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Developments Relating to U.S. Trade Negotiations—KORUS, NAFTA, and Trade Promotion Authority

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Consistent with his approach on the campaign trail, President Trump has demonstrated a continued interest in revamping U.S. trade agreements. By the late spring of 2018, the Trump administration had negotiated modest changes to the United States-Republic of Korea Free Trade Agreement (KORUS) in favor of U.S. interests. It had yet to reach any final agreement with regard to the North American Free Trade Agreement (NAFTA), despite the expiration of an initial deadline that was designed to ensure adequate time for a vote on the negotiated agreement by the present Congress. To ease the passage of future trade deals, Trump has triggered the three-year extension of a process that provides expedited congressional consideration of negotiated trade agreements.

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1 Office of the U.S. Trade Rep. Press Release, Joint Statement by the United States Trade Representative Robert E. Lighthizer and Republic of Korea Minister for Trade Hyun Chong Kim (Mar. 28, 2018), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/march/joint-statement-united-states-trade [https://perma.cc/T4PK-6677] [hereinafter KORUS Joint Statement].

2 Office of the U.S. Trade Rep. Press Release, USTR Calls a Special Session Under the U.S.-Korea Free Trade Agreement (July 12, 2017), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/july/ustr-calls-special-session-under-us [https://perma.cc/5GTC-E4HH]; Office of the U.S. Trade Rep. Press Release, USTR Announces Second Special Session of the U.S.-Korea FTA Joint Committee (Sept. 22, 2017), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/september/ustr-announces-second-special [https://perma.cc/4AWB-XV44].

3 United States–Republic of Korea Free Trade Agreement, Art. 22.2, para. 3(c), June 30, 2007.

4 KORUS Joint Statement, supra note 1.

5 Republic of Korea Ministry of Trade, Industry and Energy Press Release, Korea, US Reach Agreement on Trade Deal and Steel Tariff Exemption (Mar. 26, 2018), at http://english.motie.go.kr/en/pc/photonews/bbs/bbsList.do?bbs_cd_n=1&bbs_seq_n=678 [https://perma.cc/AUS2-L6L8].

6 White House Press Release, President Donald J. Trump is Fulfilling His Promise on The U.S.–Korea Free Trade Agreement and on National Security (Mar. 28, 2018), at https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-fulfilling-promise-u-s-korea-free-trade-agreement-national-security [https://perma.cc/Y339-ARNB].

7 Id. (also noting a few other aspects of the deal).

8 See Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 501 (2018).

9 Letter from Kevin Brady, Chairman House Ways and Means Committee, Orrin Hatch, Chairman Senate Finance Committee, Richard E. Neal, Ranking Member House Ways and Means Committee, and Ron Wyden, Ranking Member Senate Finance Committee, to Robert E. Lighthizer, U.S. Trade Representative (July 17, 2017), available at https://waysandmeans.house.gov/wp-content/uploads/2017/07/2017-07-17-KORUS-Big-4-Letter-to-Lighthizer.pdf. The letter noted that the Trump administration had not taken the steps needed to ensure that any amendments would receive expedited consideration from Congress. Id.

10 See Jeffrey J. Schott, Fixing theKORUSFTA–Without Fireworks, Peterson Inst. Int'l Econ. (Jan. 26, 2018), at https://piie.com/blogs/trade-investment-policy-watch/fixing-korus-fta-without-fireworks (noting that “Korean officials have been pragmatic in response to US demands for additional Korean concessions without complementary US reforms” as they “recogniz[e] that US officials can only address requests for KORUS FTA revisions that do not require congressional approval”); Ellyn Ferguson, White House Says Revised South Korea Trade Pact Within Reach, Roll Call (Mar. 28, 2018), at https://www.rollcall.com/news/politics/white-house-says-revised-south-korea-trade-pact-within-reach (reporting that “Congress does not have to approve the final agreement”).

11 Katie Rogers & Jim Tankersley, Trump Heralds South Korea Trade Deal, Then Says He Might Delay It, N.Y. Times (Mar. 29, 2018), at https://www.nytimes.com/2018/03/29/us/politics/trump-infrastructure-trade-deal-south-korea.html.

12 Id.

13 Donald J. Trump, Remarks Prior to an Expanded Bilateral Meeting with President Emmanuel Macron of France, 2018 Daily Comp. Pres. Doc. 2 (Apr. 24, 2018).

14 Office of the U.S. Trade Rep. Press Release, USTR Robert Lighthizer Issues Statement on Status of NAFTA Renegotiation (May 14, 2018), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/may/ustr-robert-lighthizer-issues-statement [https://perma.cc/4LLV-PH7J].

15 Adam Behsudi, Ryan Says May 17 Is Deadline to Assure 2018NAFTAVote, Politico (May 10, 2018), at https://www.politico.com/story/2018/05/10/paul-ryan-nafta-vote-deadline-1200989.

16 Vicki Needham, Lighthizer saysNAFTACountries Are “Nowhere” Near Reaching a Deal, The Hill (May 17, 2018), at http://thehill.com/policy/finance/388263-lighthizer-says-nafta-countries-are-nowhere-near-reaching-a-deal.

17 Maham Abedi, 4 ChallengesNAFTANegotiations Are Facing as Deadline Looms, Global News (May 15, 2018), at https://globalnews.ca/news/4209888/nafta-negotiations-disagreements.

18 Ana Swanson & Elisabeth Malkin, Chance ofNAFTADeal in 2018 Diminishes as Talks Drag Past Congressional Deadline, N.Y. Times (May 17, 2018), https://www.nytimes.com/2018/05/17/us/politics/nafta-deal-deadline-congress.html.

19 E.g., Donald J. Trump (@realDonaldTrump), Twitter (Apr. 1, 2018, 10:25 AM), at https://twitter.com/realDonaldTrump/status/980451155548491777 (“Mexico is doing very little if not NOTHING, at stopping people from flowing into Mexico through their Southern Border, and then into the U.S. They laugh at our dumb immigration laws. They must stop the big drug and people flows, or I will stop their cash cow, NAFTA. NEED WALL!”).

20 Donald J. Trump (@realDonaldTrump), Twitter (Mar. 5, 2018, 6:47 AM), at https://twitter.com/realDonaldTrump/status/970626966004162560; see also Galbraith, supra note 8, at 502.

21 Needham, supra note 16.

22 Bipartisan Congressional Trade Priorities and Accountability Act of 2015, Pub. L. No. 114-26, 129 Stat. 320 (codified at 19 U.S.C §§ 4201–4210).

23 Christopher M. Davis & Ian F. Fergusson, Trade Promotion Authority (TPA): Frequently Asked Questions, Cong. Res. Serv. 21 (Apr. 10, 2018).

24 Id. at 1.

25 19 U.S.C. § 4202(a)(1)(A)(i).

26 Id. § 4202(c)(1)(B). This use of a one-house veto may be constitutionally questionable under INS v. Chadha, 462 U.S. 919 (1983), which invalidated a one-house veto provision on the ground that it was inconsistent with the Constitution's Bicameralism and Presentment Clauses. Nonetheless, as a practical matter, Congress may be in a position to take account of any use of a one-house veto in deciding whether to engage in the expedited approval process.

27 19 U.S.C. § 4202(c)(1)(B).

28 H.R. Doc. No. 115-104, at 1 (2018).

29 Id.

30 Id.

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