Executive agreements relying on implied statutory authority: a response to Bodansky and Spiro.

• Author: Wirth, David A.
• Position: Daniel Bodansky and Peter Spiro, Vanderbuilt Journal of Transnational Law, vol. 40, p. 885, 2016

Until recently, the law surrounding executive agreements has been a subject of attention from a relatively small number of academics concerned with foreign relations law, along with State Department lawyers who have a need to deploy the underlying concepts in concrete determinations. Then, with little advance warning, the Paris Agreement thrust legal doctrines surrounding executive agreements to center stage in public policy debates and in the popular press. President Donald Trump's campaign promise to "cancel" the Paris Agreement has drawn even more attention to the issue. (1) Unfortunately, the result has been a great deal of confusion, often needlessly contributing to turbulent confrontations about the contours of the executive agreement power, when clarity and precision instead are called for.

Daniel Bodansky and Peter Spiro (2) appropriately focus on a subset of executive agreements, namely those whose domestic legal authority is a federal statute that does not expressly authorize the executive branch to conclude international agreements. (3) As they note, the Paris Agreement is not the first international agreement to be concluded by the United States in this mode. (4) Also as observed in their Article, this is an approach that has been deployed in the past by the executive branch with respect to a number of international environmental agreements, especially those addressing air pollution. (5)

The tone and approach of their Article, unfortunately, risks exacerbating the already fraught, inflammatory, and combative rhetoric surrounding the conclusion of the Paris Agreement and other instruments done as executive agreements based on this theory. (6) While the authors are

more than entitled to share subjective impressions of their individual journeys through the law of executive agreements, the Article makes categorical assertions about the Obama administration's approach to executive agreements that can be tested against prior practice and jurisprudence.

In particular, the Article characterizes the Obama administration's practice concerning executive agreements supported, but not necessarily expressly authorized, by extant legislation as

"the first to self-consciously deploy the concept"; (7)

"broadly aggressive" in considering legislative authority as domestic legal support for executive agreements; (8)

* "the first to distinguish ... executive agreements" supported by legislative authority not specifically authorizing international agreements: (9)

* "a ... choice ... to roll out a new theory" of executive agreements consistent with existing legislative authority;!!)

* "a conscious effort to break out of existing categories" for executive agreements; (11) and

* "mov[ing] to eliminate [prior] substantive limitations" on executive agreements. (12)

That the Article "christens" (13) this category of instruments with the moniker "executive agreements plus," (14) supposedly "heretofore undiscovered" (15) and a "new practice," (16) further exacerbates the misleading nature of the Article's conclusions and the needlessly tendentious tone of the piece. Indeed, the claims of innovative practice--and the accompanying implications of executive overreach--are belied by the authors' own analysis, which, in its broad outlines, is well taken.

More plausible--although less dramatic--assertions might be made that the Obama administration has utilized this category of executive agreements more frequently than its predecessors, or in more politically contentious contexts. But the authors' analysis is not aimed at supporting either of these conclusions. In any event, stripped of the dubious claims of novelty and the questionable insinuations of executive overreach, the authors have performed a useful service in drawing attention to a distinct class of executive agreements which, as they somewhat confusingly assert, "have a pedigree in prior practice." (17)

The lodestone for post-war discussions of the question of "choice of instrument"--that is, the executive's decision-making juncture between an Article II, Section 2 treaty, subject to Senate advice and consent, as contrasted with an executive agreement relying exclusively on executive branch action as a precondition to entry into force--is Department of State Circular No. 175 (Circular 175), promulgated on December (13), (1955). (18) One purpose of that instrument is "to ... insure that the function of making treaties and other international agreements is carried out within traditional constitutional limits." (19)

As to the crucial treaty versus executive agreement choice, under the heading "Scope of the Executive Agreement-Making Power," Circular 175 specifically identifies "[a]greements which are made pursuant to or in accordance with existing legislation," directly addressing precisely the subject matter of Bodansky and Spiro's Article more than half a century earlier. (20) The original Circular 175 has since been reproduced and updated in the State Department's Foreign Affairs manual, with the current version dating from 2006. That version continues to identify "legislation" as providing legal support for an international agreement other than a treaty--that is, an executive agreement. (21)

It goes without saying that all international agreements of the United States must be consistent with the Constitution. (22) In the case of an Article II, Section 2 treaty, the Senate's resolution of advice and consent provides the necessary domestic legal authority. (23) Consequently, the legal authority for the president to enter into a binding executive agreement must be found elsewhere, other than in the Senate's resolution of advice and consent. Existing legislation, prior Article II, Section 2 treaties, and the president's own Plenary Powers, are alternative sources of such authority. (24) Of necessity, every provision of an international agreement done as an executive agreement must be supported by one of these authorities. (25) The converse, however, is not the case. That is, different provisions of an executive agreement may find support in diverse legal sources, in some cases more than one.

Circular 175 also contains procedural provisions requiring written approval from the State Department before the commencement of negotiations, designed primarily to assure coordination among executive departments in anticipation of the conclusion of an international agreement. (26) An important component of the process is a memorandum prepared by the State Department's Office of the Legal Adviser, identifying the legal authority for the proposed agreement. Among other things, these memoranda of law analyze the conclusion of the proposed agreement as either an Article II, Section 2 treaty or an executive agreement, as the case may be, depending on the presence or absence of the relevant legal authority. The memorandum also identifies the potential need for additional statutory enactments required for domestic implementation. (27)

This doctrinal background produces a ready-made template for analyzing the constitutionality of each provision of an executive agreement. The Paris Agreement is an excellent example because its content overlaps with a variety of domestic legal authorities. In particular, the task is to identify the domestic legal authority for implementation of each of the obligations in an executive agreement by reference to one or more of the following:

* Prior Article II, Section 2 treaties, for which the most likely source is the 1992 United Nations Framework Convention on Climate Change (1992 Framework Convention); (28)

* The president's plenary powers under Article II, for which the most likely sources are his or her role as chief executive, (29) the president's function as diplomat in chief for the Nation, including exclusive responsibility and authority for conducting the foreign affairs of the United States, (30) and the responsibility to "take care that the laws be faithfully executed"; (31) and

Existing legislation, for which the most likely, although not only, source of implementing authority is the federal Clean Air Act. (32)

Many of the binding obligations in the Paris Agreement are procedural in nature, requiring the reporting of emissions, documenting progress in implementation, accounting for emissions, and the like. (33) And consulting with other states is a constitutional power of the president as chief executive, principal diplomat, and the "sole organ" of the nation in dealing with foreign governments. (34) Even in the absence of express statutory or treaty authority, the president may engage in information exchange and cooperation with foreign governments in the environmental field, as demonstrated by numerous authorities, including a 1980 executive agreement with Canada on acid rain, (35) which was concluded before the Clean Air Act was amended specifically to address this problem. (36)

Similarly, the 1992 Framework Convention, concluded as an Article II, Section 2 treaty, specifically articulates an analogously extensive range of procedural obligations, including emissions reporting, exchange of information, technology transfer, and cooperation in implementation. (37) The 1992 Framework Convention also lays a legal foundation for substantive matters addressed in a binding mode in the Paris Agreement, most notably financial support for developing countries' programs of mitigation (emissions reductions) and adaptation. (38) Domestic statutory authority, such as the Clean Air Act, (39) buttresses the United States' capacity to implement these commitments.

The Third Restatement of the Foreign Relations Law of the United States (Restatement) appears to be a primary source of uncertainty concerning the appropriateness of prior congressional legislation as domestic legal authority for an international agreement concluded by the president without express congressional authorization. (40) Section 303 of the Restatement identifies three categories of...