Executive Agreements Binding
In recent decades, presidents have often included the United States in international agreements without the advice and approval of the Senate. These are called «executive agreements». Although not subject to Senate approval, executive agreements are still binding on the parties under international law. See Bradford C. Clark, Domesticating Sole Executive Agreements, 93 Va. L. Rev. 1573, 1661 (2007) (arguing that the text and legislative history of the Constitution support the position that treaties and executive agreements are not interchangeable, and also arguing that the supremacy clause should be read in such a way that it generally precludes exclusive executive agreements from taking precedence over existing law); Laurence H. Tribe, Taking Text and Structure Serious: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1249-67 (1995) (arguing that the contractual clause is the exclusive means for Congress to approve major international agreements); John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 Mich.
L. Rev. 757, 852 (2001) (arguing that treaties are the constitutionally required form for Congressional approval of an international agreement on measures outside the constitutional powers of Congress, including matters relating to human rights, political-military alliances and arms control, but not for agreements on measures that fall within the powers of Congress under Art. I of the Constitution, such as international trade agreements); with third restatement, note 1 above, § 303 n.8 («At one point it was argued that certain agreements can only be concluded as contracts in accordance with the procedure laid down in the Constitution … The scientific opinion rejected this view. »); Henkin, note 22 above, at p. 217 («Whatever its theoretical merits, it is now widely accepted that the agreement between Congress and the executive branch is available for broad use, even for general use, and represents a complete alternative to a treaty.»); Hathaway, see note 45 above, at 1244 (asserts that the «weight of scientific opinion» since the 1940s has been in favor of the view that treaties and agreements are interchangeable between Congress and the executive branch); Bruce Ackerman and David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 861-96 (1995) (arguing that developments in World War II changed the historical understanding of the distribution of power in the Constitution among branches of government to make the agreement between Congress and the executive branch a complete alternative to a treaty). The accompanying notes also allow us, for the first time, to identify the judicial authorities cited in support of the agreements. By studying the thousands of citations to judicial authorities in the cover notes, based on the strength of the authority granted to enter into agreements, we can assess how the executive branch invokes the power delegated by Congress to enter into agreements.
We note here that less than half of the cover notes cite an authority that gives the executive explicit and explicit authority to enter into a binding international agreement.15×15. See section II.B.2, pp. 677-91. Almost one-fifth of the notes cite judicial authorities who, in our view, do not support the conclusion of an agreement.16×16. See section II.B.2, pp. 677-91. In addition, cover notes often cite Article II of the United States Constitution as well as other judicial bodies; Little distinction is made between agreements based solely on the constitutional authority of the president and those based on powers granted by Congress or under an earlier treaty. In fact, perhaps the most remarkable thing we have discovered in trying to analyze and describe how the transparency regime works in practice is the disorganization of the system. Several judicial agencies are cited without providing clarity on the central legal basis for reaching an agreement, judicial authorities are not systematically or carefully cited, public databases of agreements are unfortunately absent, and reports to Congress are slow and probably incomplete. A treaty is negotiated by a group of countries, either by an organization created for that specific purpose or by an existing body such as the United Nations (UN) Disarmament Council. The negotiation process can take several years, depending on the subject of the treaty and the number of participating countries.
At the end of the negotiations, the contract will be signed by the representatives of the governments concerned. The terms may require that the treaty be ratified and signed before it becomes legally binding. A Government ratifies a treaty by depositing an instrument of ratification at a place specified in the treaty; The instrument of ratification is a document containing a formal confirmation that the Government accepts the provisions of the Treaty. The ratification process varies according to the laws and constitutions of each country. In the United States, the president can only ratify a treaty after seeking the «advice and approval» of two-thirds of the Senate. The first part of this article describes the legal regime of executive agreements. This begins with the description of the different types of executive agreements and the extent of the executive`s legal power to enter into them. Next, it looks at what we call the «transparency regime» for executive agreements — how Congress has regulated executive agreements, not by requiring agreements to be approved individually after they have been negotiated, but by requiring disclosure to Congress itself and to the public after the agreement was finalized. This review clearly shows that, although Congress has merely delegated the power to issue executive agreements to the executive branch, it has intervened on several occasions to effectively monitor and monitor how that power is used. Because of Chadha, the only forms of accountability for the vast majority of executive agreements are a disclosure requirement for certain agreements and a more comprehensive reporting obligation to Congress.
These are very thin forms of responsibility for such a coherent form of presidential legislation, especially compared to the other important form of delegated executive legislation: administrative by-laws. Unlike regulations, executive agreements are rarely published by the executive before they are concluded. This means that the public cannot consider the merits and potential implications of such an agreement before it becomes law. Another contrast is that the rules applicable to executive agreements do not oblige the executive to inform the public of its legal basis. There is also no institutionalized judicial review after agreements have been concluded to ensure that they are duly authorized and justified.9×9. Compare this with the judicial review granted to the Agency`s actions. For example, in Department of Homeland Security v. Regents of the University of California, 140 pp. Ct. 1891 (2020), the court blocked the Trump administration`s efforts to end a major immigration program because the court considered the efforts «arbitrary and capricious» under the Administrative Procedure Act (APA), 5 U.S.C. §§ 551, 553-559, 701-706; 140 pp.
Ct. around 1915, despite the considerable power of action of the executive in this field. And many agreements are never published, which means that citizens cannot monitor their content and functioning, even after the fact. So far, however, there has been no systematic assessment of the functioning of the transparency regime. This article aims to fill that gap. Through a lawsuit under the Freedom of Information Act, we obtained thousands of documents regarding the agreements reported to Congress and the legal powers on which the executive branch relied for those agreements. In addition to a series of interviews with lawyers directly involved in the process, this new information gave us unprecedented insight into the system for closing, publishing and reporting on management agreements. For the first time, we can describe how the system for creating and reviewing executive agreements actually works – and when and how it doesn`t. The resulting overview is an image of malfunction and disclaimer. .