Wednesday, December 21, 2016

Executive agreements

Sar Shalom

When the Founders drafted the Constitution, they gave the President wide discretion in foreign policy. One the few constraints on presidential power in foreign policy is that treaties can not become law of land unless ratified by two thirds of the Senate. However, even this restriction is of limited meaning if the President can simply call the accord an executive agreement rather than a treaty. The maneuver of making accords by executive agreement rather than treaty has been in existence since the Washington administration. However, the prevalence of that maneuver, as measured by the ratio of executive agreements to treaties, shot up since World War II, and grew considerably more in the most recent administrations.

While Obama has been particularly aggressive in using executive agreements, having a significantly higher ratio of executive agreements to treaties than the next highest administration, the most notable executive agreement is the JCPOA or the Iran deal. The question this creates is what should be done in terms of defining what may be done through executive agreement and what accords should require the President to negotiate a treaty, with the requirement of Senate approval, in order to reach. A few ideas would be to require a treaty for anything involving the release of government-controlled assets or which conflict with existing statutes. Either of those restrictions would have derailed the Iran deal if they had been in effect because the release of frozen assets or the suspension of statutory sanctioned would have triggered a requirement to seek a treaty which would have required affirmative Senate approval to enact rather than simply upholding a veto to prevent its non-enactment. Any other ideas about what should be the division between executive agreement and treaty?


  1. Many treaties we call treaties are never ratified appropriately. We say we signed on and in theory we do but they are never ratified. I suspect that's because either no one cares very much or, from a legal perspective they want an exit strategy.

    Here are 10

    Here are 7 - some are duplicates

    Here is a longer list from Wiki

  2. This is a legal question that I am not the least bit qualified to answer.

    "a treaty for anything involving the release of government-controlled assets or which conflict with existing statutes."

    That sounds reasonable to me, but this is really what we need Kontorovich for.

    In any case, I was certainly of the belief that Obama skirted the treaty requirements through simply calling it by other names. Unfortunately, if a qualified attorney were to question me on the matter I could not verify my suspicion.

    1. What exists now is a matter of law. However, I'm not writing about what exists now. As of now, there is probably no restriction on what can be done by means of executive agreement other than the realization that a future administration could reverse it with a signature of a pen.

      What I'm writing about is what ought to be. It is possible that the Constitution would prohibit Congress from passing a statute like my suggestion, but even then, the Constitution could be amended to authorize such statutes. A lawyer Kontorovich, as would a historian of statecraft, would have considerable input into what would be wise to include in the restrictions on executive agreements, or if any such restrictions would be practicable.

  3. Moreover, Obama's claims that his edict banning offshore drilling are permanent unto the end of time are nonsense. He's not a god-king.