Should Congress Codify Trump's Trade Deals?
For the purposes of domestic law, the trade deals negotiated by the Trump administration have been concluded as executive agreements, and there is no indication that the administration wants Congress to approve them via statute. Some members of Congress have raised this possibility though. Here's something from a recent piece by Republican Adrian Smith of Nebraska (Chair of the House Ways and Means Trade Subcommittee) arguing that Congress "must be ready to codify the agreements":
President Trump wants to leave a legacy of restoring balanced reciprocal trade. In order to do so, the administration must continue to deliver strong trade deals, and Congress must be ready to codify the agreements. Only through statute can we truly secure long-term, enforceable commitments from our trade partners and ensure trade progress persists beyond 2028.
One issue here is that he emphasizes "enforceable commitments," but from what we have seen in Trump's trade deals so far, it could be argued that they do not contain enforceable commitments because there's no enforcement mechanism. For example, the Malaysia trade deal says only this about enforcement:
Article 7.4: Enforcement
...
2. If a Party considers that the other Party has not complied with a provision of this Agreement, the Party may review the terms of this Agreement and take action in accordance with applicable domestic law. A Party shall, when practicable, with a view to finding a mutually satisfactory solution, notify and seek consultations in good faith with the other Party prior to taking any action.
Now, I can imagine someone may say something like, "but actually Trump's trade deal are enforceable because of Trump's credible threats to use unilateral tariffs as enforcement." The problem with that argument is that it doesn't seem like this is what Smith has in mind with enforcement. Here's what he says, in the very next sentence, about the USMCA:
The United States-Mexico-Canada Agreement is the gold standard for such enforcement mechanisms, and I am working to make meaningful improvements as we begin its 2026 review process.
As is well-known, as part of the transformation of NAFTA into the USMCA, the parties fixed NAFTA's broken panel adjudication process and there is now a process that works. If Smith sees USMCA enforcement as the "gold standard," he shouldn't want to go backwards to an approach that doesn't have a panel adjudication system at all. Thus, if he and others in Congress want these recent trade deals codified, I would suggest pushing for the addition of an enforcement mechanism along the lines of the one in the USMCA before going ahead with that.
More broadly, I think members of Congress should ask the following question about the agreements: "Do these trade deals accomplish what I want them to?" For someone like Smith, a farm state Congressman looking to promote agricultural exports, I can imagine he is happy with what he is seeing in the texts of the agreements/joint statements/fact sheets so far in terms of market access for U.S. agricultural products. Along these lines, Smith says the following:
... I was pleased to see President Trump and his trade team take pivotal strides to improve access in global markets for U.S. goods and services. Months of diligent work by President Trump and Ambassador Jamieson Greer, the U.S. Trade Representative, have resulted in greater cooperation with Southeast and East Asian allies to the benefit of America’s farmers, ranchers, workers, and innovation drivers. This includes vast reductions of tariff and non-tariff barriers for U.S. agricultural products.
However, given the broader context of the way these negotiations are being approached, I wonder how well the lowering of these trade barriers – after the agreements are formally ratified in other countries – will translate into export growth for U.S. agriculture producers. And then beyond these products and these specific countries, I also wonder what the effect of the Trump administration's trade policy will be on U.S. exports overall.
In addition to these considerations, Congress should look at the overall content of these deals. Do the deals represent an international framework for U.S. trade policy to which members of Congress want to give permanence through enactment in a statute? What exactly does Congress want to see at the moment in terms of the content of international trade agreements? In the past, there were debates over the nuances of investment protection and IP protection, and labor and environmental standards, and digital trade rules. Where does Congress stand on any of that today? And how does it see the concept of "economic security," which is being brought into trade agreements? Does it have a view on the non-trade concessions the Trump administration is making as part of these deals?
This doesn't seem like a moment in which Congress is ready to debate these and other substantive trade policy issues. However, if members of Congress want to play an effective role in trade policy, they should probably have these discussions – internally and through public hearings – before pushing ahead with codifying the deals being negotiated by the Trump administration.