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The Fast Track and United States Trade Policy, 18 Brook Brooklyn Journal of International Law Volume 18 Issue 1 Symposium: Article 7 The rU uguay Round and the Future of World Trade 9-1-1992 The aF st Track and United States Trade Policy Harold Hongju Koh Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Harold H. Koh, The Fast Track and United States Trade Policy, 18 Brook. J. Int'l L. 143 (1992). Available at: https://brooklynworks.brooklaw.edu/bjil/vol18/iss1/7 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. THE FAST TRACK AND UNITED STATES TRADE POLICY Harold Hongju Koh* In the waning days of Watergate and Vietnam, a legislative innovation known as the "Fast Track" unexpectedly became the keystone of modern United States trade policy. An expedited legislative procedure found throughout United States foreign af- fairs statutes - particularly international trade, foreign assis- tance, emergency economic powers, and war powers legislation - the Fast Track authorizes the President to initiate a foreign affairs action (for example, negotiation of an international trade agreement), but requires him to notify, consult, and subse- quently submit the product of that action back to Congress for final, accelerated approval.1 Under modified House and Senate rules, Congress "promises" the President that it will automati- cally discharge the completed initiative from committee within a certain number of days, bar floor amendment of the submitted proposal, and limit floor debate, thereby ensuring the President and our trading partners that the submitted legislative package * Professor, Yale Law School. The ideas developed here borrow and build upon ear- lier work, particularly Harold Hongju Koh, History of the Fast Track Approval Mecha- nism, in GUIDE TO THE U.S.-CANADA FREE-TRADE AGREEMENT: TEXT, COMMENTARY, SOURCE MATERIALS I (Judith H. Bello & Alan F. Holmer, Supp. 1991) [hereinafter Bello & Holmer]; Harold Hongju Koh, Congressional Controls on Presidential Trade Poli- cymaking After LN.S. v. Chadha, 18 N.Y.U. J. INT'L L. & POL. 1191 (1986) [hereinafter Koh, Congressional Controls]; Harold Hongju Koh, The Legal Markets of International Trade: A Perspective on the Proposed United States-CanadaFree Trade Agreement, 12 YALE J. INT'L L. 193, 201-18 (1987) [hereinafter Koh, Legal Markets], and presentations made to the International Economic Law Interest Group at the 1991 Annual Meeting of the American Society of International Law and the Brooklyn Law School Symposium on "The Uruguay Round and the Future of International Trade." Judy Bello, Gary Horlick, Alex Platt, Edmund Sim, and Saikrishna Prakash deserve many thanks for their excep- tional comments and contributions, although none, of course, bears any responsibility for the result. 1. See generally Koh, Congressional Controls, supra note * at 1211-21 (describing how this technique has been used in the trade area). The Fast Track procedure has also been included in several other foreign affairs statutes, including the foreign assistance and war powers legislation. See Jeffrey A. Meyer, Congressional Control of Foreign As- sistance, 13 YALE J. INT'L L. 69, 78-79 & n.38, 86-88 (1988) (citing statutes). For recent proposals to employ Fast Track provisions for arms control and arms sales, see, e.g., Ronald A. Lehmann, Note, Reinterpreting Advice and Consent: A Congressional Fast Track for Arms Control Treaties, 98 YALE L.J. 885, 896-903 (1989); Vanessa Patton Sciarra, Note, Congress and Arms Sales: Tapping the Potentialof the Fast Track Guar- antee Procedure, 97 YALE L.J. 1439, 1448, 1453-57 (1988). BROOKLYN J. INT'L L. [Vol. XVIII:l will be voted up or down without alteration within a fixed time period. The Fast Track serves two goals: at the same time as it en- hances presidential negotiating credibility, it promotes presiden- tial accountability to Congress. By guaranteeing swift legislative approval of an unaltered trade agreement, the Fast Track as- sures our allies that the President can deliver on promises made in his name at the international negotiating table. At the same time, it guarantees Congress both information about, and early and ongoing input into, presidential negotiation of important in- ternational trade agreements. Since its inception in the Trade Act of 1974 (1974 Act), this expedited legislative-approval mechanism has exhibited enor- mous versatility as a procedural device to secure congressional- executive cooperation in the management of United States inter- national trade policy.2 But the recent battle over the initiation of North American Free Trade Agreement (NAFTA) talks among the United States, Canada, and Mexico has not only modified the way that the Fast Track will likely apply in the future, but has also cast doubt on the Fast Track's viability as a linchpin of future trade negotiations. Most intriguing, during the most recent political struggle, NAFTA opponents lodged a new policy objection against the Fast Track's use that directly chal- lenged its supposed policy advantage: that its use does not en- hance, but rather stifles, accountability and democratic decision- making in the forging of United States trade accords. The NAFTA debate raised the tantalizing question whether the Fast Track has or 'will soon outlive its usefulness for United States trade policy. Part I of this article reviews and evaluates the Fast Track's role during the most recent NAFTA episode and enumerates the ways that Congress may continue to exert influence over the substance of the accord in the months ahead. Part II considers, and largely rejects, the "democracy" objection lodged against the Fast Track, relying in part upon recent aca- demic analyses of democratic decisionmaking in the legislative process. Finally, Part III speculates more broadly on the Fast 2. See Trade Act of 1974, Pub. L. No. 93-618, §§ 151-153, 88 Stat. 1978 (1975), 19 U.S.C. §§ 2191-2193 (1988) (1974 Act). The best illustration came at the close of the 1979 Tokyo Round, when, thanks primarily to the Fast Track, the entire United States legis- lative process for approving the nine multilateral agreements negotiated there consumed only thirty-four legislative days from presidential notification to final approval. See Koh, CongressionalControls, supra note *, at 1203. 1992] THE FAST TRACK 145 Track's future in the evolution of United States trade policy and suggests possible modifications of the Fast Track that would ad- dress those valid policy concerns that some have raised against it. I. THE FAST TRACK: How IT WAS, How IT Is The current version of the Fast Track began life in the 1974 Act, which authorized the United States participation in the To- kyo Round of multilateral trade negotiations.' As I have chroni- cled elsewhere, the 1974 Act was wreathed with provisions that manifested Congress' pervasive post-Watergate, post-Vietnam distrust of unchecked executive discretion in foreign affairs: specified negotiating objectives; sunset provisions on presidential negotiating authority; extensive consultation, certification and reporting requirements; and dramatic "judicialization" of trade 4 remedies. The best-known of these executive discretion-controlling devices were the 1974 Act's six legislative vetoes, whereby Con- gress delegated various statutory authorities to the President, but retained the right by simple or concurrent resolution to sub- sequently approve or disapprove the result of his actions. The legislative veto had numerous disadvantages, both constitutional and political, and as everyone knows, the Supreme Court struck it down less than a decade later.6 Yet despite these defects, the 3. See Trade Act of 1974, 19 U.S.C. §§ 2191-2193. 4. The 1974 Act dramatically expanded citizen access to the trade process by: em- powering private individuals to initiate proceedings directly against foreign industries by private complaint, easing standing requirements, requiring executive branch action on private complaints within strict statutory time limits, and subjecting that action to ex- tensive judicial oversight. In the process, Congress created much of the modern United States statutory law of import relief, including the modified escape clause, antidumping and countervailing duty provisions, customs fraud penalties, statutory remedies against infringement and unfair trade practices, and the now notorious Section 301. See gener- ally Koh, Congressional Controls, supra note *, at 1205-06. 5. A legislative veto is a simple resolution approved by a majority of one house ("one-house veto"), or a concurrent resolution approved by majority votes in both houses ("two-house veto"), which purports to alter or override completed executive action. Both types of vetoes are actions with legislative effect - in the sense that they alter the rights and duties of those outside the legislative branch - but are not accomplished by formal legislative procedures. 6. In INS v. Chadha, 462 U.S. 919 (1983), the Court held that Article I, § 7 of the United States Constitution requires that all actions with legislative effect be approved by a majority of both the House and the Senate (the so-called "bicameralism" requirement) and then presented to the President for his signature or veto (the so-called "present- ment" requirement). Concurrent resolutions satisfy bicameralism, but not presentment; 146 BROOKLYN J. INTL L. [Vol. XVIII: legislative veto effected a crucial
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