Trade Promotion Authority (TPA)

Trade Promotion Authority (TPA)

Updated February 20, 2024
Trade Promotion Authority (TPA)
The U.S. Constitution empowers Congress to impose tariffs
• ensure that the executive branch advances these
and regulate trade with foreign nations. Periodically,
objectives through various notification and consultation
Congress has legislated authorities and procedures to signal
requirements with Congress;
to trading partners that trade agreements negotiated by the
• define the terms, conditions, and procedures under
President will be implemented or voted upon. Commonly
which the President may enter into trade agreements and
known as Trade Promotion Authority (TPA), these statutes
determine which implementing bills may be approved
usually empower the President to negotiate agreements and
under expedited authority; and
adjust tariff rates. Since the 1970s, they have also included
• reaffirm the constitutional authority of Congress over
expedited congressional procedures to consider legislation
trade policy by placing limitations on the use of TPA.
necessary to implement agreements that involve both tariff
Key Elements of TPA
and nontariff barriers, provided the President meets certain
Proclamation Authority on Tariffs. TPA has maintained
negotiating objectives as well as notification/consultation
RTAA authority (e.g., Section 103(a) of TPA-2015) for the
requirements (Figure 1). Historically, it has been common
President to negotiate agreements addressing tariff barriers
practice, though not formally required, to have the President
and proclaim changes to U.S. tariffs within specified limits
request that Congress reauthorize TPA. Ongoing or future
without further congressional action. For more information,
trade negotiations have often prompted such requests.
see CRS In Focus IF11400.
The most recent TPA was enacted in 2015 (TPA-2015, P.L.
Trade Agreements Authority. TPA provides authority to
114-26) and expired in July 2021. Congress has
the President to negotiate agreements addressing both tariff
implemented the majority of U.S. free trade agreements
and nontariff barriers. However, an agreement that requires
(FTAs) under TPA statutes. Most recently, Congress used
changes to U.S. law would require congressional action to
TPA-2015 to approve and implement the U.S.-Mexico-
implement the agreement.
Canada Agreement (USMCA), which entered into force in
2020 and replaced the North American Free Trade
Expedited Procedures. An implementing bill is subject to
Agreement (NAFTA). The Biden Administration has not
mandatory introduction; automatic discharge from the
asked Congress for a new TPA to date. Such a request
committees of jurisdiction; time-limited floor debate; and
could spur renewed debate in Congress over whether past
an “up or down” simple majority vote with no amendments.
trade negotiating objectives, consultation requirements, and
legislative processes reflect changing congressional
Negotiating Objectives. Expedited procedures are only
priorities and the evolving global trade environment.
available for agreements that “make progress” in achieving
U.S. objectives as defined under TPA.
Rationale and Background
Until the early twentieth century, tariffs were the primary
Notification, Consultation, and Reporting. Expedited
source of revenue for the federal government and Congress
procedures are available only when the President fulfills
spent a significant amount of time setting tariff rates. This
certain notification, reporting, and consultation
pattern changed with the Reciprocal Trade Agreements Act
requirements before, during, and after negotiations.
(RTAA) of 1934. To promote U.S. exports during the Great
Limitations to TPA. Congress adopted TPA on pragmatic
Depression and to signal to potential trading partners that
grounds to ensure that Congress votes in a timely way on
the United States would implement agreements as
the specific text of the agreement negotiated by the
negotiated, Congress delegated authority to the President to
President. To guard its constitutional prerogatives,
negotiate trade agreements addressing tariff barriers and
Congress has included a number of limits on TPA,
proclaim changes to U.S. tariffs within specified limits
including: time limits on use of TPA; the option for
without further congressional action.
Congress to disapprove an extension of those limits; and
By the 1960s, nontariff barriers (e.g., health standards,
two separate mechanisms to deny expedited consideration
custom procedures) increasingly became the central topic of
of an implementing bill for inadequate consultation or
trade negotiations. Rather than authorize the President to
progress towards achieving negotiating objectives. Each
proclaim nontariff-related changes to U.S. law, Congress
Chamber also retains the right to exercise its constitutional
enacted the first modern TPA in the Trade Act of 1974,
rulemaking authority to change TPA rules.
which established “fast track” procedures to implement any
Hearings and “Mock Markups.” Congress has reviewed
necessary changes to U.S. law negotiated as part of a trade
FTAs prior to the introduction of an implementing bill. The
agreement. In creating TPA, Congress sought to
committees of jurisdiction typically hold hearings on the
• define trade agreement policy priorities by specifying
proposed agreement. They often hold informal “mock”
U.S. negotiating objectives;
markups on a draft implementing bill. Mock markups
provide for public review of the deal and allow the
President to receive nonbinding feedback from Congress.
https://crsreports.congress.gov

Trade Promotion Authority (TPA)
Stakeholder Views
the balance of authority between the legislative and
Supporters of TPA argue that it is necessary to ensure that
executive branches. Key issues may include
Congress does not amend the terms of FTAs negotiated by
• Types of Agreements. Congress may seek to influence
the Administration. In this view, amending such terms
the size and scope of future trade agreements under
could undermine U.S. negotiating credibility and potentially
TPA, or direct the President to pursue certain
unravel a final agreement. Yet, Congress has directed the
negotiations under TPA-like authorities. It also may
Administration to renegotiate certain chapters in USMCA
scrutinize presidential negotiation of trade-related
and previous FTAs prior to consideration. Given the ability
agreements that do not require changes to U.S. law and
of each chamber to make—and change—its rules at any
may choose to pass legislation retroactively addressing
time, it is not clear that a statutory process could guarantee
such agreements on an ad hoc or country-specific basis.
an FTA’s consideration, but to date, Congress has
For example, in response to the first agreement reached
ultimately approved every agreement submitted under TPA.
under the U.S.-Taiwan Trade Initiative for the 21st
Some observers argue that trade agreements have become
Century, Congress enacted P.L. 118-13, which provided
increasingly comprehensive and complex, going beyond the
congressional ex-post approval of the agreement, among
types of economic activity that U.S. trade policy historically
other provisions.
has covered. They argue implementing legislation should be
• Negotiating Objectives. Congress may examine
subject to normal legislative procedures, including full
whether and how to revise U.S. trade negotiating
debate. Historically, U.S. negotiators, sometimes at the
objectives and priorities, based on the language of recent
behest of Congress, have avoided substantive U.S. policy
FTAs like USMCA and on emerging issues such as
changes and have instead encouraged partners to adopt U.S.
digital trade barriers; state-led subsidies; and labor and
standards. Some maintain, nevertheless, that enshrining
environmental issues, including climate change.
current U.S. policy in trade agreements may make those
• Consultation and Notification. USMCA underwent
policies harder to change in the future.
substantive revisions after the original release of its text.
Congress did not receive the new text prior to
TPA’s expiration renewed debate over the role of Congress
introduction and did not hold a mock markup. Congress
in new trade initiatives. Any trade agreement that Congress
may seek to clarify what circumstances might require
does not implement through legislation would necessarily
the resubmission of a new text and the applicable
be limited in scope. For example, the 2020 U.S.-Japan
notification period. Congress may also debate
Digital Trade Agreement was implemented as an executive
institutionalizing the “mock markup” practice in TPA.
agreement and did not require statutory changes. The Biden
After IPEF’s launch, many Members expressed
Administration has not pursued any comprehensive FTAs
concerns over lack of consultation with Congress and
to date. Its trade initiatives, such as the Indo-Pacific
the need for a greater congressional role. P.L. 118-13
Economic Framework for Prosperity (IPEF), are to take the
specified some consultation requirements that go
form of executive agreements, which has raised concerns
beyond analogous provisions in past TPA legislation.
over the input and role of Congress, and prompted some
•
Members of the Senate Finance Committee to assert that
Implementing Legislation. Concerns have also arisen
Congress must still approve the final agreements.
over the interpretation of “strictly necessary or
appropriate”
Issues for Congress
changes to U.S. law to describe the scope
of implementing legislation; the imposition of possible
While historically Congress often acts upon a request from
deadlines for submitting an implementing bill once an
the President for TPA, Congress is not required to do so.
FTA is signed; or whether implementing legislation may
Congress may consider TPA renewal, and the continuing
be introduced in a subsequent Congress.
rationale for TPA, as well as whether new trade initiatives
For more information, see CRS Report R43491, Trade
align with congressional goals, particularly with respect to
Promotion Authority (TPA): Frequently Asked Questions.
Figure 1. Congressional Requirements and Timeline for FTAs Under TPA-2015

Source: CRS, based on P.L. 114-26.

Christopher A. Casey, Analyst in International Trade and
Finance
https://crsreports.congress.gov

Trade Promotion Authority (TPA)

IF10038
Cathleen D. Cimino-Isaacs, Specialist in International
Trade and Finance

Disclaimer
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https://crsreports.congress.gov | IF10038 · VERSION 35 · UPDATED