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10/15/2017

Curtis A. Bradley: Exiting Congressional-Executive Agreements
Michael Ramsey

Curtis A. Bradley (Duke University School of Law) has posted Exiting Congressional-Executive Agreements on SSRN.  Here is the abstract:

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.

I think this is basically right as a practical matter, assuming the agreement's implementing legislation does not specifically bar presidential withdrawal.  But it is an interesting conundrum for originalists.  Assume congressional-executive agreements are not authorized by the Constitution's original meaning (my view; see The Constitution's Text in Foreign Affairs, Chapter 10).  In that case, there is literally no original meaning as to the President's ability to withdraw.  How should an originalist approach handle this situation?

One possibility is that, since the agreement is unconstitutional (not authorized by the original meaning), the President is not only allowed but obligated to withdraw (or to seek approval through the treatymaking clause).  This is essentially the argument I made with regard to the Paris Agreement on climate change (an executive agreement, not a congressional-executive agreement).

But maybe congressional-executive agreements are different because (unlike long-term substantive executive agreements) they have been accepted by practice, and so are authorized by political branch precedent (see here on the history).  If originalists regard them as constitutional on this ground, how to handle the termination issue?  History/practice does not provide guidance, because there is no material history of terminating congressional-executive agreements.  So another possibility for originalists is simply to say the original meaning has nothing to say on the matter: Non-originalist political branch precedent makes the agreement constitutional, and neither original meaning nor political branch precedent says anything about termination, so the question must be answered by appeal to some other source of law.

A third possibility, effectively Professor Bradley's solution, is that the matter can be resolved by analogy to treaties.  If a congressional-executive agreement is equivalent to a treaty for constitutional purposes (due to political branch precedent), then its termination provisions should be the same as a treaty.  So an originalist should use the original meaning to find the way treaties could be terminated, and apply that to congressional-executive agreements as well.  (In my view, that means the President can terminate them in accordance with their terms -- six months' notice in the case of NAFTA -- but not otherwise.

Now here's an even trickier question: suppose Congress by statute specifically prohibits the President from withdrawing from a particular congressional-executive agreement.  Is that constitutional?  I assume it would not be constitutional to do this in the case of a treaty (assuming the President has constitutional power to withdraw from treaties).  Professor Bradley's approach would thus seem to say that the hypothetical statute is unconstitutional, by analogy to treaty law.  But I'm less sure that's right.  Surely Congress could direct by statute that the United States will accord Canada and Mexico all the benefits of NAFTA, irrespective of whether the United States is formally a party to NAFTA, so long as Canada and Mexico accord the United States all the benefits of NAFTA.  Is a prohibition of withdrawal different enough to make this the dividing line, especially as the whole area isn't one contemplated by the original meaning?  This does not seem an easy question to answer.