Last month, Curt Bradley, Jack Goldsmith, and Oona Hathaway highlighted a set of provisions found in Section 310 of the proposed Strategic Competition Act of 2021 (SCA) that would improve transparency of U.S. international agreements. Importantly, they noted there, as they do in their recent Harvard Law Review article, that the State Department only makes public a fraction of the agreements that the executive branch concludes and that it likewise falls short in reporting those agreements to Congress as required under the Case-Zablocki Act (Case Act).
Part of the reason for the State Department’s underperformance on executive agreement publication and reporting is that not every agency provides the State Department with copies of the agreements it concludes. That is especially true when it comes to trade-related executive agreements (TEAs) – foreign commercial agreements not approved by Congress after their conclusion. But forwarding completed deals to State is not the only accessibility issue surrounding our more than 1,200 TEAs.
As I explore in a forthcoming essay in the Columbia Law Review Forum, trade deals are frequently left unpublished and unreported by the U.S. agencies that negotiate them. In fact, TEAs are sometimes not available to anyone apart from the agency that concluded them and the foreign government partner. Worse still, in some instances, the U.S. government has misplaced its copy entirely.
Not having the text of commercial agreements concluded by the U.S. government is troubling as a matter of good governance, though it would matter less if these agreements were relatively inconsequential. But even a brief glimpse of those that are available indicates that these agreements create binding commitments of reasonably significant value. They govern the goods and services that get into the country and under what conditions. They set up systems for food safety, product quality, cooperation with significant foreign partners, and much more. The result is that hundreds of agreements critical to our globalized supply chains are simply unavailable.
My team and I had to locate these trade deals by hand – reaching out to foreign governments, subscription services, retired U.S. government workers, and anyone else who might have access to agreements that the U.S. government no longer has or is unwilling to share.
That executive branch agencies are not reporting and providing TEAs to Congress also has constitutional implications. Unlike some other areas of foreign relations, the regulation of foreign commerce is a congressional prerogative per Article I of the U.S. Constitution; and yet, as our work revealed, Congress has only limited information about the foreign commercial agreements into which the U.S. government is entering.
Despite the explosion in the use of hidden trade deals in recent years, Congress has only barely spoken to the problem. A 2002 statute provides that an undisclosed TEA related to a major free trade agreement shall have “no force and effect” under U.S. law. That constraint does little to address the unavailability of hundreds of other TEAs, let alone the executive’s engagement with Congress about them or the delegation of authority issues that they also implicate.
Why the SCA Doesn’t Solve Problems with Trade Agreements
It doesn’t have to be that way. But the proposed changes set out in the SCA will not do what is needed to fix trade’s transparency problems.
One primary limitation of Section 310 of the SCA – and of the 1972 Case Act – is its focus on the State Department as the clearinghouse for executive agreements whereas trade has been institutionally and procedurally separate from other areas of foreign relations for more than fifty years. In 1962, the Office of the U.S. Trade Representative (USTR) was created to take trade out of the State Department’s purview and, while an interagency structure was built around it to provide support, USTR has the lead on the trade agreements program. That division of labor, enhanced by later legislation giving USTR still greater management and control, created different lines of authority and processing for trade agreements than for other agreements.
Thus, withholding appropriations from the State Department as the SCA seeks to do would not prevent trade-engaged agencies (any one of more than a dozen agencies that are so engaged such as the Department of Agriculture, the Department of Commerce, the Food and Drug Administration, USTR, etc.) from doing what they are already doing – concluding, on average, twenty of these off-the-radar agreements each year. The SCA also would require that the executive branch notify committees within five days after the State Department approves negotiation or conclusion of an agreement, but there again, State is often left out of the trade dealmaking exercise, so such an obligation is likely to fall flat.
This partitioning of trade by design allows the trade lawmakers in the executive branch to claim that trade is part of “foreign relations” when convenient, such as when their actions may risk falling under Administrative Procedure Act’s scrutiny, and to claim trade is more like domestic lawmaking when convenient, such as to avoid subjecting TEAs to the strictures of the Case Act. It remains contested between State and trade-engaged agencies as to which, if any, TEAs ought to go through State’s Case Act processes. Even adding a Chief International Agreements Officer at trade-related agencies as the SCA purports to do may not be sufficient to overcome those interagency debates as to what qualifies for State’s processes. The issue is not one of staff shortage but rather statutory interpretation.
Trade is Also Specially Situated on the Hill
That the Senate Foreign Relations Committee’s suggested changes to the Case Act are insufficient for dealing with TEAs is unsurprising. The same structural distinctions for trade are found on the Hill: USTR reports to the Senate Finance Committee, not the Senate Foreign Relations Committee. Likewise, it regularly engages with the House Ways and Means Committee, not House Foreign Affairs. That close relationship with Congress stands out among the foreign relations bureaucracy just as does trade’s constitutional positioning. As the former chair of the House Ways & Means Committee recently put it, Congress is USTR’s client.
It is not that the Senate Finance Committee is not paying attention. It very much is. Just recently it re-upped a proposal for a USTR Inspector General for greater oversight at that agency. But it has paid less attention to TEAs and their invisibility. The focus of trade negotiating authority over the last fifty years has been the content and congressional approval of major free trade agreements (FTAs). That authority is time-limited and expires this summer. Already some on the Hill have called for its renewal despite President Biden having previously said he will not enter into new FTAs until “we’ve made major investments here at home.”
How to Address TEA Transparency Issues
If new trade negotiating authority comes into effect in the Biden Administration, lawmakers from both branches should use it as a chance to address the transparency problems with TEAs. The next trade legislation ought to include provisions to temper the publication, reporting, and record-keeping issues of the past.
The solutions need not be that different from those in the proposed SCA but they need to be directed to the right places and be clear about what is required and under what timeline. For example, requiring trade agencies to “publish” agreements is not enough. Even where an agency makes TEAs publicly available on the internet, it takes some significant web sleuthing to find them or to know they exist at all. Thus, the publication requirements set out in any legislative reform need to be clearer about where and how the many trade-engaged agencies ought to publish TEAs.
Similarly, critical to clarity in the rules and expectations for reporting and publishing is defining what constitutes a TEA. In trade-land, deals take many forms. Part of the challenge that my team and I faced was trying to figure out what falls into this category in the absence of any standardization. The State Department has developed its own criteria for international agreements as the Case Act prescribes but again, whether the disciplines of the Case Act and State’s regulations under that Act apply to the work of trade agencies is a matter of debate. Explaining what sorts of deals are subject to which transparency regime (State’s or another trade-specific process) will help.
Conclusion
These suggestions and others I set out in my forthcoming essay are badly needed to modernize the TEA system to reflect and account for the practices developed by our trade administrative state – above and beyond what the SCA may do for other types of executive agreements. The time is now: on May 7, the Biden Administration announced new “Transparency Principles” for USTR which include ensuring that the USTR website “contains up to date information on current trade initiatives and programs . . . . [M]aterials related to agency programs, initiatives, and negotiations will contain sufficient information to adequately inform the public and will link to available background information on the USTR website.” Further, commentators have recently suggested the Congress is getting back in the trade game after a period of more “limited presence.” Dealing with TEA transparency together with the Biden administration ought to be front and center in the playbook.