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After more than a year of negotiations and many additional months of advocacy before legislators, it’s almost go time for the United States-Mexico-Canada Agreement (USMCA) in Congress.
A handful of issues are still under discussion in talks between the Office of the U.S. Trade Representative and a working group of House Democrats appointed by Speaker Nancy Pelosi. The U.S. Chamber of Commerce believes these gaps can be bridged, and we’re optimistic these parties will reach an understanding in the weeks ahead — setting the table for a vote this fall.
But questions arise: how exactly does Congress go about voting on a trade deal like USMCA?
Like other trade agreements, USMCA is a congressional-executive agreement that must be approved by both chambers of Congress. It isn’t a treaty, which wins ratification by securing an affirmative vote from two-thirds of the Senate.
Today, trade agreements like USMCA are approved by procedures established under the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (known as Trade Promotion Authority or TPA).
TPA establishes rules under which Congress and the executive branch work together on trade. This is necessary because the Constitution gives the president authority to negotiate with foreign governments, but it gives Congress authority to regulate international trade.
TPA squares this circle by allowing Congress to set negotiating objectives for new trade pacts and requiring the executive branch to consult with Congress during negotiations. Congress gets the final say on any trade agreement in the form of an up-or-down vote.
Congress does not vote on the agreement itself but on an implementing bill, which includes all the changes to U.S. law required to bring the U.S. into compliance with the agreement. The U.S. government can implement some provisions — those that do not require changes to U.S. law — by issuing a Statement of Administrative Action.
Unlike the vast majority of laws, the implementing bill itself is written by the administration and delivered to Congress. In advance of this step, the House Ways and Means and Senate Finance committees may hold “mock markups” that reveal the preferences of the trade committees with regard to how the bill should be written, while still conforming to the terms of the trade agreement.
However, once the bill is sent to Congress, it may not be amended. This critical feature of TPA empowers U.S. negotiators because foreign governments understandably want to negotiate with the U.S. once — not once with the executive branch and then again with 535 members of Congress.
Approval requires a simple majority of each chamber of Congress. The implementing bill must be considered first by the House as the Constitution requires of all legislation with an impact on federal revenues. (Trade agreements, by eliminating many import duties, fall into this category.)
After the implementing bill is submitted simultaneously to both chambers of Congress, TPA outlines certain steps. CRS summarizes it thus:
In each chamber, the committees have 45 session days to report the bill back to the floor, and they may not amend it or recommend amendments. If either committee does not report after 45 session days, it is discharged from considering the implementing bill, which makes the bill available for floor action (days on which the respective chamber does not meet are not counted toward the 45-day period).
With past trade agreements, these deadlines haven’t played a central role in the congressional process. How long does it typically take for a trade agreement implementing bill to win congressional approval? It varies, but where there’s a will, there’s a way.
To illustrate, in 2011, U.S. trade agreements with Colombia, Panama, and South Korea won final congressional approval just 11 calendar days after their implementing bills were submitted to Congress. Of course, months of preparation preceded the submission of these bills, but this speedy performance underscores that the process can in fact move quickly when members of Congress are aligned.
The U.S. Chamber is optimistic about the outlook for USMCA, but we aren’t taking anything for granted. We won’t let up in our advocacy until approval of this critical agreement is assured.