On June 24, after weeks of legislative wrangling and extensive lobbying by influential interest groups, the U.S. Senate passed the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, better known as the Trade Promotion Authority (“TPA”) legislation. The House approved identical legislation last week, so the President now can sign TPA into law.

Although enactment of TPA is technically not a prerequisite for Congress to consider pending free trade agreements (“FTAs”), the “fast track” procedures contained within the TPA legislation offer the President critical leverage to finalize negotiations for several key FTAs and provide assurances to trading partners that Congress will not reopen the negotiations after the agreement has been finalized. In particular, the TPA bill mandates the use of several procedures to accelerate Congressional consideration of legislation to implement a trade agreement. These expedited procedures include:

  • Required discharge of the FTA implementing legislation within 45 days by the two committees with jurisdiction over the deal (the House Ways & Means Committee and the Senate Finance Committee)
  • Consideration of the legislation by a non-debatable motion on the floor of each chamber and no requirement for a supermajority vote to limit debate on the motion
  • Debate of the legislation for no more than 20 hours
  • No consideration of amendments to modify the FTA or dilatory motions to delay a vote on final passage of the legislation; rather, Congress must vote up or down on the FTA and its implementing legislation as is.

The TPA legislation, once enacted, will enable the President to submit two high-profile FTAs to Congress for approval under expedited legislative procedures, so long as the agreements are signed before July 1, 2018, or, if the President requests an extension, before July 1, 2021. In particular, the enactment of TPA is expected to facilitate approval by Congress of the pending Trans-Pacific Partnership (“TPP”) trade deal with 11 countries from the Pacific Rim and North America, and the Transatlantic Trade and Investment Partnership (“TTIP”) with the European Union. It also potentially could be used as a vehicle to submit the Trade in Services Agreement (“TISA”) to Congress in the future. The TPP is much farther along and could be completed this year; the TTIP negotiations are still in early stages, and TISA also has a long way to go.

The TPA soon to be signed into law, like prior versions of TPA (since expired), is an agreement between Congress and the President under which Congress commits to an expedited review procedure in exchange for the President’s commitment to consult with the relevant Congressional committees during the negotiations and to pursue specified negotiating objectives. If the President does not conform to the procedural and substantive requirements of the TPA, Congress can deny use of the fast-track procedures. Congress, of course, retains the power to reject an agreement.

Although there have been some changes in the procedural and substantive requirements, the key elements of the TPA are similar to those in prior versions, and the White House feels that the pending TPP already meets the requirements. With 12 countries (including the United States) involved in the TPP negotiations, the situation is especially complex. The White House hopes that the enactment of the TPA will allow it to complete the TPP negotiations in the near future.

Of course, the passage of the TPA does not ensure Congress’ eventual approval of any particular FTA, including the TPP. It also does not assure that the negotiations can be completed.