January 13, 2014
Trade Promotion Authority (TPA)
What is TPA? Trade Promotion Authority (TPA),
previously “fast track,” is the time-limited authority that
Congress uses to set trade negotiating objectives, establish
consultation requirements, and to have implementing bills
for certain reciprocal trade agreements considered under
expedited procedures, provided certain statutory
requirements are followed (see Figure 1).
What is the current status? TPA expired as of July 1,
2007. On July 30, 2013, President Obama requested that
Congress reauthorize TPA. On January 9, 2014, legislation
to reauthorize TPA—the “Bipartisan Congressional Trade
Priorities Act of 2014—was introduced in the House (H.R.
3830) and the Senate (S.1900). Current negotiations on the
proposed Trans-Pacific Partnership (TPP), the Transatlantic
Trade and Investment Partnership (TTIP), the Trade in
Services (TISA), and the World Trade Organization (WTO)
Doha Round agreements may require TPA to pass
Why TPA? The President has the authority to negotiate
international agreements, including free trade agreements
(FTAs), but the Constitution gives the U.S. Congress sole
authority over the regulation of foreign commerce. For 150
years, Congress exercised this authority over foreign trade
by setting tariff rates directly. This policy changed with the
Reciprocal Trade Agreements Act of 1934, in which
Congress delegated authority to the President to enter into
reciprocal trade agreements that reduced tariffs within preapproved levels, and so did not require further
Congress has the Power to “...regulate commerce
with foreign nations...” and to “...lay and collect
taxes, duties, imposts, and excises...”
Article I, Section 8, U.S. Constitution
In the 1960s, nontariff barriers became part of trade
negotiations and Congress altered this delegated authority
to require an implementing bill to authorize changes in U.S.
law required to meet these new obligations. Pre-approval
was no longer an option, and given an implementing bill
faced potential amendment that could alter a longnegotiated agreement, Congress adopted fast track authority
in the Trade Act of 1974 to ensure that the implementing
bill would be given expedited legislative consideration.
The fast track authority was reauthorized four times. It was
renamed Trade Promotion Authority in the Trade Act of
2002, the most recent authorization.
Congress has sought to achieve four major goals in TPA:
(1) define trade policy priorities and to have them reflected
in trade agreement negotiating objectives; (2) ensure that
the executive branch adheres to these objectives by
requiring notification and consultation with Congress; (3)
define the terms, conditions, and procedures under which
the President may enter into trade agreements and under
which implementing bills may be approved; and (4)
reaffirm Congress’s constitutional authority over trade by
placing limitations on the use of TPA.
Supporting Views—Supporters argue that TPA is
necessary to ensure that U.S. negotiated trade agreements
are not amended by Congress, which could undermine the
credibility of U.S. trade negotiators and potentially unravel
a final agreement. They also argue that TPA should be
renewed now because of the four major trade negotiations
currently underway with the United States and to address
new issues not reflected in the 2002 authority.
Opposing Views—Opponents argue that with TPA,
Congress is relinquishing its constitutional authority over
trade by delegating it to the President. They also argue that
because trade agreements have become increasingly
comprehensive and may affect economic activities beyond
what is typically considered trade, the implementing
legislation should be subject to normal legislative
procedures, including full debate and amendments.
Key Elements of TPA
Trade Agreements Authority—First enacted in the Trade
Act of 1974, TPA historically has provided authority to the
President to enter into reciprocal trade agreements that
reduce tariff and nontariff barriers, provided an
“implementing bill” is introduced in which Congress
approves the agreement and authorizes changes in existing
law and/or new statutory authority “necessary or
appropriate” to implement it. The trade agreement enters
into force by presidential proclamation, subject to the
implementing bill being enacted into law.
Expedited Procedures—The implementing bill is subject
to: (1) mandatory introduction; (2) automatic discharge
from the relevant committees; (3) limited floor debate; and,
(4) an “up or down” vote, passing by simple majority.
Negotiating Objectives—Defined by Congress in TPA, the
executive branch is expected to honor and adhere to trade
negotiating objectives, if it expects to have the
implementing bill considered under expedited rules.
www.crs.gov | 7-5700
Trade Promotion Authority (TPA)
Notification and Consultation—TPA authority and the
expedited procedures are extended to the President subject
to certain notification requirements and consultations with
Congress on the status of negotiations.
Limitations to the TPA—Congress has adopted TPA on
pragmatic grounds to prevent trade implementing bills from
being delayed or obstructed by congressional procedures.
To assure retention of its constitutional authority, Congress
has included: time limits on use of the TPA; the option for
Congress to disapprove extension of TPA should either
House of Congress decide not to extend TPA; and the
option for Congress to withhold expedited consideration of
an implementing bill should Congress determine that there
was inadequate consultation and reporting to Congress.
Each House also retains the right to exercise its
constitutional rulemaking authority to change TPA rules.
Hearings and “Mock Markups”—In the past, Congress
has reviewed trade agreements prior to an implementing bill
being introduced. The House Ways and Means and Senate
Finance Committees typically hold hearings on the
proposed trade agreement. They also can hold “informal”
markups on a draft implementing bill, followed by a “mock
conference.” Although not defined in the TPA legislation,
these steps provide for public review of the proposed
agreement and allow the President to hear feedback and
concerns from Congress which are, nonetheless, nonbinding
on the Administration.
Scope of Negotiating Objectives—Over a decade has
passed since TPA was last renewed, so there is considerable
interest in Congress but also differing views on updating
negotiating objectives for “21st century” trade agreements.
Key issues may include intellectual property rights, stateowned enterprises, supply-chain trade flows, currency, and
labor and environmental commitments, among other issues.
Consultation and Notification—While, some Members of
Congress have been satisfied with the Administration
current consultation practices, others have expressed
dissatisfaction and may wish to consider revising certain
Technical Considerations—Given years of experience in
the use of TPA, some concerns have arisen over: (1) the
interpretation of “necessary or appropriate” language; (2)
the possible use of time limitation in the introduction of
trade agreement implementing legislation; and (3) the
treatment of text changes in trade agreements after
negotiations have closed.
For a more detailed look at TPA, see CRS Report RL33743,
Trade Promotion Authority (TPA) and the Role of Congress
in Trade Policy, by William H. Cooper.
William H. Cooper, firstname.lastname@example.org, 7-7749
Possible Issues for Congress
The Need and Timing of TPA—TPA legislation is widely,
but not universally, viewed as necessary for passage of
major reciprocal trade agreements. Currently, the Obama
Administration is proceeding as if such authority is in place,
including consulting with Congress on current negotiations.
It is not clear, however, that this will necessarily lead to an
easy consensus between the two parties and branches of
government on new TPA.
Figure 1. Congressional Requirements and Time Line Under TPA
www.crs.gov | 7-5700