Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements

Only twice in the last century, in 1919 with the Treaty of Versailles, and two years ago with the comprehensive Nuclear Test-Ban Treaty, has the Senate rejected a significant treaty sought by the President. In both cases, the international agreement received support from a majority of the Senators, but failed to reach the two-thirds supermajority required by Article II, Section 2, of the Constitution. The failure of the Versailles Treaty resulted in a shattering defeat for President Wilson’s vision of a new world order, based on collective security and led by the United States. Rejection of the Test-Ban Treaty amounted to a major setback for the Clinton administration’s arms control policies and its efforts to promote American participation in international efforts at regulatory cooperation. In both cases, presidents raised the concern that a minority of the Senate could frustrate an internationalist American foreign policy and thereby turn the nation toward isolationism. According to most international law scholars and authorities, however, both presidents easily could have evaded the Treaty Clause by submitting their international agreements as statutes. Instead of navigating Article H’s advice-and-consent process, presidents have sent many international agreements to both houses of Congress for simple majority approval. Known as congressional-executive agreements, these instruments are indistinguishable under international law from treaties in their ability to bind the United States to international obligations. Several recent agreements of significance, such as the North American Free Trade Agreement (“NAFTA”) and the World Trade Organization (“WTO”) agreement, have undergone this statutory process. Not surprisingly, presidents have favored this easier route to making international agreements. While in the first fifty years of American history, the nation concluded twice as many treaties as nontreaty agreements, since World War II the nation has concluded more than ninety percent of its international agreements through a nontreaty mechanism.