Abstract
When I finished reading Julian Nyarko's “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements,” I found my mind wandering through memories of the more than five years I spent working on Capitol Hill as Counsel for the Senate Foreign Relations Committee (SFRC)—a role that often required me to figure out how best to preserve the constitutional prerogatives of Congress in the face of the various types of international agreements the executive branch produced. This essay recounts my impressions of how the Senate handled different agreements in the 2013–2018 timeframe—Article II treaties, the Paris Climate Agreement, and the Iran Nuclear Agreement. Unlike Professor Nyarko's ambitious and impressive work to categorize and statistically analyze the durability of Article II treaties and executive agreements—which I applaud and find useful—this essay is modest in purpose. I contend that how Congress handles different types of agreements is largely a product of specific political dynamics—including political ownership, policy entrepreneurism, and electoral risk—that can be unpredictable. Because of these dynamics, the differences that Nyarko reveals regarding the durability of Article II treaties and executive agreements are unlikely to produce a significant change in official practice.
Highlights
When I finished reading Julian Nyarko’s “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements,” I found my mind wandering through memories of the more than five years I spent working on Capitol Hill as Counsel for the Senate Foreign Relations Committee (SFRC)—a role that often required me to figure out how best to preserve the constitutional prerogatives of Congress in the face of the various types of international agreements the executive branch produced
Even before I showed up in the offices of the SFRC in February 2013, a toxic stage had been set for Senate consideration of treaties
Just a few months before, former Senator Bob Dole had been wheeled onto the floor of the United States Senate to witness a victorious vote—or so he thought—to consent to ratification of the UN Convention on the Rights of Persons with Disabilities
Summary
Even before I showed up in the offices of the SFRC in February 2013, a toxic stage had been set for Senate consideration of treaties. ThenSecretary of State John Kerry asked the new chairman to take another run at Senate approval—perhaps it would be possible to put the opposing arguments to rest by addressing them squarely in the resolution of advice and consent. We launched another all-out campaign to persuade reluctant Republican Senators to vote yes. The amount of effort and political capital it took to push these treaties through the Senate should not go unstated Both the Chairman and the Ranking Member of the committee had to agree to prioritize passage of these treaties—and they did. A group of ten Democratic Senators attended a portion of the Conference of the Parties in Paris to show their support for the negotiations,[2] Congress took no contemporaneous
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