Executive agreements+.

• Author: Bodansky, Daniel
• Position: Constitutionality of treaty-making power

ABSTRACT

Did President Obama act constitutionally in joining the Paris Climate Change Agreement without seeking the approval of the Senate or Congress? According to the conventional, tripartite paradigm for analyzing the president's treaty-making power, this question is conceptualized as an issue of the president's independent constitutional power. Since the Paris Agreement was not approved by the Senate as an Article II treaty or by Congress as a congressional-executive agreement, then it must be a sole executive agreement.

This Article challenges the conventional, tripartite paradigm as both conceptually inadequate and historically inaccurate, and proposes a fourth category of international agreement, which it christens "executive agreements+" (EA+). EA+ are neither congressional-executive agreements nor sole executive agreements; they fall somewhere in between. They are supported, but not specifically authorized, by congressional action. This Article argues that EA+ have a long, heretofore undiscovered pedigree. It then explores the Obama administration's deployment of the concept, applies it to the Paris Agreement, and argues that the Paris Agreement is best understood as an EA+ rather than as a sole executive agreement.

1. INTRODUCTION II. CATEGORIZING AGREEMENTS A. Agreements with Legislative Authorization: Article II Treaties and Congressional Executive Agreements B. Agreements Lacking Express Congressional Authorization: Sole Executive Agreements III. REVISITING THE HISTORY OF EXECUTIVE AGREEMENTS IV. DISCOVERING EXECUTIVE AGREEMENTS+ A. Anti-Counterfeiting Trade Agreement B. Minamata Convention on Mercury C. Foreign Account Tax Compliance Act D. The Contours of Executive Agreements+ E. EA+ Go to Paris V. THE FUTURE OF EA+ A. The Emerging Constitutional Stature of EA+ B. Judicial Nullification? C. Assessing EA+ VI. CONCLUSION I. INTRODUCTION

   Was President Obama's acceptance of the Paris Climate Change Agreement (Paris Agreement) (1) without seeking the approval of the Senate or Congress constitutional? The answer to this question will likely be as consequential for Obama's foreign policy legacy as the fate of the Affordable Care Act was for his domestic legacy. Since the prospects were virtually nil that the Senate would approve the Paris Agreement by a two-thirds majority, the only way for the United States to join was for the president to do so on his own.

   Questions concerning the president's treaty-making power have usually been conceptualized as an issue of independent constitutional power. According to the prevailing paradigm, international agreements fall into one of three categories: (1) Article II treaties, which receive the advice and consent of the Senate; (2) congressional executive agreements, which are approved by Congress; and (3) sole executive agreements, which rest on the president's independent foreign affairs authority. (2) According to this paradigm, since the Paris Agreement was not approved by the Senate or Congress, then it must be a sole executive agreement. So, the question is: Did joining the Paris Agreement fall within the president's independent powers under the Constitution? Under this standard analysis, the answer is arguably no. Many question U.S. adoption of the accord on that basis. (3)

   This Article argues that this conventional paradigm--and the resulting way of framing the debate over presidential acceptance of the Paris Agreement--is inadequate both conceptually and historically. Many international agreements are neither sole executive agreements nor congressional-executive agreements; they fall somewhere in between. They are supported but not specifically authorized by congressional action. We call them executive agreements+ (EA+). President Obama's acceptance of the Paris Agreement was as an EA+ rather than as a sole executive agreement.

   Although EA+ have a long, heretofore undiscovered pedigree, the Obama administration is the first to self-consciously deploy the concept. It has adopted several important international agreements in the absence of ex ante or ex post congressional authorization, respecting issues beyond independent presidential authority. These agreements thus qualify as neither congressional-executive agreements nor sole executive agreements under the conventional typology. The administration has acknowledged as much. The president has not argued that Congress directly authorized these agreements or that the absence of such authorization is immaterial. Rather, the executive branch has asserted that the agreements are consistent with, and complement, related congressional activity and that this relationship to existing law suffices to establish constitutional legitimacy. (4) This new practice requires at least a new category, and perhaps a new vocabulary, for analyzing agreements that lack clear congressional approval.

   In the face of political polarization and institutional gridlock, EA+ are likely to become increasingly prominent in the spectrum of instrument choice. The Obama administration's use of them is part of its broadly aggressive deployment of executive power. (5) The Article II treaty route is now effectively a non-starter, as demonstrated by the Senate's failure to consent to ratification of the Convention on the Rights of Persons with Disabilities. (6) Ex post congressional-executive agreements are no more viable, at least outside the trade context, (7) as divided government becomes the norm. While the executive branch has been pressing the boundaries of sole executive agreement-making, as demonstrated by strategic framework and status-of-forces agreements with Iraq and Afghanistan, (8) most contexts will not sustain claims of independent presidential authority, consistent with historical practice.

   This Article proceeds in four parts. Part II suggests a new typology of international agreements, distinguishing between two broad categories of agreements--those that enjoy clear legislative authorization (in any form) and those that do not. (9) Agreements enjoying express authorization include Article II treaties and congressional-executive agreements that Congress has either formally authorized ex ante or approved ex post. Those without express authorization include sole executive agreements and EA+.

   Part III reexamines the history of treaty-making in the United States, arguing that only a small, well-defined subset of international agreements were undertaken without at least some underpinning in existing law. In other words, so-called sole executive agreements, which rest entirely on the asserted "independent" or "inherent" authority of the president, represent only a fraction of the spectrum of executive agreements concluded without clear legislative approval. EA+ represent the larger category.

   Part IV describes three case studies of Obama administration practice employing EA+. The case studies involve the Anti-Counterfeiting Trade Agreement, (10) the Minamata Convention on Mercury, (11) and a series of inter-governmental agreements relating to tax offshoring. (12) On the one hand, none of these agreements enjoyed express congressional authorization or Senate approval. On the other hand, none could be tethered to historically-legitimized independent presidential authority. Unable to follow conventional constitutional scripts, the administration justified the agreements on the basis that they were consistent with and complemented existing law. This Part argues that a similar rationale supports presidential acceptance of the Paris Agreement.

   Part V considers this activity jurisprudentially. EA+ fit comfortably within the Youngstown framework. Justice Jackson's famous concurrence in Youngstown (13) set out a tripartite, relational categorization for measuring the constitutionality of presidential actions. The approach measures presidential action against implied congressional authorities and political imponderables. The Youngstown framework has represented a dominant heuristic for assessing the constitutionality of presidential action in recent decades, (14) and the Obama administration has played the Youngstown card in defending recent treaty action. (15)

   It is important to scrutinize the Obama administration's practice regarding EA+ in its nascency. In the foreign affairs context, practice has historically played a crucial function in setting constitutional norms. (16) Although the president has joined several agreements on an EA+ theory, the practice is not yet constitutionally entrenched. Future episodes could snuff out EA+ before they become a standard component of the president's foreign relations toolbox.

   Given the improbability of congressional fortitude, judicial nullification appears to be the greater threat to EA+. In recent years, the courts have shed their historical reticence to engage the merits in foreign relations-related disputes. (17) They have also shown increasing willingness to buck presidential power in the area, often on formalist grounds. (18) Litigants may be tempted to challenge EA+ on constitutional grounds, especially if future administrations go beyond the Obama precedents. (19)

   Even if the courts duck the question, EA+ warrant close examination. To the extent that the president takes vague expressions of legislative policy and turns them into international agreements, accountability concerns necessarily enter the mix. (20) This is perhaps especially the case in the face of congressional gridlock. (21) Presidential assertions of a legislative nexus for international agreement-making will be difficult to cabin and refute through affirmative congressional action. But a strong case can be made for EA+. Congressional gridlock supplies a clear justification as well as motivation. (22) Many international problems, such as climate change, cannot be addressed without multilateral action, so there will be continuing pressure for international agreements. (23) Suppressing EA+ in the courts or otherwise...