Congressional-executive Agreements Research Articles

Inferior Domestic Treaty Institutions Lead to Less Democracy and Security: The Case of the United States

ABSTRACT At present, the United States institution handling international agreements is replete with uncertainty about the precise role of different branches of the government and the rules government actors are to follow. The result is inferior democratic rule and a worse bargaining position in world affairs. This article surveys the institution’s current problems with treaties, congressional-executive agreements, and sole executive agreements. It explains the judicial response and why historical practice has not led to a resolution, but an exacerbation of problems. It lays out the costs of these problems and articulates how cementing the Senate’s role in agreements would greatly augment both democarcy and security.

Congress's Power to Constrain Presidential Withdrawal from International Agreements: A Working Paper

This working paper aims to assess the tools available to Congress to restrict or constrain the President’s capacity to withdraw from international agreements. Many assume that Congress has little or no power to restrict withdrawal from treaties and, in practice, that has proven largely true. But this paper tries to explore more fully whether there any ways in which Congress can act — either in advance or in the moment — to restrict, slow, or even stop withdrawal. The paper is organized according to the ways in which the United States makes international commitments: (1) Article II Treaties; (2) Congressional-Executive Agreements; (3) Sole Executive Agreements; and (4) Non-Binding Commitments (which are not, technically speaking international agreements, but nonetheless are worthy of consideration given their growing prominence in the U.S. diplomatic sphere). The paper briefly assesses each in turn.

Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements

AbstractScholars have argued that Senate-approved treaties are becoming increasingly irrelevant in the United States, because their role can be fulfilled by their close but less politically costly cousin, the congressional-executive agreement. This study demonstrates that treaties are more durable than congressional-executive agreements, supporting the view that there are qualitative differences between the two instruments. Abandoning the treaty may therefore lead to unintended consequences by decreasing the tools that the executive has available to design optimal agreements.

Samsons or Methuselahs? The (Potential) Virtue of Article II Treaties

Why does Wüsthof sell a fancy kitchen knife for US$2000, but mass-produce something similar for US$100? Why do some of us mail holiday cards, while sending anything similar by email? Why does the American Journal of International Law print its journal, when interested readers—and there should be many—can read articles like Julian Nyarko's “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements” online? Come to think of it, why bother with Article II treaties, when they too have a near substitute, more easily produced, in congressional-executive agreements? On this last question, Nyarko's article offers an interesting approach and an intriguing finding: if we measure the commitment strength of agreements in terms of duration, treaties are measurably longer and, perhaps, stronger. Having spent several years working on treaty issues for the Restatement (Fourth) of the Foreign Relations Law of the United States, I am acutely (and perhaps embarrassingly) interested in finding out why they matter. In this essay, I note some misgivings about how the article reckons the substitutability of agreements and about treating their age as a proxy for strength—perhaps Methuselah rivaled Samson's might at some point, but that was not how he distinguished himself—before closing by trying to imagine rival inferences that might be consistent with Nyarko's valuable insights.

Exiting Congressional-Executive Agreements

Some commentators have argued that, even if the President has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the President lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This paper challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this paper contends, there is no compelling reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice, and, thus, for example, either instrument can be used to address matters relating to international commerce and trade. Moreover, while presidents do not have the authority to unilaterally terminate statutes, congressional-executive agreements are not mere statutes; they are, like Article II treaties, binding international instruments that can be concluded by the United States only through presidential action. These agreements also typically contain withdrawal clauses similar to the ones contained in Article II treaties that presidents have long claimed the authority to invoke unilaterally, and Congress has never indicated that it views presidents as having less withdrawal authority for such agreements. Indeed, in its trade legislation, Congress appears to have accepted that presidents may invoke such clauses unilaterally.

Power to Terminate U.S. Trade Agreements: The Presidential Dormant Commerce Clause versus an Historical Gloss Half Empty

The U.S. Constitution does not explicitly allocate authority to terminate treaties made pursuant to the Treaty Clause or as congressional-executive agreements. All modern trade treaties of the U.S. are made as congressional-executive agreements. The conventional wisdom among a number of U.S. foreign relations law scholars, as evidenced by the Restatement (Third) of Foreign Relations Law, is that, while congressional or Senate participation is required to make these treaties, the President has the independent power to terminate them. This position, while it may be correct as it pertains to treaties in other fields, takes insufficient account of the fact that, under the Commerce Clause, commerce is an area of exclusive congressional power. This paper argues that the exclusive congressional power over commerce is inconsistent with independent Presidential authority to terminate trade agreements. It also examines existing statutory authority for entry into and operation of trade agreements, and finds no statutory authority for the President to terminate trade agreements. Therefore, the President lacks authority, without new authorization from Congress, to terminate existing trade agreements.

CARÁCTER Y ALCANCE DE LOS ACUERDOS INTERINSTITUCIONALES EN EL SISTEMA JURÍDICO MEXICANO

The interinstitutional agreements are provided in the Act on the Conclusion of Treaties of 1992. A large part of the Mexican doctrine on international law makes a number of considerations will disagree with this article; for example, interagency agreements are: a Mexican version of the congressional-executive agreements; comparable to international treaties or in one way or another are regulated by international law; materials that can have any legal effect; etc. Also, we deal here to analyze the Bill on General Conclusion and Approval of Treaties, in order to establish whether this proposed law solves the problematic nature of existing laws on the subject or not.

Historical Gloss and the Separation of Powers

Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that is viewed as critical to giving historical practice the force of law. Yet the concept of acquiescence has been treated much too casually in the literature. Claims about acquiescence are typically premised on a Madisonian conception of interbranch competition, pursuant to which Congress and the Executive Branch are each assumed to have the tools and the motivation to guard against encroachments on their authority. It has become apparent from political science scholarship, however, that the Madisonian model does not accurately reflect the dynamics of modern congressional-executive relations. This requires a reexamination of the premises and implications of the idea of institutional acquiescence in particular, and of the role of historical practice more generally. Ultimately, we argue, the problems with the Madisonian model are not fatal to crediting historical practice in interpreting the separation of powers. But they do require more attention to the reasons why such practice is invoked, the extent to which the reasons demand institutional acquiescence, and the precise method by which such acquiescence is identified. To illustrate the importance of each of these questions, we present three case studies of constitutional debates concerning the separation of powers in which practice-based arguments are prominent - war powers, congressional-executive agreements, and removal of executive officers.

Treaties' End: The Past, Present, and Future of International Lawmaking in the United States

Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative, historical, and policy lenses. U.S. international lawmaking is currently haphazardly carved up between two tracks of international lawmaking, with some areas assigned to the Treaty Clause route, others to the congressional-executive agreement route, and many uncomfortably straddling the two. Moreover, the process for making international law that is outlined in the U.S. Constitution is close to unique in cross-national perspective. To explain how the United States came to have such a haphazard and unusual system, this Article traces the history of U.S. international lawmaking back to the Founding. The rules and patterns of practice that now govern were developed in response to specific contingent events that for the most part have little or no continuing significance. The Treaty Clause process is demonstrably inferior to the congressional-executive agreement process as a matter of public policy on nearly all crucial dimensions: ease of use, democratic legitimacy, and strength of the international legal commitments that are created. Thus, this Article concludes by charting a course toward ending the Treaty Clause for all but a handful of international agreements. By gradually replacing most Article II treaties with ex post congressional-executive agreements, policymakers can make America's domestic engagement with international law more sensible, effective, and democratic.international law more sensible, more effective, and more democratic.

The Law: The Constitutionality of Congressional‐Executive Agreements

The limited attention to international agreements in the Constitution has created a void that has left students of American jurisprudence with little direction as to which situations require a Senate‐ratified treaty and which situations can be dealt with by other agreements. The scant attention devoted to international agreements in the Constitution has led to debates over the constitutionality of nontreaty agreements. One type of agreement that has generated a good deal of debate is the congressional‐executive agreement‐an international agreement concluded by the executive branch and authorized or approved by legislation enacted by both houses of Congress. A review of two recent cases, coupled with an independent analysis of the historical practices and legal precedents regarding nontreaty agreements, leads to the conclusion that constitutional‐executive agreements are legally permissible.

The Law: The Constitutionality of Congressional-Executive Agreements

The limited attention to international agreements in the Constitution has created a void that has left students of American jurisprudence with little direction as to which situations require a Senate-ratified treaty and which situations can be dealt with by other agreements. The scant attention devoted to international agreements in the Constitution has led to debates over the constitutionality of nontreaty agreements. One type of agreement that has generated a good deal of debate is the congressional-executive agreement-an international agreement concluded by the executive branch and authorized or approved by legislation enacted by both houses of Congress. A review of two recent cases, coupled with an independent analysis of the historical practices and legal precedents regarding nontreaty agreements, leads to the conclusion that constitutional-executive agreements are legally permissible.

Signaling Behavior, Congressional-Executive Agreements, and the SALT I Interim Agreement

This Article, using a law and behavioral economics perspective, carves out a exception to the general rule that Presidents must ratify national security accords as treaties and international trade accords as congressional-executive agreements. Under this signaling exception, the President can submit national security accords as congressional-executive agreements when 1) the accord is temporary, and 2) the accord signals that the United States has engaged in learning behavior (as described in the political science literature) about the nature of international affairs. Signaling behavior is particularly common in temporary agreements. The interim nature of such agreements allows the United States to signal incremental trust in its counterparties while hedging its risk. Using the SALT I accords as a case study, this Article locates the President's power to signal in the well-accepted sole communication power, which, under the signaling exception, trumps the Senate's right to advise and consent when the accord in question contains a disproportionate signaling component vis-a-vis its substantive, bargained-for component. Presidents could thus send signals in the form of sole executive agreements or congressional-executive agreements. The Constitution requires the latter vehicle because signals display network effects; they become more credible to foreign powers, and hence more valuable, with congressional support.

Treaties, Executive Agreements, and Constitutional Method

Foreign relations law presents a particularly fertile field in which to explore constitutional dynamics. This article uses the recent debate over the constitutional interchangeability of Article II treaties (requiring supermajority approval of the Senate) and congressional-executive agreements (approved with a bicameral majority) as a case study in constitutional method. The article first critiques arguments by Laurence Tribe, who on a textual basis argues the constitutional illegitimacy of the North American Free Trade Agreement and the World Trade Organization Uruguay Round, both approved as congressional-executive agreements; and by Bruce Ackerman and David Golove, who assert their constitutionality in all cases as grounded in a constitutional moment following World War II. This article argues that the constitutionality of congressional-executive agreements can be established, but only at the end of an accretive historical practice and only in a narrow range of substantive contexts. In contrast to Tribe, the article demonstrates the constitutionality of congressional-executive agreements; in contrast to Ackerman and Golove, it denies the full interchangeability of congressional-executive agreements with treaties. The article uses post-war developments to show that the congressional-executive agreement form is acceptable in some contexts (with respect to trade agreements, where it may in fact be mandatory) and not in others (most notably with respect to arms control agreements, where the Senate has maintained an institutional opposition to submitting such agreement via any route other than Article II). The article uses this case study to pose a model of constitutional increments. In contrast to the moments approach, the increments model accepts the evolutionary, episodic development of constitutional norms. The model offers four metrics for assessing the constitutional significance of any particular constitutional episode: acceptance by relevant actors, including non-judicial and, in some cases, non-governmental actors; the degree of contestedness evidenced in an episode (the more contested a principle, the greater significance afforded the resolution of that contest); the age of the episode (older episodes being less significant, at least as unsupported by more recent practice); and the pedigree of the principle for which the episode is offered. This model, the article asserts, offers greater constitutional determinacy than competing models of constitutional development. The model also better advances the central normative virtue of constitutionalism, namely of facilitating recognition of long-term community aspirations through the constraint of shorter-term continuity.

Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements

This article seeks to resolve the debate over the use of a statutory method for approving international agreements in place of the supermajority process required by the Constitution's Treaty Clause. These congressional-executive agreements, which require only simple majorities in Congress and presidential signature, have become the instrument of choice for entry into some of the nation's most significant international obligations, such as the WTO and NAFTA. Some, such as Bruce Ackerman and David Golove argue that statutes and treaties are interchangeable because a constitutional moment occurred at the end of World War II (in which We the People non-textually amended the Constitution to allow this alternate process). Their critics, such as Laurence Tribe, suggest that the text and structure of the Constitution forbids the use of a statutory method to enter into significant international agreements. Standard foreign relations law doctrine, by contrast, consistently has defended interchangeability, but with little success at explaining how interchangeability is consistent with the constitutional text and structure. This Article provides a constitutional justification for the congressional-executive agreement, one consistent with the text, structure, and history of the Constitution. It shows a clear dividing line that demarcates the situations in which treaties must be the sole instrument of national policy, and those that can be dealt with by the congressional-executive agreement. This Article articulates a theory of treaties that explains the record of practice by the political branches, rather than making normative claims derived simply from different theories of constitutional interpretation. Practice suggests that complete interchangeability ought to be rejected because it creates severe distortions in the American public lawmaking system. Allowing statutes to completely replace treaties eliminates the restrictions upon Congress's enumerated powers and undermines the separation of powers in foreign affairs. Nonetheless, congressional-executive agreements still have a legitimate place in the constitutional conduct of foreign policy, because their use preserves Congress's constitutional powers over matters such as international commerce. Treaties still retain a vital role by allowing the nation to enter into agreements that regulate matters outside of Congress's enumerated powers. Congressional-executive agreements allow the political branches to maintain a separation between treatymaking and lawmaking at a time when the distinction between international and domestic is rapidly disappearing.

Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements

This article seeks to resolve the debate over the use of a statutory method for approving international agreements in place of the supermajority process required by the Constitution's Treaty Clause. These agreements, which require only simple majorities in Congress and presidential signature, have become the instrument of choice for entry into some of the nation's most significant international obligations, such as the WTO and NAFTA. Some, such as Bruce Ackerman and David Golove argue that statutes and treaties are interchangeable because a moment occurred at the end of World War II (in which We the People non-textually amended the Constitution to allow this alternate process). Their critics, such as Laurence Tribe, suggest that the text and structure of the Constitution forbids the use of a statutory method to enter into significant international agreements. Standard foreign relations law doctrine, by contrast, consistently has defended interchangeability, but with little success at explaining how interchangeability is consistent with the constitutional text and structure. This Article provides a constitutional justification for the congressional-executive agreement, one consistent with the text, structure, and history of the Constitution. It shows a clear dividing line that demarcates the situations in which treaties must be the sole instrument of national policy, and those that can be dealt with by the congressional-executive agreement. This Article articulates a theory of treaties that explains the record of practice by the political branches, rather than making normative claims derived simply from different theories of constitutional interpretation. Practice suggests that complete interchangeability ought to be rejected because it creates severe distortions in the American public lawmaking system. Allowing statutes to completely replace treaties eliminates the restrictions upon Congress's enumerated powers and undermines the separation of powers in foreign affairs. Nonetheless, congressional-executive agreements still have a legitimate place in the constitutional conduct of foreign policy, because their use preserves Congress's constitutional powers over matters such as international commerce. Treaties still retain a vital role by allowing the nation to enter into agreements that regulate matters outside of Congress's enumerated powers. Congressional-executive agreements allow the political branches to maintain a separation between treatymaking and lawmaking at a time when the distinction between international and domestic is rapidly disappearing.