Why Is the Executive Agreement so Important

The Task Force then proceeded to an open discussion on these and other related issues. These included questions about how Congress could better structure the authorization of laws for executive agreements, steps Congress can take to signal the need for adequate compliance with disclosure and reporting requirements with foreign partners, challenges faced by relevant congressional committees both in overseeing the use of executive arrangements, and factors. which have led to a decline in the use of traditional Article II contracts. Congressional efforts to curb the practice of executive agreements and stem the tide of unilateralism have been largely unsuccessful. The first and most important attempt was in 1951, when Senator John Bricker proposed a constitutional amendment to limit the use and effect of executive agreements and treaties in the United States. Proponents of the Bricker Amendment, including leaders of the American Bar Association, found virtue in the proposal for a variety of reasons. Some «disliked,» as Alexander DeConde explained, «executive deals such as those reached at Yalta» and tried to limit the president`s unilateralism on foreign policy. Others feared the impact of treaties such as the UN Charter, the Genocide Convention and the proposed UN Human Rights Covenant in the United States. Still others have argued it as a useful «isolationist» response to «the internationalism of Franklin Roosevelt and Harry Truman.» Hathaway went on to describe the results of an investigation by the three co-authors into executive agreements and related letters that the executive branch submitted to Congress between 1989 and 2017 and acquired through a Freedom of Information Act request. Their analysis revealed significant flaws in the online publishing regime, as only 31 percent of executive agreements reported to Congress were included in the official online database — far fewer than could be found in comparable private databases. Other problems also arose in the congressional reporting system, as a significant number of cover notes indicated that the executive agreements in question had been submitted late, while private databases contained several thousand such agreements that had never been submitted to Congress. Even more problematic, the letters showed that the legal basis for many executive branch uses of executive contracts was questionable, as less than half indicated explicit legal authority to participate in the executive agreement in question, while 17% cited laws that could not plausibly be interpreted as such authorization. To address these issues, Hathaway argued that Congress could require the executive branch to publish all international agreements and related letters — with specific descriptions of the legal basis for the executive agreement in question — more broadly to allow for greater public oversight, and perhaps limit the use of funds for them or their entry into force until they are published or transmitted.

Or even without legislation, relevant congressional committees could promote public transparency by choosing to publish executive agreements and cover letters they receive, and by requiring authorities in the letters they receive for more details about judicial authorities. «Glen Krutz and Jeffrey Peake`s Treaty Politics and the Rise of Executive Agreements offers a provocative analysis of a neglected issue. His theoretical and empirical questioning of the usual explanation for the growth of executive agreements, his careful analysis of the treaty process in the Senate and when that body can be decisive, and his assessment of the role of the House of Representatives in the treaty process provide important new scholarships for students of the presidency, of Congress and foreign policy. — James M. McCormick, Iowa State University Since 1947, presidents have used Article II treaties and executive agreements interchangeably. The vast majority of all international agreements have taken the form of executive agreements. These include important trade agreements such as the North American Free Trade Agreement (NAFTA), the Canadian Free Trade Agreement and the World Trade Organization (WTO). In the 1930s, presidents increasingly relied on executive agreements. President Franklin D.

Roosevelt signed more than 600 agreements during his four terms. Nevertheless, Roosevelt respected the traditional distinction between treaties and executive agreements. The Attorney General at the time, Robert H. Jackson, informed Roosevelt that when «negotiations involve commitments to the future,» they «are generally subject to ratification by a two-thirds majority of the Senate before determining the future legislative power of the country.» Krutz and Peake remind researchers to see the brilliance and adaptability of the separation of powers system and to reconsider the implications of the president`s use of executive arrangements. By examining the role of the Senate and House of Representatives in implementation, the authors show that executive agreements do not reflect the decline of the system of separation of powers, but represent pragmatic adjustments through coordinated institutions. Krutz and Peake`s examination of the growing use of executive agreements offers a valuable lesson in how the President and Congress have responded to the increasing complexity of foreign relations and adapted to meet the demands of an increasingly complex and interconnected international community. —Victoria Farrar-Myers, University of Texas, Arlington «Krutz and Peake`s book is a welcome addition to the growing literature on president-congressional relations to international agreements, and places another issue at the heart of the `imperial presidency` argument.