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Executive Agreements Differ From Treaties In That They

Apr 9th, 2021

There is an active scientific debate about the extent of the president`s power to withdraw the United States from its international agreements, with particular emphasis on whether the constitutional barriers to denouncing agreements between Congress and the executive branch are greater than those of the treaty. Footnote 113 The results of this study indicate that in addition to educational issues, an analysis of political economy can also provide valuable lessons. A second hypothesis that relates to some of these restrictions is that the treaty`s high legislative barriers contribute to resolving the commitment problems arising from executive rotation. They argue that strong legislative support, implicit in the treaty mechanism, reassures negotiating partners that the United States will likely work together in the long term, even if administrations change. Footnote 55 This rationale is based on the assumption that senators` preferences are more stable than the preferences of the Speaker, for example because the Senate represents a broader consensus among the voting population, less sensitive to political shocks, footnote 56 or because senators serve longer terms and avoid changing positions to avoid being considered fluctuating. Footnote 57 This would allow other countries to rely more on a treaty promise. 41 id. to 1336 (“Overall, the president will probably have more difficulty withdrawing unilaterally from an agreement between Congress and the executive branch than a Treaty under Article II”).” Some scholars doubt the assertion that presidents can opt out of contracts more easily than agreements between Congress and the executive branch. As Koremenos and Galbraith point out, many agreements in the UN treaty collection have opt-out clauses that would allow a president to legally leave an agreement, regardless of the form in which it was concluded. See Barbara Koremenos, The Continent of International Law: Explaining Agreement Design 124 (2016) (finding that 70% of agreements have withdrawal provisions based on a sample of contract samples in the UN Treaty Collection); Galbraith, supra note 26, at 1720 (arguing that the withdrawal provisions give the successors of the current president a simple opportunity to legally withdraw from a treaty). For doctrinal challenges to the assertion that contracts can be withdrawn more easily, see Bradley, note 36 above.

At the same time, the article raises new questions about the mechanism responsible for extending the validity of contracts. Empirical results suggest that a new scientific focus on this issue and on the political cost of the end of the contract provides fertile ground for broadening our understanding of the practical impact on U.S. policy of choice between treaties and congressional executive agreements. Domestically, the issue of legal substitutability has traditionally been more controversial. Of course, there is little argument that congressional participation can be completely suppressed by replacing the treaty with the single executive agreement. However, views on the interchangeability of contracts and agreements between Congress and the executive branch are less harmonious at the bottom of page 29. The Constitution does not explicitly mention the existence of an instrument similar to the executive agreement of today`s Congress, which gives rise to a debate on how to interpret that silence. For early proponents, it was more than enough to show that interchangeability offers flexibility and best describes the practice of American foreign policy to assert that treaties and executive agreements in Congress should serve as legal substitutes. Footnote 30 The later arguments were based on the idea of the existence of “constitutional moments” that would inform constitutional interpretation through the consistent practice of the President, Congress and the Supreme Court. Footnote 31 Such moments, which were created primarily by practice in the 1940s, would have changed the importance of the contractual clause, which was a constitutional basis for the executive agreement of Congress.

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