The Treaty and Its Rivals
I have posted on SSRN a draft of a forthcoming book chapter, The Treaty and Its Rivals: Making International Agreements in U.S. Law and Practice (forthcoming in Supreme Law of the Land? Debating the Contemporary Effects of Treaties within the Legal System of the United States (Paul Dubinsky, Gregory Fox & Brad Roth, eds., Cambridge University Press 2017)). The volume as a whole features some of the top treaty law scholars in the country, with individual chapters on various aspects of U.S. treaty law from historical and contemporary perspectives.
My contribution traces the rise of alternatives to the Article II treaty from the early post-ratification period, in which Article II treaties dominated, to the modern period, which features a hodgepodge of various forms (sole executive agreement, congressional-executive agreement, executive agreement with implicit congressional approval, nonbinding agreement). I'm much indebted to others who have told the story before (especially Oona Hathaway, Bruce Ackerman and David Golove) -- but my account is shorter, and significantly more sympathetic to Article II treaties (as the form expressly designated in the Constitution).
Here is the abstract:
This Chapter describes the evolution of the constitutional power to make international agreements in U.S. law. Reading only the Constitution’s text, one might suppose the constitutional regime for making international agreements in the United States to be quite straightforward. Article II, Section 2 states that the President has power to make treaties with the advice and consent of the Senate, provided two-thirds of the Senators present concur. Article VI provides that all treaties made under the authority of the United States are the supreme law of the land. No provision of the Constitution’s text directly mentions any power by the U.S. government to enter into any sort of international agreement apart from the “treaties” made according to Article II, Section 2 and having the force of Article VI.
For over 100 years, the regime that appears on the face of the text roughly corresponded with reality. The next 100 years, however, transformed U.S. practice regarding international agreement-making to the extent that the Constitution’s text and analyses based upon it wholly fail to capture what actually exists in modern practice. Conventionally, this transformation is described as the rise of two alternate forms of agreements: (1) the sole executive agreement, done by the unilateral authority of the president in areas of the president’s particular constitutional authority (whatever those may be); and (2) the congressional-executive agreement, done with the approval of majorities of both Houses of Congress, and which is said to be fully interchangeable with the Article II, Section 2 treaty as a constitutional procedure.
While accurate in some respects, even this conventional description fails to capture the complexity of modern agreement-making in the United States, and recent trends have contributed to the difficulty of providing a coherent legal and practical account. First, non-treaty agreements have diverse and sometimes unclear sources of authority. In some cases, the president negotiates the agreement and submits it for approval by majorities of both Houses of Congress. For most agreements, the president makes them without any after-the-fact approval from Congress or the Senate. Within this latter category, the president may claim various sources of authority to enter into non-treaty agreements: express statutory authorization from Congress in advance; implied authority from Congress; express or implied authority from a prior treaty; or independent constitutional authority. As a practical matter, it may not always be easy – or even possible – to distinguish among some of these categories. Increasingly, the president enters into international agreements on the basis of informal and often uncertain sources of authority, with uncertain legal effects.
Nonetheless, treaties remain well represented among important agreements, at least in some areas (although making that assessment seems challenging), despite their numerical decline. Likewise, agreements approved after-the-fact by Congress, although relatively small in number, include some of the United States’ most important recent commitments in the area of international trade. Agreements made by the president alone range from trivial diplomatic arrangements to ones of great consequence. There is no satisfactory explanation for why some agreements are made in one way and some in others. This Chapter attempts to sort out the history and modern trends in U.S. agreement making, with a view toward providing a foundation for a constitutional reassessment.
Thanks to the editors -- Wayne State's formidable international law team Paul Dubinsky, Greg Fox and Brad Roth -- for inviting me and to Cambridge University Press for permission to post the draft. I'll note the book as a whole when it is published (publication expected later this year).