The question of whether trade agreements could be concluded constitutionally as agreements between Congress and the executive branch and not as treaties arose when considering the laws of application of the Uruguay Round. The question was originally raised because of the perceived effect of the agreements on states26.26 The issue also arose in a legal challenge to NAFTA, which argued that the non-application of the treaty procedure had rendered the agreement and its rules of application unconstitutional. Made in the USA Foundation v. United States, a Federal District Court of Alabama in July 1999, that “the President had the power to negotiate and conclude nafta in accordance with his executive power and according to the authority given to him by Congress in accordance with the terms of the Omnibus Trade and Competitiveness Act of 1988 … and Section 151 of the Trade Act of 1974 … and as approved by NAFTA law. 27 In the Tribunal`s view, the foreign trade clause, combined with the necessary and correct clause and the foreign policy power of the President under Article II of the President, provided a sufficient constitutional basis for the agreement. The court tentatively established that institutional but not individual applicants were entitled to appeal and that political doctrine did not prevent them from deciding the merits. The Bipartisan Trade Promotion Authority Act of 2002 (BTPAA), which is included in Title XXI of the Trade Act 200216, has granted the President new bargaining power over trade. Although the Authority ended during the 110th Congress, the implementation of trade agreement laws concluded before July 1, 2007 was subject to expedited legislative review17. The 2002 act did not provide for laws to implement such an agreement to be submitted to Congress at any given time. Agreements reached before 1 July 2007, which had not yet been approved at that time, included free trade agreements with Colombia, Korea and Panama18. The agreements with Chile, Singapore, Australia, Morocco, Bahrain, Oman, the Dominican Republic-Central America Free Trade Agreement and the United States (DR-CAFTA) and Peru had been pre-approved in this procedure.
The United States has free trade agreements with 20 countries. These free trade agreements are based on the WTO agreement, with broader and stronger disciplines than those of the WTO. Many of our free trade agreements are bilateral agreements between two governments. But some, such as the North American Free Trade Agreement and the Dominican Republic-Central America-U.S. Free Trade Agreement, are multilateral agreements between several parties. Finding the right balance depends on the interaction of several fast-track provisions: the duration, the scope, the accuracy of the direction of the negotiations given to the President, and the mechanisms for moving the rapid processing of a particular agreement away from it.