With the conclusion of the NAFTA renegotiation, the next step in the United States is Congressional consideration. The assumption is that the agreement will be considered pursuant to Trade Promotion Authority (TPA), and there are some questions as to whether the Administration has complied with TPA. For example, TPA requires consultations with members “upon request,” and some have complained that the Administration has shown “no serious commitment to consulting with or listening to Congress on trade.” There are also likely to be questions about compliance with negotiating objectives, and perhaps even advisory committee reporting requirements.
If these complaints are accurate, the available remedy under the statute, as modified in 2015, is for both Houses of Congress to pass a disapproval resolution. (Section 106(b)). That does not seem likely; TPA does not require a vote on a disapproval resolution, and to pass one, majorities of both Houses, currently under Republican control, would have to reject their own President’s wishes. Moreover, the absence of a vote on a disapproval resolution does not mean the underlying legislation necessarily passes; Members can still vote against the implementing bill. In that sense, inertia favors not disapproving.
But it also doesn’t really matter. TPA is a rule. It’s a rule that provides for a timeframe for Congressional consideration of an implementing agreement, an up-or-down (no amendment) vote on the legislation, and a waiver of the filibuster in the Senate. (19 U.S.C. 2191 (d), (g)) Rules can be changed; and TPA itself makes it clear that either House can change these rules as they see fit. (Section 106(c); 19 U.S.C. 2191(a)).
What does that mean in practice? In 2008, the Bush Administration sent implementing legislation for the Colombia trade agreement up to the Hill, triggering a vote within a time certain. The House then passed a rule eliminating that requirement.
What about the no amendment rule? That hasn’t been modified in reality – but it has in practice. In 2007, House Democrats insisted on a suite of changes to four agreements concluded by the Bush Administration. The changes are known as the May 10th Agreement, and they include stronger rules on labor and the environment, and some leeway for developing countries on intellectual property requirements.
As the foregoing shows, the action seems to be in the House. What about the Senate? For all the emphasis on TPA as providing a fixed timeframe for consideration, and the up-or-down vote, the most undervalued aspect of TPA may be the waiver of the filibuster in the Senate. It’s the difference between having to get 60 votes to move to the underlying bill, versus getting a simple majority – or fewer – on the bill itself.
The relevance of that margin has been driven home twice in 2018: the vote on the tax cuts, which the Majority moved heaven and earth to have considered under the reconciliation procedure, which provided for a simple majority rather than 60 votes; and the confirmation of Justice Kavanaugh, which barely garnered 50 votes and would not have garnered 60, even on procedure.
What might a trade agreement look like, if it were required to survive a procedural vote requiring the assent of 60 Senators?