This is post one of two on trade agreements in the news over the last ten days.
Many will know that the president signed into law the National Defense Authorization Act in the days before Christmas. Like several recent big legislative packages, this one contains some important trade-relevant provisions. I want to highlight just one, one that was crafted by many elves over many months, and does not mention trade at all.
The “gift” to which I’m referring in the holiday Act is a set of amendments to the 1972 Case-Zablocki Reporting Act (Case Act) -- go to page 2590 of the NDAA to find them.
In brief, the Case Act is the statute that requires the executive branch to report to Congress on agreements that the executive signs and to publish those agreements for the benefit of the public. Problems have plagued the Case Act’s success since its inception. The collection of executive agreements held by the State Department and shared with Congress is woefully incomplete – and it is especially bad when it comes to the more than 1200 trade-related executive agreements (TEAs). Part of the problem is that, in the trade space, USTR plays what is, in other foreign relations circumstances, the State Department’s “clearinghouse role”—and this immediately creates distinctions in how those agreements are handled. Trade agreements are often left out of the State Department’s reporting and publishing repertoire for a variety of reasons, despite far-reaching mandates in the Case Act.
To be sure, Congress asks for reports about trade lawmaking activities, including what has been known as the U.S. “trade agreements program,” but this typically amounts to either reporting about traditional free trade agreements or offering a partial list of TEAs without their texts. All this – and much more I have described elsewhere – has made the hiddenness of TEAs troublesome, more so than with other executive agreements. Their application, monitoring, and engagement needs are more acute than those for agreements with more distant or limited effects on private actors.
The NDAA amendments, which will be operational by late September, offer a good start toward improving the transparency of executive agreements. The amendments will help make available many agreements that, before now, may never have seen more than the inside of a desk in a government agency. For example, the amendments require agencies to make available to State (for State to then publish and send to Congress) non-binding instruments. They require agencies to provide a detailed description of the authority under which agreements are concluded and the authority needed to implement them, among several other important obligations. The NDAA also provides resources to the State Department to take on these additional responsibilities.
There is a lot more to unpack in the text as it becomes operational in the fall. The amendments have the potential to enhance the dialogue between the branches on effective implementation of agreements and to clarify how agreements become part of U.S. law. These are moves in the right direction and include several that scholars and practitioners have sought.
But these amendments still leave questions unanswered when it comes to trade-related agreements such as many entered into by USTR, Commerce, Treasury, or USDA. The amendments do not do enough to take into account trade’s special institutional foundations within the U.S. government. Part of the longstanding difficulty on trade agreements has been one of differing interpretations between State and USTR of the inclusivity of the Case Act. The NDAA amendments again speak of agreements generally without further clarity as to whether trade is in, as State argues, or out, as USTR argues, of the exercise.
Further, since USTR already makes a list of all the trade-related agreements about which it knows, this could have been an opportunity to ask USTR to digitize and make available copies of all those agreements. That would go part of the way to providing a centralized repository of trade-related agreements, given the shortfalls at the State Department. Generally, however, the NDAA amendments do not address existing agreements, only future ones.
Finally, the NDAA amendments continue to centralize agreement oversight in the Senate Foreign Relations Committee and House Foreign Affairs Committee. That makes sense for many non-trade agreements, but this structural distinction between those committees and Senate Finance and House Ways and Means only exacerbates confusion in reporting structures.
Come September, we may have more transparency on trade-related agreements, but we may not if agencies remain entrenched on how they view TEAs, how they treat them, and whether they share them. It may take trade-specific legislation to fill in these gaps – perhaps that will come in 2023.
