTR to provide Congress with a report on the implementation of the agreement.
The act states that “[t]he President lacks the authority to enter into binding trade agreements
absent approval from Congress.”129
The Taiwan Agreement Implementation Act also asserts various forms of congressional control
over the process of making any further agreements with Taiwan relating to the Taiwan Initiative.
The act provides that any such further agreement may not take effect unless Congress enacts
legislation “expressly approving” the agreement and it is published on a publicly available
website at least 60 days before the President enters into it.130 The act also requires USTR to
provide texts of any such further agreement and accompanying briefings to certain congressional
committees according to specified timelines.131 The act provides time for those committees to
review any U.S. negotiating text before it is shared with Taiwan and allows certain Members of
Congress to request up to 15 additional days for that review.132 Finally, the act provides for certain
Members of Congress and their designees to be accredited as members of the U.S. delegation
negotiating any such further agreement with Taiwan.133
In signing the Taiwan Agreement Implementation Act into law, President Biden released a signing
statement claiming that the act’s requirements to provide negotiating texts to congressional
committees, not to transmit proposed texts to Taiwan during congressional review, and to include
Members of Congress in the U.S. negotiating delegation raised “constitutional concerns.”134 The
President stated that he would disregard these provisions in cases where they would
“impermissibly infringe upon [the President’s] constitutional authority to negotiate with a foreign
partner.”135 The President further stated that the act’s provision allowing certain Members of
Congress to increase the waiting period before negotiating texts could be shared with Taiwan
violated Supreme Court precedent regarding the separation of legislative and executive powers.136
The President did not, however, appear to dispute the act’s prohibition on entering into any
further Taiwan Initiative agreements without congressional approval.

127 United States-Taiwan Initiative on 21st-Century Trade First Agreement Implementation Act, Pub. L. No. 118-13,
137 Stat. 63 (2023).
128 Id. § 6(b)–(c).
129 Id. § 2(7).
130 Id. § 7(e).
131 See id. § 7(c).
132 See id.
133 See id. § 7(d) (referring to provisions of 19 U.S.C. § 4203(c)).
134 Press Release, White House, Statement from President Joe Biden on H.R. 4004, the United States-Taiwan Initiative
on 21st-Century Trade First Agreement Implementation Act (Aug. 7, 2023), https://www.whitehouse.gov/briefing-
room/statements-releases/2023/08/07/statement-from-president-joe-biden-on-h-r-4004-the-united-states-taiwan-
initiative-on-21st-century-trade-first-agreement-implementation-act/.
135 Id.
136 Id. (citing INS v. Chadha, 462 US 919 (1983) (holding that provision of immigration statute allowing one-house
veto of certain executive actions was unconstitutional)). On the other hand, Congress may argue that a statutory
provision allowing certain Members of Congress to increase the length of a required waiting period does not violate
Chadha. See Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102, 1110 (9th Cir. 1988) (holding that a
temporary stay provision that did not give a “legislative agent . . . control or ultimate authority in the disposition of a
particular issue” did not violate Chadha).
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The Taiwan Agreement Implementation Act provides that the First Taiwan Agreement “does not
constitute a free trade agreement for purposes of section 30D(e)(1)(A)(i)(II) of the Internal
Revenue Code.”137 The act thus prevents the Treasury Department from treating the agreement
similarly to the U.S.-Japan CMA for purposes of IRA electric vehicle tax credits, as discussed
above.138
Constitutionality of Hybrid Trade Agreements
As described in the preceding sections, the proliferation of hybrid trade agreements has sparked
debate about whether or not they are constitutional. Commentators, Members of Congress, and
executive branch officials have advanced various arguments for and against the legality of these
trade agreements. This section considers three arguments that proponents have advanced to
support the constitutionality of hybrid trade agreements: (1) trade authorities that Congress has
purportedly delegated to USTR; (2) existing laws that allow the executive branch to implement
certain trade agreements without the need for new legislation; and (3) possible congressional
acquiescence to these agreements.
Examination of these arguments may illuminate where hybrid trade agreements fall in the
tripartite Youngstown framework the Supreme Court has sometimes used to determine the scope
of executive power.139 Under this framework, presidential power is considered to be at its
broadest where “the President acts pursuant to an express or implied authorization of Congress”;
is less broad where there is neither “a congressional grant or denial of authority”; and is narrowest
where the President acts contrary to “the expressed or implied will of Congress.”140 The Court has
explained that executive action does not always fit neatly into one of these categories but rather
may fall along “a spectrum running from explicit congressional authorization to congressional
prohibition.”141
U.S. Trade Representative Authorities
USTR typically plays a leading role in negotiating U.S. trade agreements, in contrast to other
executive agreements, which are often negotiated by the State Department.142 The Biden
Administration has argued that Congress gave USTR the authority to enter into trade agreements
by enacting USTR’s organic statute, 19 U.S.C. § 2171 (Section 2171), and that, “[f]or at least the
last 30 years, USTR has negotiated and entered into numerous agreements pursuant solely to this
authority.”143 If Congress in fact authorized USTR to enter into hybrid trade agreements,
presidential power in this area might be at its maximum extent under the Youngstown framework.

137 Pub. L. No. 118-13, 137 Stat. 63, § 8(a)(2) (2023).
138 H.R. 4004, 118th Cong. (2023).
139 See Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635–638 (1952) (Jackson, J., concurring)).
140 Zivotofsky, 576 U.S. at 10 (quoting Youngstown, 343 U.S. at 635–37).
141 Dames & Moore v. Regan, 453 U.S. 654, 669 (1981).
142 Claussen, supra note 41, at 333–36.
143 United States Trade Representative Katherine Tai and Secretary of Commerce Gina M. Raimondo, Letter to
Chairman Ron Wyden, Committee on Finance, United States Senate (May 30, 2023),
https://insidetrade.com/sites/insidetrade.com/files/documents/2023/jun/wto2023_0452a.pdf; Biden Administration’s
2023 Trade Policy Agenda with United States Trade Representative, Ambassador Tai: Hearing Before the H. Comm.
on Ways and Means, 118th Cong. (2023) (USTR citing Section 2171 as authority to enter into U.S.-Japan CMA and
certain potential IPEF agreements in response to questions for the record), http://waysandmeans.house.gov/wp-
content/uploads/2023/07/FINAL-Website-Tai-Transcript.pdf.
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Section 2171(c)(1) states in part that USTR “shall . . . have primary responsibility for developing,
and for coordinating the implementation of, United States international trade policy.”144 It also
provides that USTR “shall . . . have lead responsibility for the conduct of, and shall be the chief
representative of the United States for, international trade negotiations, including all negotiations
on any matter considered under the auspices of the World Trade Organization.”145 This language
does not expressly give USTR authority to enter into trade agreements, prompting some
commentators to claim that “nothing about § 2171 gives the USTR the authority to enter into or
bring into force trade-related agreements.”146 USTR, however, appears to contend that Section
2171 implicitly gives it such authority.147
Separation of powers considerations may cut against interpreting Section 2171(c)(1) as implicitly
giving USTR authority to enter into trade agreements without congressional approval. In giving
USTR “responsibility” for “international trade policy” and “international trade negotiations,” the
statute may simply give USTR responsibility for powers already held by the President—namely,
the conduct of foreign policy and negotiations with foreign governments. In other words, Section
2171(c)(1) may be read simply as an administrative provision allocating responsibilities within
the executive branch.148 Thus, it is unclear whether a court would see the statute’s assignment of
these responsibilities to USTR as including an implicit authorization for USTR to enter into trade
agreements without congressional approval.
The legislative history and statutory context of Section 2171(c)(1) might provide additional
reason to doubt that the statute gives USTR authority to enter into trade agreements without
congressional approval. Section 2171 was first enacted by the Trade Act of 1974,149 and most of
its current language was enacted by the Omnibus Trade and Competitiveness Act of 1988.150 Both
of these acts also authorized (or reauthorized) TPA,151 which—as explained above—required

144 19 U.S.C. § 2171(c)(1)(A).
145 Id. § 2171(c)(1)(C).
146 Kathleen Claussen & Tim Meyer, The New U.S.-Taiwan Trade Agreement and Its Approval, INT’L ECON. L. &
POLICY BLOG (July 5, 2023), https://ielp.worldtradelaw.net/2023/07/the-new-us-taiwan-trade-agreement-and-its-
approval.html.
147 See Claussen & Meyer, supra note 60 (“Relying on this statute to justify USTR’s approach concedes that Congress
must consent, but rather than referring to Congress’s silence, proponents here point to the organic statute as an implicit
delegation not only to negotiate, but also to conclude agreements.”).
148 Other parts of the Trade Act of 1974 expressly limit the President’s authority to make changes to domestic law
without either new implementing legislation or existing statutory authority. See Pub. L. No. 93-618, title I, § 121, 88
Stat. 1978 (1975) (“If the President enters into a trade agreement which establishes rules or procedures . . . and if the
implementation of such agreement will change any provision of Federal law (including a material change in an
administrative rule), such agreement shall take effect with respect to the United States only if the appropriate
implementing legislation is enacted by the Congress unless implementation of such agreement is effected pursuant to
authority delegated by Congress.”).
149 See Pub. L. No. 93-618, title I, § 141, 88 Stat. 1978 (1975) (stating, inter alia, that USTR shall “be the chief
representative of the United States for each trade negotiation under this title”). The office of USTR—then called the
Special Representative for Trade Negotiations—was established earlier, in 1962. See Trade Expansion Act of 1962,
Pub. L. No. 87-794, § 271, 76 Stat. 872 (1962). The Trade Expansion Act of 1962 created USTR to replace the State
Department as “the lead agency for trade lawmaking in the United States.” Claussen, supra note 41, at 333.
150 See Pub. L. No. 100-418, title I, § 1601(a)(1) (1988) (amending Section 2171(c)(1) to state that USTR has “primary
responsibility for developing, and for coordinating the implementation of, United States international trade policy” and
that USTR shall “have lead responsibility for the conduct of, and shall be the chief representative of the United States
for, international trade negotiations”).
151 See Pub. L. No. 93-618, title I, §§ 101, 124 (presidential authority to enter into certain agreements and proclaim
implementing tariff reductions without congressional approval), §§ 102, 151–154 (provisions concerning TPA); CRS
Report R43491, Trade Promotion Authority (TPA): Frequently Asked Questions, by Cathleen D. Cimino-Isaacs,
(continued...)
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congressional approval to enter into any FTAs and gave the President limited ex ante authority to
proclaim tariff reductions. Thus, interpreting Section 2171(c)(1) to give USTR broad yet implicit
authority to enter into trade agreements without any congressional approval would appear to
conflict with the statutes’ other provisions and overall scheme, which strictly delineated the scope
of the President’s authority to enter into certain kinds of trade agreements with or without further
congressional action.
Certain constitutional doctrines might also caution against interpreting Section 2171(c)(1) as
implicitly giving USTR authority to enter into trade agreements.152 In recent years, the Supreme
Court has increasingly employed one such doctrine—the major questions doctrine—in refusing to
interpret statutes as implicitly granting agencies regulatory authority.153 Under this doctrine, the
Supreme Court has rejected agency claims of regulatory authority when (1) the underlying claim
of authority concerns an issue of “vast ‘economic and political significance,’” and (2) Congress
has not clearly empowered the agency with authority over the issue.154 Although this doctrine
more commonly arises in cases of domestic regulation, it might weigh against interpreting
Section 2171(c)(1) as giving USTR authority to enter into trade agreements since it does not
contain a clear statutory authorization to that effect.
A related doctrine, the so-called nondelegation doctrine, might also weigh against such an
interpretation of Section 2171(c)(1). Under this doctrine, Congress may not delegate its
legislative function to other branches of government.155 In practice, the nondelegation doctrine
typically requires that, when Congress authorizes federal agencies to carry out certain functions,
it must provide an “intelligible principle” to guide the executive branch’s implementation of those
functions.156 In the case of Section 2171(c)(1), construing the statute to give USTR the authority
to enter into foreign trade agreements might result in an unconstitutional delegation of Congress’s
foreign commerce power, since Section 2171(c)(1) does not appear to provide guidance as to how
or for what purpose USTR is supposed to exercise that authority.
On the other hand, the Supreme Court has more generously allowed Congress to delegate
authority to the President in the area of foreign affairs, reasoning that the President requires
broader latitude in this field: “[C]ongressional legislation . . . which is to be made effective
through negotiation and inquiry within the international field must often accord to the President a
degree of discretion and freedom from statutory restriction which would not be admissible were
domestic affairs alone involved.”157 It is unclear, however, whether statutes may give such wide
latitude to the executive branch where they would effectively delegate Congress’s foreign
commerce power to another branch of government.
For the time being, there does not appear to be any published case law discussing the scope of
USTR’s powers under Section 2171(c)(1). It is possible that courts would decline to adjudicate
the question of whether Section 2171 authorized USTR to enter into trade agreements without
congressional approval, as courts have sometimes declined to decide cases involving the

Christopher A. Casey, and Christopher M. Davis (2019) (“Trade promotion authority was first enacted on January 1,
1975, under the Trade Act of 1974.”).
152 Cf. Claussen & Meyer, supra note 60 (“Constitutional scholars may find that construing that language to permit
USTR to enter into trade agreements poses nondelegation doctrine or major questions doctrine problems.”).
153 See generally CRS In Focus IF12077, The Major Questions Doctrine, by Kate R. Bowers (2022).
154 Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014).
155 See generally CRS In Focus IF12292, Recurring Constitutional Issues in Federal Legislation, by Valerie C.
Brannon, Victoria L. Killion, and Sean M. Stiff (2022).
156 Gundy v. United States, 139 S. Ct. 2116, 2129 (2019).
157 U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 320–21 (1936).
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permissibility of international agreements on grounds that they present as a political question.158
On the other hand, courts might be willing to decide the scope of USTR’s powers under Section
2171(c)(1) on the basis that doing so would resolve a question of statutory interpretation and not
simply a constitutional debate.159
Existing Laws and Regulatory Authorities
Some trade agreements may place binding obligations on the United States but do not require
Congress to pass new legislation in order for the United States to fulfill those obligations. To the
extent existing laws enacted by Congress allow the executive branch to implement a trade
agreement without the need for new legislation, proponents argue that those existing laws may
provide some support for presidential power to enter into the agreement under the Youngstown
framework.160
One example of such trade agreements and the debate surrounding them is the Anti-
Counterfeiting Trade Agreement (ACTA), an agreement regarding enforcement of intellectual
property rights signed by the United States and other countries in October 2011.161 The Obama
Administration argued that the United States would be able to fulfill all of its obligations under
ACTA using existing U.S. copyright and trademark statutes.162 Since it was unnecessary for
Congress to pass legislation to implement ACTA, the Administration argued, the United States
could enter into the agreement without congressional approval.163 The Administration argued that
ACTA was consistent with “a long line” of “many” trade-related agreements that “required no
implementing legislation” and thus did not require congressional approval.164
Another variation on trade agreements that do not require implementing legislation are
agreements that commit the U.S. government to use existing rulemaking or regulatory authorities
that Congress has already established.165 Such hybrid trade agreements often serve a “problem
solving” function, addressing discrete issues involving specific products or industries.166 For
instance, in early 2023, the U.S. Alcohol and Tobacco Tax and Trade Bureau issued a labeling
rule to implement a 2020 agreement between the United States and Bolivia regarding certain
alcoholic beverages produced by each country.167 As another example, a 2013 agreement between
the United States and Japan requires the U.S. Department of Agriculture to take specified

158 See, e.g., Made in the USA Found. v. United States, 242 F.3d 1300, 1310–19 (11th Cir. 2001) (declining to decide
whether NAFTA was properly entered into via congressional-executive agreement rather than by treaty).
159 Cf. Japan Whaling Ass’n v. Am. Cetacean Soc.’y, 478 U.S. 221, 229–30 (1986) (holding that political question
doctrine did not prevent the Court from adjudicating a controversy requiring it to use “no more than the traditional rules
of statutory construction,” notwithstanding that the case involved an international agreement).
160 See Koh, supra note 25, at 345–49 (arguing that constitutionality of executive agreements under Youngstown
framework may hinge in part on the “degree of congressional approval”); cf. Dames & Moore v. Regan, 453 U.S. 654,
678 (1981) (upholding executive agreement that was not “directly authorize[d]” by Congress in part due to “general
tenor of Congress’s legislation in this area”).
161 Office of the U.S. Trade Representative, The Anti-Counterfeiting Trade Agreement, https://ustr.gov/acta (last visited
Aug. 18, 2023).
162 OFFICE OF THE LEGAL ADVISER, UNITED STATES DEPARTMENT OF STATE, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 95 (2012), https://2009-2017.state.gov/documents/organization/211955.pdf.
163 OFFICE OF THE LEGAL ADVISER, UNITED STATES DEPARTMENT OF STATE, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 110 (2011), https://2009-2017.state.gov/documents/organization/194113.pdf.
164 Id.
165 Claussen, supra note 41, at 330.
166 See id. at 354–57.
167 See Addition of Singani to the Standards of Identity for Distilled Spirits, 88 Fed. Reg. 9 (Jan. 13, 2023).
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measures if Japan gives notice of U.S. noncompliance with certain beef export requirements.168
Neither of these agreements was submitted to Congress for approval.
Some advocates of these hybrid trade agreements contend that congressional approval is
unnecessary if a previous congressional enactment has already given the President domestic
implementation authority and the agreement otherwise requires no changes to domestic law.169
Conversely, some Members of Congress have criticized this paradigm, arguing that it “confuses
the implementation of an agreement—which may not require congressional action because no
domestic laws need to be altered—and the ability to enter into a binding agreement with other
sovereign nations without congressional approval.”170 Thus, some Members have argued that,
because Article I of the Constitution commits power over foreign trade to Congress,
congressional approval of foreign trade agreements is necessary regardless of whether the
agreements require any new implementing legislation.171
One reason some Members have given for differentiating between the power to implement a
foreign trade agreement and the power to enter into such an agreement is that Congress should
have the power to shape the United States’ international obligations over foreign trade. In other
words, these Members believe that, even if Congress has already conferred regulatory authority
on an executive agency, Congress should retain the power to decide whether the United States
will commit itself to exercising that authority in a specific way as a matter of international law.
One Member, for example, noted that, under customary international law, an agreement such as
ACTA could create binding obligations to other countries even if it was entered into in a manner
inconsistent with domestic constitutional law (i.e., because it was not approved by Congress).172
Such a result could both usurp Congress’s ability to regulate foreign trade and place potential
future congressional enactments at odds with U.S. international obligations.173 On the other hand,
executive branch officials have argued that, in the event Congress later passes legislation
inconsistent with such trade agreements, the United States may be able to resolve such conflicts
by either withdrawing from or persuading other countries to amend the agreements.174
Congressional Acquiescence
The executive branch might argue that congressional acquiescence has made hybrid trade
agreements constitutionally permissible.175 When there is a “systematic, unbroken, executive

168 See Requirements for Beef and Beef Products to be Exported to Japan from the United States of America (Jan. 25,
2013),
https://ustr.gov/sites/default/files/Requirements%20for%20Beef%20and%20Beef%20Products%20to%20be%20Export
ed%20to%20Japan%20from%20the....pdf.
169 Koh, supra note 25, at 345–48; Daniel Bodansky & Peter Spiro, Executive Agreements, 49 VAND. J.
TRANSNAT’L L. 885, 927 (2016).
170 Senate Finance Letter, supra note 31; see also Letter from Sen. Ron Wyden to President Barack Obama (Oct. 12,
2011),
https://www.wyden.senate.gov/imo/media/doc/Wyden%20Letter%20to%20Obama%20ACTA%20Oct%202011.pdf
(claiming the argument “confuses the issue by conflating two separate stages . . . : entry and implementation”)
[hereinafter Wyden Letter].
171 Wyden Letter, supra note 170.
172 See id.
173 See id.
174 See OFFICE OF THE LEGAL ADVISER, UNITED STATES DEPARTMENT OF STATE, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 95 (2012), https://2009-2017.state.gov/documents/organization/211955.pdf.
175 Cf. Claussen, supra note 41, at 353 (“Speaking broadly, [trade executive agreements] operate in a zone of
congressional approval verging on congressional acquiescence.”).
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practice, long pursued to the knowledge of the Congress and never before questioned,” the
Supreme Court sometimes treats the historical practice as a “gloss” that informs the scope of
presidential power under the Youngstown framework.176 In Dames & Moore v. Regan, for
example, the Supreme Court upheld the constitutionality of an international agreement
terminating certain claims against the Iranian government based, in part, on long-standing
executive practice and congressional acquiescence.177 Nevertheless, the Court has held that
congressional acquiescence supports only those assertions of executive power that fall in the
second Youngstown category (where Congress has neither granted nor denied authority to the
executive), not the third (executive actions that are contrary to Congress’s express or implicit
prohibitions).178
Given the volume of hybrid trade agreements in existence today, the executive branch might
argue that Congress has implicitly acquiesced to these agreements as a “consistent executive
practice” that Congress “has essentially accepted.”179 On the other hand, the Supreme Court has
suggested that the Dames & Moore analysis regarding congressional acquiescence might be
relevant only to a “narrow set of circumstances” where presidential action is supported by a
“particularly longstanding practice” of congressional acquiescence.180 Hybrid trade deals are
largely a modern phenomenon and might not satisfy the “longstanding practice” standard.181
Relatedly, due to the lack of transparency surrounding hybrid trade agreements, Congress might
not know about many of these agreements and thus might not be in a position to acquiesce to
them.182 The disclosure requirements in the James M. Inhofe National Defense Authorization Act
for Fiscal Year 2023 (2023 NDAA),183 which takes effect in September this year, may give
Congress greater visibility into—and ability to influence—these agreements.184
Another potential response to the acquiescence argument is that Congress has not consistently
acquiesced to hybrid trade agreements. As discussed above, Congress recently enacted the Taiwan
Agreement Implementation Act, asserting that Congress has a constitutional role to approve or
disapprove trade agreements. Individual Members of Congress have also publicly registered their
criticism of these agreements.185 Further, by periodically enacting TPA legislation—most recently
in 2015—Congress maintained a high degree of control over FTAs and tariff proclamations,
potentially implying that Congress did not acquiesce to the conclusion of at least some other
kinds of trade agreements without its approval.186 Even if these actions did not expressly prohibit
hybrid trade agreements, such implicit disapproval could potentially place these trade agreements
in the third Youngstown category, where executive power is at its lowest ebb and alleged

176 See Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 610–611 (1952) (Jackson, J., concurring)).
177 453 U.S. 654, 686 (1981).
178 See Medellín v. Texas, 552 U.S. 491, 495 (2008).
179 Koh, supra note 25, at 343.
180 Medellín, 552 U.S. at 531–32.
181 For background on the role of congressional acquiescence, see Curtis A. Bradley & Trevor W. Morrison, Historical
Gloss and the Separation of Powers, 126 HARV. L. REV. 411 (2012).
182 See Claussen & Meyer, supra note 60.
183 2023 NDAA, § 5947 (to be codified at 1 U.S.C. §§ 112a–112b).
184 See International Law and Agreements, supra note 23.
185 See, e.g., Senate Finance Letter, supra note 31; Wyden Letter, supra note 170; H.R. 4004, 118th Cong. (2023).
186 See Claussen & Meyer, supra note 60 (“The acquiescence argument carries even less weight in the context of far-
reaching plurilateral or multilateral trade agreements: there are no examples of agreements of that sort coming into
force without congressional consent.”).
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congressional acquiescence might not support the practice in question.187 In any event, a court’s
view of the strength of a congressional acquiescence argument in favor of hybrid trade
agreements will likely continue to depend on the actions Congress decides to take or not to take.
Considerations for Congress
Congress has broad powers that allow it to assert greater control over foreign trade agreement-
making should it choose to do so. These powers include its authority to pass laws regulating
foreign commerce and tariffs as well as its appropriations and oversight powers.188 Some of the
specific tools that Congress could use to control or influence trade agreement-making include
laws delineating under what conditions the executive branch may enter into trade agreements and
when they must be submitted to Congress for approval, “report-and-wait” laws that require the
executive branch to submit proposed trade agreements to Congress before the agreement can take
effect, additional transparency requirements, and various oversight and accountability
mechanisms.189
The current lack of TPA authorization has arguably frustrated the pursuit of congressional-
executive trade agreements, foreclosing a potential alternative to hybrid trade agreements. Since
the expiration of TPA-2015 in 2021, some Members of Congress have introduced legislation that
would reauthorize some form of TPA. One such bill would have established fast-track authority
for plurilateral agreements among the United States and other WTO member countries;190 another
would have provided fast-track authority for congressional approval of a possible FTA with the
United Kingdom.191 Such legislation could channel trade agreement-making through procedures
over which Congress has greater control.
As another possibility, Congress could consider further legislation such as the Taiwan Agreement
Implementation Act, giving or withholding approval to agreements already entered into by the
executive branch and placing conditions on future agreements involving the same country or
subject matter. Congress could also consider passing legislation clarifying USTR’s authority with
respect to making foreign trade agreements or withholding funding for the implementation of
agreements that are not submitted for approval to Congress.192
Courts have sometimes declined to decide cases presenting political questions about the
constitutionality of international agreements,193 making it possible that at least some of the legal
and constitutional debates surveyed in this report may unfold in the political sphere rather than
being resolved by litigation. Nonetheless, Congress may use its powers to help shape the political
answers to such political questions.

187 See Medellín, 552 U.S. at 495.
188 See CRS Report R45442, Congress’s Authority to Influence and Control Executive Branch Agencies, by Todd
Garvey and Sean M. Stiff (2023).
189 See International Law and Agreements, supra note 23.
190 S. 446, 118th Cong. (2023); Portman, Coons bill would expand U.S. authority in plurilateral WTO talks, INSIDE
TRADE (March 1, 2022), https://insidetrade.com/daily-news/portman-coons-bill-would-expand-us-authority-
plurilateral-wto-talks.
191 S. 4450, 117th Cong. (2022).
192 See, e.g., Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L. No. 100-204, 101 Stat. 1331
§ 139 (1987).
193 See Made in the USA Found. v. United States, 242 F.3d 1300, 1302 (11th Cir. 2001).
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Author Information

Christopher T. Zirpoli

Legislative Attorney

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