Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft-law commitments. Scholars of foreign relations law typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich understanding of the various processes for making international commitments and of the circumstances under which a particular process will be used. This approach also has important implications for separation-of-powers concerns. From a constitutional-law perspective, the rise of international commitments outside the Treaty Clause registers as an unvarnished increase in presidential power. Factoring in international law and administrative law reveals a far more nuanced reality. While direct congressional checks on presidential power have weakened, alternative checks have arisen from administrative agencies, the international legal structure, and even to some degree from US states. This Article describes the reconfigured landscape of checks and balances, which are spread across the negotiation, domestic approval, and implementation of international commitments. It then offers a qualified normative defense of this system and proposes several structural and doctrinal improvements. The Article closes with a case study applying its approach to the 2015 Paris Agreement on climate change.
In his farewell address, George Washington urged that “[t]he great rule of conduct for us in regard to foreign nations is . . . to have with them as little political connection as possible.”1 This advice illustrates just how wide a gap exists between the world of the Founders and the present day. No longer a small nation struggling for respect, the United States now does not and could not manage its affairs in the absence of strong international cooperation. It has countless ongoing international commitments and continues to pursue new ones.2 During the Obama administration, the United States joined the New START treaty on arms control, the Basel III accords on international financial regulation, the Iran deal regarding nuclear nonproliferation, the Paris Agreement addressing climate change, and numerous lower-profile commitments. The Trump administration is more skeptical of international cooperation and has already announced its intent to withdraw from the Paris Agreement. Yet it too may well end up making or revising at least some important commitments.3
A striking feature of these international commitments is the diversity of legal pathways by which the United States joins them. The Treaty Clause of the Constitution empowers the president to make treaties with the advice and consent of two-thirds of the Senate.4 This is the only way to enter into international commitments that is specified in the Constitution, and yet today international commitments are routinely reached in other ways. Of the four commitments named above, only one—the New START treaty—has gone through the process set out in the Treaty Clause.5 The others have all followed different paths. Basel III is nonbinding as a matter of international law and is being implemented by administrative agencies through powers delegated to them under the Dodd-Frank Wall Street Reform and Consumer Protection Act6 and preexisting statutes.7 The Iran deal is also nonbinding as a matter of international law, and the executive branch can meet the US commitments under it by deploying previously delegated statutory authority.8 The Paris Agreement is binding under international law and took effect without any specific congressional approval, although the Obama administration intended to tie its implementation to previously delegated administrative authority.9 A fifth major agreement negotiated by the Obama administration—the Trans-Pacific Partnership (TPP)—would have required approval and implementation by congressional legislation but has since been abandoned by the Trump administration.10 Collectively, these examples illustrate that the US process for making international commitments has become multifaceted rather than unitary.
Scholars of foreign relations law typically break down US participation in international agreements into three main categories: treaties entered into pursuant to the Treaty Clause, congressional-executive agreements, and sole executive agreements.11 Congressional-executive agreements “are concluded by the president with either the advance authorization or subsequent approval of a majority of both houses of Congress.”12 Sole executive agreements “are concluded by the president alone.”13 This three-part categorization is long-standing—dating back at least to the 1920s—and has become “Lesson I of Foreign Relations Law 101.”14 Yet its usefulness is increasingly questionable. In a speech given during his tenure as State Department Legal Adviser, Professor Harold Koh criticized this framework as a “procrustean construct,” observing that international agreements often “do not fall neatly into any of these boxes.”15 This three-part categorization also takes account only of agreements that are binding under international law and thus does not cover purely nonbinding commitments, even those as important as Basel III or the Iran deal.
The emphasis on these three categories is problematic for a deeper reason, as well. It frames the process of making international commitments using the lens of constitutional law. The very names “congressional-executive agreements” and “sole executive agreements” evoke Articles I and II, and most scholarship engaging with these categories has focused on the extent to which the Constitution permits their use.16 But as important and foundational as this constitutional question indisputably is, there are other questions that one should ask, including: How does the United States decide which form of international commitment it will use? And what structural checks and balances operate in the current system? Answering these questions from a constitutional-law perspective will at best give rise to only partial answers, and at worst may give rise to misleading ones.
This Article explores the multiple pathways available for making international commitments. To understand the structural landscape in which they exist, we must take into account three strands of law—not just constitutional law, but also international law and administrative law. Each strand plays a crucial role in shaping how the United States makes international commitments. The structure of the international legal system both encourages the use of multiple pathways and affects what pathways are available in particular contexts. Constitutional law places meaningful doctrinal limits on the available pathways, although these limits now have more force with regard to how international commitments are implemented than with regard to how they are made in the first place. Perhaps most significantly, administrative law influences the choice of pathways by affecting how international commitments can be implemented, by underlying the State Department’s internal process for determining which pathway to pursue in a given context, and by shaping who is at the negotiating table for the United States.
This approach has important implications for separation-of-powers concerns. From the vantage point of constitutional law, the rise of myriad paths for making international commitments amounts to an unvarnished win for presidential power. The president has the power to choose which pathway to domestic approval to pursue for an international commitment, conditional on the use of this pathway being deemed constitutional. The more constitutionally permissible options there are, the more the president can evade the democratic and deliberative check of legislative review. As the Obama administration increasingly favored bypassing the subsequent approval of the Senate or Congress for international commitments, claims of presidential unilateralism followed quickly. “That’s outrageous, and it’s unlawful. And it’s a clear example of the executive overreach in the area of foreign affairs,” said the convener of a congressional hearing on the administration’s decision to join the Paris Agreement without going to the Senate.17
When all three strands of law are taken into account, the structural landscape looks quite different. For international law and administrative law have also given rise to constraints on presidential power. These constraints are ones that the Framers did not foresee, and yet they further James Madison’s goal of “contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”18 These constraints arise at all stages of an international commitment—negotiation, domestic approval, and implementation. Some of these constraints are independent of the constitutional constraints, but others have their strongest bite at times when the constitutional constraints are the weakest. In other words, the more the president seeks to bypass the Senate and Congress, the more he or she is likely to run up not only against constitutional concerns, but also against alternative constraints arising from international and administrative law and from institutions empowered by these bodies of law—including international organizations, administrative agencies, and occasionally even US states. The president’s power with respect to international commitments is thus not the power to avoid constraints entirely. Rather, it is the power to choose between different types of constraints.
The Paris Agreement exemplifies the structural claims made in this Article. From the perspective of constitutional limits on the approval process, it was a textbook example of unchecked presidential power. It was also a signature foreign policy achievement of President Barack Obama: in his words, a “historic” and “ambitious” agreement that will “establish[ ] the enduring framework the world needs to solve the climate crisis.”19 Yet while his predecessors accepted the need to take the two prior major multilateral agreements on climate to the Senate, Obama joined the United States to the Paris Agreement without seeking specific legislative approval—and did this precisely because such approval would not have been forthcoming.
From a broader perspective, however, the Paris Agreement reveals constraint upon constraint. Partly to avoid constitutional issues related to approval, the Obama administration had to accept strong checks in relation to the Agreement’s negotiation and implementation. In the negotiations, the executive branch had to operate within the limits arising from the international legal process, including a requirement of consensus, and yet persuade other nations to craft an agreement that satisfied its constitutional concerns. This process was so fraught that even in the final moments the negotiations almost broke down over a single word.20 During these negotiations, the executive branch also had to ensure that the resulting agreement could be implemented domestically through authority previously delegated by the Clean Air Act21 to the Environmental Protection Agency (EPA) and the states. This in turn required US negotiators to tie their negotiating position to the scope of the Clean Air Act, to involve the EPA in the negotiating process, and to pay close attention to underlying principles of administrative law and federalism. And as challenging as the negotiation of the Paris Agreement was for US negotiators, its future presents even more difficulties. President Donald Trump has already announced that he intends to withdraw the United States from the Paris Agreement, although this may not be his final word on the subject.22 And even if the United States were to remain in the Paris Agreement, there would still be much to be worked out both internationally through the process that governs further negotiations and domestically in terms of practical implementation. Overall, the story of the Paris Agreement illustrates both the reach and the limits of the president’s power to make international commitments.
This Article’s descriptive account of the current system for making international commitments stands apart from the desirability of this system from a normative perspective. On the normative question, this Article goes on to offer a qualified defense of the current system. This system strikes a reasonable balance between two related problems of our contemporary governmental landscape: presidential overreaching and legislative inaction. As to presidential overreaching, it incorporates a set of constraints that reduce the risks of abuses of power. As to legislative inaction, it provides the executive branch with alternatives to obtaining specific approval from the Senate or Congress, while folding in alternative forms of democratic accountability. In general, the rise of the current system is broadly faithful to other developments within public law, including the way in which administrative-law values have come to complement and sometimes substitute for constitutional principles.
The normative claims of this Article, if accepted, in turn have implications for several ongoing structural and doctrinal debates within the field of foreign relations law. One implication is that we should resist calls for sweeping changes to the process of how the executive branch makes international commitments, although some refinements would be beneficial. A second is that the Senate and Congress would do well to reduce the barriers to specific legislative approval that currently exist in order to give the executive branch more incentives to pursue traditional paths to approval. A third implication is that courts should be cautious in crediting certain strong claims of presidential power, including claims that the president and his or her agents have exclusive power to communicate with foreign governmental actors and claims that international commitments made solely by the executive branch have the power to preempt state law.
The rest of the Article develops the arguments summarized above. Part I describes how constitutional law, international law, and administrative law each contribute to the reconfigured landscape of international commitments. Part II explores the role that presidential power plays under this framework and discusses the rise of a diffuse yet robust set of checks on this power. Part III offers a qualified defense of the existing system and proposes several doctrinal improvements. Finally, Part IV illustrates the claims made in this Article through a case study of the Paris Agreement.
Two caveats to this Article require particular mention. First, in describing international law and administrative law as sources of growing checks on presidential power, this Article does not seek to imply that they operate in the same way or to the same degree. As a general matter, international law tends to operate more as an independent check on presidential power, and administrative law tends to operate more as a substitute for constitutional checks—but both the strength of these checks and their degree of interconnection to constitutional checks are highly dependent on context. Second, this Article focuses on describing and evaluating the current landscape rather than on dating its various features. The origins of alternatives to the Treaty Clause lie deep in our constitutional history, and modern international and administrative law began to influence the process by which the United States joins international commitments by at least the end of World War II. Regardless of whether the choices made by the Obama administration are characterized as incremental developments or seismic shifts, they illustrate the importance of all three strands of law for the process by which the United States joins international commitments. That administration’s commitment to global engagement, the partisan gridlock in Congress, and the increased importance of international regulatory cooperation together put international commitments made without the explicit approval of the Senate or Congress at the center of US foreign policy.
Looking ahead, the template created by the Obama administration may not get much use during the Trump administration. To date, Trump appears more focused on undoing international commitments than on making new ones—and his actions make clear to the international community just how fragile international commitments made without the Senate or Congress can be. But it is early in his term, and the creation or revision of other international commitments may lie ahead of him. Still further ahead, future presidents interested in pursuing international cooperation will likely find the precedents from the Obama administration to be compelling, especially as legislative approval for international commitments will remain difficult to get in the absence of structural reforms. The international commitments of the Obama administration thus merit close scrutiny not only on their own account but also for the future.
- 1. George Washington, Farewell Address of Sept 17, 1796, in James D. Richardson, ed, 1 A Compilation of the Messages and Papers of the Presidents 205, 214 (Bureau of National Literature 1897).
- 2. Because this Article focuses on how the United States participates in international commitments, all references to “international commitments,” “international agreements,” and “treaties” refer to those involving the United States (unless otherwise specified). I use “international commitments” broadly to cover formalized exchanges of promises by the United States and one or more other nations, regardless of whether these promises are binding under international law. I use “international agreements” more narrowly to refer to instruments that contain commitments that are binding as a matter of international law. I use “treaties” still more narrowly to refer to agreements that go through the process set out in the Treaty Clause.
- 3. See Statement by President Donald J. Trump on Signing the “Countering America’s Adversaries through Sanctions Act” (White House Office of the Press Secretary, Aug 2, 2017), archived at http://perma.cc/Q9TG-P5HT (stating that “[a]s President, I can make far better deals with foreign countries than Congress”).
- 4. US Const Art II, § 2, cl 2.
- 5. See Senate Resolution of Advice and Consent to the New START Treaty with the Russian Federation, 111th Cong, 2d Sess, in 156 Cong Rec 23472 (Dec 22, 2010).
- 6. Pub L No 111-203, 124 Stat 1376 (2010).
- 7. See Jean Galbraith and David Zaring, Soft Law as Foreign Relations Law, 99 Cornell L Rev 735, 784–87 (2014).
- 8. See Jack Goldsmith, Why Congress Is Effectively Powerless to Stop the Iran Deal (and Why the Answer Is Not the Iran Review Act) (Lawfare, July 20, 2015), archived at http://perma.cc/GB4U-SC5A.
- 9. See Senior State Department Official on the Paris Agreement Signing Ceremony (US Department of State, Apr 20, 2016), archived at http://perma.cc/VK2Y-JWMD; Juliet Eilperin, Obama Hails ‘Historic’ Ratification of Paris Climate Agreement (Wash Post, Oct 5, 2016), archived at http://perma.cc/JKY8-FE2R.
- 10. See Statement by the President on the Signing of the Trans-Pacific Partnership (White House Office of the Press Secretary, Feb 3, 2016), archived at http://perma.cc/J5BY-34N5; Presidential Memorandum regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement (White House Office of the Press Secretary, Jan 23, 2017), archived at http://perma.cc/6FCM-A36J.
- 11. For coverage in leading treatises, see, for example, Curtis A. Bradley, International Law in the US Legal System 31–95 (Oxford 2013); Louis Henkin, Foreign Affairs and the United States Constitution 175–224 (Oxford 2d ed 1996); Restatement (Third) of the Foreign Relations Law of the United States § 303 (1987). In these and other sources, there are several variations on the overall terminology—for example, sole executive agreements are sometimes called presidential agreements, and congressional-executive agreements and sole executive agreements are sometimes collectively referred to as executive agreements. An additional category, which scholars frequently note but tend to treat more briefly, is that of agreements entered into by the executive branch that are authorized by a preexisting treaty.
- 12. Bradley, International Law at 75 (cited in note 11).
- 13. Id.
- 14. Harold Hongju Koh, Remarks: Twenty-First-Century International Lawmaking, 101 Georgetown L J 725, 726 (2013). For the origins of the categorization, see Part I.A.
- 15. Id at 727, 732.
- 16. See, for example, Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L J 1236, 1338–49 (2008); Bradford R. Clark, Domesticating Sole Executive Agreements, 93 Va L Rev 1573, 1578–1617, 1654–60 (2007); Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 Tex L Rev 961, 964–1009 (2001); Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 NC L Rev 133, 160–83, 218–35 (1998); David M. Golove, Against Free-Form Formalism, 73 NYU L Rev 1791, 1798–1805 (1998); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv L Rev 1221, 1228–35 (1995); Bruce Ackerman and David Golove, Is NAFTA Constitutional?, 108 Harv L Rev 799, 808–13 (1995).
- 17. Executive Overreach in Foreign Affairs, Hearing before the Executive Overreach Task Force of the House Committee on the Judiciary, 114th Cong, 2d Sess 2 (2016) (“House Executive Overreach Task Force Hearing”) (statement of Rep King).
- 18. Federalist 51 (Madison), in The Federalist 347, 347–48 (Wesleyan 1961) (Jacob E. Cooke, ed).
- 19. Statement by the President on the Paris Climate Agreement (White House Office of the Press Secretary, Dec 12, 2015), archived at http://perma.cc/A75H-DL3M.
- 20. Joby Warrick, How One Word Nearly Killed the Climate Deal (Wash Post, Dec 13, 2015), archived at http://perma.cc/2JBX-98DU.
- 21. See Clean Air Act, Pub L No 88-206, 77 Stat 392 (1963), codified as amended at 42 USC § 7401 et seq; Clear Air Amendments of 1970, Pub L No 91-604, 84 Stat 1676; Clear Air Act Amendments of 1977, Pub L No 95-95, 91 Stat 685.
- 22. Statement by President Trump on the Paris Climate Accord (White House Office of the Press Secretary, June 1, 2017), archived at http://perma.cc/6GZ7-GJXP. But see Madeline Conway, Trump: ‘Something Could Happen’ on Paris Agreement (Politico, July 13, 2017), archived at http://perma.cc/5STQ-6TYX (describing Trump’s statement in a press conference that “something could happen with respect to the Paris accord. We’ll see what happens. . . . And if it happens, that will be wonderful, and if it doesn’t, that will be OK, too”).