The Improvised Implementation of Executive Agreements

Kathleen Claussen

Professor, University of Miami School of Law.

Thanks to Pam Bookman, Curt Bradley, Elena Chachko, Nathan Cortez, John Coyle, Evan Criddle, Rebecca Crootof, Bill Dodge, Michael Froomkin, Jean Galbraith, Harlan Cohen, Ben Johnson, Ron Levin, Tim Meyer, David Moore, Sean Murphy, Lisa Ouellette, Steve Ratner, Ryan Sakoda, Matthew Schaefer, Gabriel Scheffler, David Sloss, Brian Soucek, Jim Speta, Matt Spitzer, Paul Stephan, David Super, Ed Swaine, Pierre-Hugues Verdier, Dan Walters, and David Zaring for their feedback on this project. Thanks also to the participants in the ASIL International Law in Domestic Courts Interest Group Workshop, the BYU Law Faculty Workshop, the Columbia Law International Law Colloquium, the George Washington Law Faculty Workshop, the Georgetown Institute of International Economic Law Colloquium, the Junior International Law Scholars Association Annual Meeting, the Miami/FIU Law School Joint Workshop, the New Voices in Administrative Law Scholarship Workshop, and the Richmond Law Junior Scholars Workshop for their comments. I’m grateful to Bianca Anderson, Pam Lucken, and Zachary Tayler for their very helpful research assistance and to the several current and former government officials who spoke with me about this project.

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Abstract

Implementation is at the core of lawmaking in our divided government. A rich literature covers the waterfront with respect to agencies’ implementation of legislative mandates, and another equally robust line of scholarship considers Congress’s implementation of treaties. Missing from those discussions, however, is another area of implementation central to U.S. foreign relations: the implementation of transnational regulatory agreements.

This Article examines how federal agencies have harnessed far-reaching discretion from Congress on whether and how to implement thousands of international agreements. Agencies regularly implement agreements by relying on a self-developed menu of options, much like they do in the domestic regulatory context—only without the checks and balances that those processes provide. This analysis of the operation of agreements presents a set of extemporized means through which the executive maintains control of these agreements and their regulation of the rights of private actors without legislative intervention or administrative law constraints. These revelations stand in contrast with conventional understandings of implementation as well as to prior accounts of how “international law [is] part of our law.”

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