Legislative‐executive Agreements

Once the dominant vehicle for international commitments, treaties have largely been displaced by legislative‐executive agreements. Unlike a treaty, which require two‐thirds of the senators present for approval, agreements need only a majority in both the House and the Senate for passage.

Legislative‐executive agreements date back to the 1790s when they were used to authorize foreign loans to pay Revolutionary War debts and to establish international postal agreements. Their use has grown exponentially, rising from just 30 percent of international commitments between 1789 to 1839, to 94 percent in the years between 1939 and 1999. Recently, America's most significant international commitments, including the 1994 North American Free Trade Agreement (NAFTA) and the protocols establishing the World Trade Organization (WTO), were formalized by agreements rather than treaties.

Contributing to this shift has been embarrassment over the Senate's 1919 rejection of the Versailles Treaty at the end of World War I, a growing willingness by legislators to defer to the executive in security policy in the shadow of the Cold War, and the conviction that increasingly complex trade policy requires greater speed and flexibility than is afforded by formal treaty process. Not only do agreements avoid the possibility that a few senators might block broadly popular policies, but including the House of Representatives in the process can facilitate passage of enforcement legislation and provisions to pay for implementation.

While some scholars argue that treaties are the only constitutionally valid way for the nation to commit itself to international obligations, and others suggest that the broader democratic process embodied in legislative‐executive agreements actually gives them greater authority, most endorse the interchangeability of statutory agreements with treaties.

Loathe to intervene in foreign policy when Congress and the president are in agreement, the Supreme Court consistently has supported the constitutionality of these agreements as far back as Field v. Clark (1892). The choice to pursue a treaty as opposed to an agreement is one the Court leaves to the discretion of the president and Congress.

Bibliography

• Bruce Ackerman and David Golove, Is NAFTA Constitutional, Harvard Law Review 108 (1995).
• Congressional Research Service, Treaties and Other International Agreements: The Role of the United States Senate, S Prt 106‐71, 106^th Congress, 2^nd Session (January 2001).
• Louis Fisher, The Politics of Shared Power: Congress and the Executive (1998).
• Louis Henkin, Foreign Affairs and the US Constitution (1996).
• Loch K. Johnson, The Making of International Agreements: Congress Confronts the Executive (1984).
• Gordon Silverstein, Imbalance of Powers: Constitutional Interpretation and the Making of American Foreign Policy (1996).
• Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free‐Form Method in Constitutional Interpretation, Harvard Law Review 108 (1995)

— Gordon Silverstein