【1】 陳詩璧，黃國昌電爆楊泰順 網友叫好，蘋果日報，2014年3月30日，http://www.appledaily.com.tw/realtimenews/article/new/20140330/369740/（最後瀏覽日：2016年5月12日）。
【2】 N.M. Const. art. II (“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur...”).
【3】 Edwin Borchard, Shall the Executive Agreement Replace the Treaty (1944). Faculty Scholarship Series. Paper 3499. http://digitalcommons.law.yale.edu/fss_papers/3499 (“In recent years many political leaders and publicists have sought to prove that the treaty-making process, requiring the approval of two-thirds of the Senate, has become too cumbersome, inefficient, and ‘undemocratic.’”).
【4】 Id. (“The movement received particular impetus from, and finds its chief present source in, the belief that the twothirds rule prevented American ratification of the Treaty of Versailles, and thus, to use President Wilson's phrase, "broke the heart of the world.”).
【5】 Duncan B. Hollis & Joshua J. Newcomer, Political Commitment and the Constitution, Va. J. Int’l L., 49:3, 507, 548 (2008) (“Since 1792, when Congress authorized foreign postal agreements, Congress has used its own enumerated powers to authorize the president to conclude “congressional-executive” agreements with other nations. See, e.g., Act of Feb. 20, 1792, § 26, 1 Stat. 236 (1792).”).
【6】 John C. Yoo, Laws as Treaties: The Constitutionality of Congressional-Executive Agreements, 99 Mich. L. Rev. 757, 758 (2000) (“According to most international law scholars and authorities, however, both presidents easily could have evaded the Treaty Clause by submitting their international agreements as statutes. Instead of navigating Article II's advice-and-consent process, presidents have sent many international agreements to both houses of Congress for simple majority approval. Known as congressional-executive agreements, these instruments are indistinguishable under international law from treaties in their ability to bind the United States to international obligations.”).
【7】 Hollis & Newcomer, supra note 5 (“And President Franklin D. Roosevelt’s insistence on transferring certain Russian assets under an agreement with the Soviet Union—the Litvinov Assignment—led the Supreme Court to recognize executive power to make sole executive agreements.” See United States v. Pink, 315 U.S. 203, 229 (1942)”).
【8】 N.M. Const. art. VI (“ This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”).
【9】 Borchard, supra note 3 (“The Constitution refers only to treaties, giving to them legal effect as the supreme law of the land, and says nothing about Presidential executive agreements...Even ex-Supreme Court Justice and exSenator Sutherland, whose dicta in the Curtiss-Wright 24 and Belmont cases gave moral support to the new cult which attributes the force of a treaty to an executive agreement, spoke of a protocol as an example of an executive agreement, ‘without the formality of a treaty and constituting only a moral obligation.’”).
【10】Const. art. I, § 8 (“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”).
【11】Jane M. Smith, Daniel T. Shedd, and Brandon J. Murrill, Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than Treaties, Congress Research Service Report for Congress, April 15, 2013 (“The negotiation, entry into, and implementation of trade agreements implicates the President’s Article II authority to negotiate treaties and international agreements and to conduct foreign affairs, see United States v. Curtiss-Wright Export Corp., 299 U.S. 319 (1936), and Congress’s express power to impose duties and tariffs and to regulate foreign commerce. U.S. Const., Art. I, §8, cls. 1, 3. Because of Congress’s express power in this area, the President may not impose, reduce, or effect any other change in existing duty rates through an executive agreement unless he has been delegated the authority to do so by Congress.... ‘Indeed, when the President exercises authority in regulating foreign commerce, he or she does so as Congress’ ‘agent.’”).
【12】Overview of Bipartisan Congressional Trade Priorities Act of 2014 Prepared by the Staff of the Senate Finance Committee and Ways and Means Committee (‘Protects U.S. Sovereignty: New provisions affirm that trade agreements cannot change U.S. law without Congressional action.”).
【13】Smith, Shedd & Murrill, supra note 11 (“As early as 1890, Congress delegated tariff bargaining authority to the President and authorized him to suspend existing duty-free treatment on particular items by proclamation.”).
【14】Field v. Clark, 143 U.S. 649, 692-93 (U.S. 1892) (“That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. The Act of October 1, 1890, in the particular under consideration, is not inconsistent with that principle. It does not in any real sense invest the President with the power of legislation. For the purpose of securing reciprocal trade with countries producing and exporting sugar, molasses, coffee, tea, and hides, Congress itself determined that the provisions of the Act of October 1, 1890, permitting the free introduction of such articles, should be suspended as to any country producing and exporting them that imposed exactions and duties on the agricultural and other products of the United States which the President deemed -- that is, which he found to be -- reciprocally unequal and unreasonable. Congress itself prescribed in advance the duties to be levied, collected, and paid on sugar, molasses, coffee, tea, or hides, produced by or exported from such designated country while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President.”); Smith, Shedd & Murrill, supra note 11 (“The Supreme Court subsequently held that the authorizing statute, Section 3 of the Tariff Act of 18907 did not unconstitutionally delegate either legislative or treaty-making authority to the President.”).
【15】William H. Cooper, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy, Congress Research Service Report for Congress, January 13, 2014 (“Two legislative events occurred in the 1930s that radically changed the shape and conduct of U.S. trade policy. The first was the “Smoot-Hawley” Tariff Act of 1930 (P.L. 71-361), which set prohibitively high tariff rates in response to U.S. producers seeking protection at the outset of the Great Depression. The act led to retaliatory tariffs by major U.S. trade partners, which severely restricted trade and contributed to the deep and prolonged effects of the depression.”).
【16】Id. at 4 (“The damaging effects of Smoot-Hawley prompted the second major trade legislative event in the 1930s. Congress, with the guidance and encouragement of Secretary of State Cordell Hull, himself a former Senator, developed and enacted the Reciprocal Trade Agreements Act of 1934 (RTAA; P.L. 73-316). The RTAA authorized the President to enter into reciprocal trade agreements that reduced tariffs within pre-approved levels.”); Michael A. Bailey, Judith Goldstein, Barry R. Weingast, The Institutional Roots of American Trade Policy: Politics, Coalitions and International Trade, World Politics Vol. 49, No. 3, April 1997, 309-338, 316 (“The RTAA marks a turning point in American trade history because first, it moved Congress away from legislating unilateral tariffs, and second, it granted these bilateral agreements the status of treaties without a two-thirds supermajority”).
【17】Cooper, supra note 15 (“In fact, Congress passed a resolution in 1966 instructing the Johnson Administration against negotiating “nontariff commitments.” When he ignored it, Congress declined to implement the NTB changes, setting up the debate that would eventually be resolved with the creation of the fast track authority for trade agreements.”).
【18】Id. at 3 (“While delegating tariff-cutting authority, Congress did not surrender broader trade authority and insured legislatively against executive branch overreach by subjecting the trade agreements authority to a limited time period, making such authority subject to periodic review and renewal.”).
【19】Id. (“The Nixon Administration sought new authority to negotiate the Tokyo Round in the GATT, which Congress granted in the Trade Act of 1974 (P.L. 93-618). As before, the act provided the President with the authority to enter into trade agreements that reduced or eliminated tariffs within certain predefined parameters. The tariff modification authority in the Trade Expansion Act of 1962 expired on July 1, 1967, but Congress did not renew the authority for seven years as it debated legislative options. To address the critical issue of agreements that required changes in U.S. law beyond tariff modifications, the act stipulated that nontariff barrier agreements entered into under this statute could only enter into force if Congress passed implementing legislation.”).
【20】Id. (“Some in Congress, however, argued that subjecting implementing legislation to ordinary congressional debate and amendment procedures would defeat a major purpose for delegating trade agreements authority to the President in the first place—to reduce the special interest pressures inherent in trade policymaking.”).
【21】Id. (“Many Members also recognized an important potential problem: that U.S. trading partners would be reluctant to negotiate agreements that would be subject to unlimited congressional debate and amendment.”).
【22】19 U.S.C. § 2191.
【24】19 U.S.C. §§ 3804(a) & 3807.
【25】19 U.S.C. § 3805.
【26】Cooper, supra note 15 (“In exchange, Congress required the executive branch to consult with relevant committees during the negotiations and to notify Congress 90 calendar days before signing an agreement. The act also provided for the accreditation of 10 Members of Congress as advisers to the U.S. delegation of negotiators.”).
【27】J.F. Hornbeck & William H. Cooper, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy, Congress Research Service Report for Congress, April 7, 2011 (“Importantly, Congress has been explicit that the fast track procedures “are enacted as an exercise of the rulemaking power of the House and the Senate, with the recognition of the right of either House to change the rules at any time.” This provision is one of many that conveys a congressional priority in controlling the approval and implementation of trade agreements.”).
【28】Smith, Shedd & Murrill, supra note 11 (“U.S. trade agreements such as the North American Free Trade Agreement (NAFTA), World Trade Organization agreements, and bilateral free trade agreements (FTAs) have been approved by majority vote of each house rather than by two-thirds vote of the Senate—that is, they have been treated as congressional-executive agreements rather than as treaties.”).
【29】H.R. 3830 (113th): Bipartisan Congressional Trade Priority Act of 2014; S. 1900 (113th): Bipartisan Congressional Trade Priority Act of 2014.
【30】The Guardian, Unions Oppose Free Trade Deal 20 Years After Loosing Battle to Stop NAFTA, January 13, 2015 (“Up to now, Congress has shown little inclination to grant Obama trade promotion authority powers – called “fast track” – that allow only yes-or-no votes on trade agreements with no amendments permitted.”).
【31】BBC, ‘Fast Track’ Trade Bill Passes US Senate and Awaits Obama Nod, June 25, 2015, http://www.bbc.com/news/world-us-canada-33265241 (last visited June 09, 2016).
【32】Hornbeck & Cooper, supra note 27 (“Through TPA/fast track, in its various iterations, Congress has sought to achieve four major goals in the context of supporting trade negotiations: (1) to define trade policy priorities and to have those priorities reflected in trade agreement negotiating objectives; (2) to ensure that the Executive Branch adheres to these objectives by requiring periodic notification and consultation; (3) to define the terms, conditions, and procedures under which the President may enter into trade agreements and under which the respective implementing bills are approved; and (4) to reaffirm Congress’s overall constitutional authority over trade by placing limitations on the trade agreements authority.”).
【33】Cooper, supra note 15 (“TPA reflects decades of debate, cooperation, and compromise between Congress and the executive branch in finding a pragmatic accommodation to the exercise of each branch’s respective authorities over trade policy”).