Presidential power over international law: restoring the balance.

• Author: Hathaway, Oona A.

ARTICLE CONTENTS INTRODUCTION I. THE POWER OF THE PRESIDENT TO MAKE UNILATERAL INTERNATIONAL LAW A. The Scope and Legal Foundation of Executive Agreements B. Ex Ante Congressional-Executive Agreements II. LOOKING BACK: THE HISTORY OF THE PRESIDENT'S POWER OVER INTERNATIONAL LAWMAKING IN THE UNITED STATES A. The Founding Era Through the New Deal: Setting the Legal and Political Stage for Transformation B. The Aftermath of World War II: Growing Presidential Unilateralism C. The Revolution of INS v. Chadha: The Triumph of Presidential Unilateralism III. THE PROPER ROLE OF THE PRESIDENT IN INTERNATIONAL LAWMAKING A. The President Is a Necessary but Rarely Sufficient Actor in International Lawmaking 1. The President Is the Sole Voice of the United States on the International Stage 2. The President's Unilateral International Lawmaking Powers and Its Limits 3. Ex Ante Congressional-Executive Agreements Satisfy the Form, but Not the Function, of Interbranch Cooperation B. Unilateral Presidential Power Threatens Democratic Accountability 1. In Defense of Democratic Accountability in International Lawmaking 2. International Delegation and Domestic Delegation Compared 3. Congressional Control over Appropriations Is Not a Sufficient Check on Presidential Power C. The False Choice Between Democratic Accountability and Effective International Lawmaking 1. Widespread Political Support Can Lead to More Effective International Law 2. An Unconstrained Negotiator Can Be Weaker, Not Stronger 3. Executive Branch Negotiators May Not Have All Relevant Information IV. RESTORING THE BALANCE A. A New Model of Administrative International Lawmaking 1. An "APA" for International Law 2. Rethinking Delegations of Lawmaking Authority to the President 3. Eligibility for the Administrative Track B. An Expanded Model of Legislative International Lawmaking 1. Article II Treaties 2. Ex Post Congressional-Executive Agreements 3. An Expanded "Fast Track" CONCLUSION INTRODUCTION

Each year, the United States enters hundreds of international agreements on everything from cooperation in the prevention of illicit trafficking in nuclear and other radioactive material with Latvia, (1) to the safety of food and feed imported from China, (2) to international air transport with Georgia, (3) to the suppression of the illicit traffic in narcotic drugs with Malta. (4) But very few of these agreements are reported in the news or discussed in the halls of Congress. That is because most of them are made by the President alone and are quietly revealed to Congress and the public months after they have already entered into force.

These agreements are the product of a little noticed transformation during the last half-century in the way international law is made in the United States. Once a duty shared by Congress and the President, the task of concluding international agreements has come to be borne almost entirely by the President alone. Today, the vast majority of binding international agreements entered into by the United States are concluded by the President through what are referred to as "executive agreements." (5) During the past decade, the U.S. Department of State has reported an average of between two and three hundred executive agreements to Congress each year, touching on nearly every subject of international law--at times with substantial effect. (6) By comparison, the United States has ratified roughly twenty treaties annually during the same decade. (7)

The President has not always had the power to make so much international law on his own. Indeed, executive agreements were a relative rarity before the mid-twentieth century. Beginning in the post-World War II era, however, Congress began granting extensive power to the President to make international agreements on his own. The statutes that initially granted authority were narrow and carefully constrained. Over time, however, many of the grants of authority became increasingly vague and open-ended, allowing the President to negotiate agreements and put them into force without any further congressional approval. The agreements that the President negotiates under this advance authority are often referred to as "ex ante" congressional-executive agreements.

In principle, Congress has the power to revoke these grants of authority by passing subsequent statutes. In practice, however, the authority to make such international agreements has proven to be nearly impossible to revoke once granted--not least because any effort to revoke or even amend a delegation can be vetoed by the President. Moreover, Congress retains strikingly meager power to oversee the agreements that are made. After authorizing the President to make binding international agreements on behalf of the United States, Congress typically does little to police the exercise of that authority. The courts, reluctant to weigh in on foreign affairs matters, have done nothing to correct the imbalance. They have instead granted substantial deference to the President as to both the substance and the form of international lawmaking. As a result, ex ante congressional-executive agreements--which today make up roughly eighty percent of all U.S. international legal commitments--are made by an almost entirely unfettered President.

This Article traces the key moments since the Founding that have brought us to this imbalanced moment. It shows that during the first hundred years after the Founding, the President played a highly constrained role in international lawmaking. It was extremely rare for the President to make agreements without express congressional approval. That began to change in the 1890s, when Congress started to give the President independent power to conclude bilateral trade agreements within strict constraints. The decision in the 1890s to give the President power to conclude trade agreements set the legal and political stage for a broader transformation in international lawmaking during the next century. That potential was realized in the period following World War II. Unilateral presidential power over international law grew exponentially from then onward, driven first by the passage of an expansive and unprecedented foreign assistance program, and later by the Supreme Court's decision to prohibit the use of legislative vetoes. That decision, and Congress's response to it, eliminated much of the limited power Congress had until then retained.

Why did Congress delegate so much of its power over international law to the President? After all, the pattern I describe defies the common expectation that Congress will jealously guard its already limited prerogatives. In this Article, I show that Congress acted as it did because of a combination of institutional myopia and political incentives. Congress gave away its power slowly over time. Each individual delegation of authority relinquished only a small measure of power to the President, while freeing members of Congress to dedicate themselves to matters that were more likely to improve their prospects for reelection. The costs of these decisions for Congress's institutional power took decades to be realized. Not only did the effect of each individual delegation grow over time, but the cumulative effect of multiple delegations also became more significant with each additional delegation. Because these effects were slow to be realized, few of the individual members of Congress who voted to approve the delegations would still be in office when the cumulative effects of the delegations came to be felt. At that point, Congress found itself unable to reclaim what it had lost, in part because of the difficulty of mobilizing members of Congress around issues of international law that already had been ceded to the executive branch.

That Congress never intended to give up so much power does not necessarily mean that it should reclaim the basic authority over international lawmaking it once shared more fully with the executive branch. It would be possible to conclude that Congress's decision to give power over to the President was a good one, even if unintentional. But that would be a mistake. The imbalance of power over international lawmaking that has emerged over the past two centuries is, I argue, inconsistent with basic democratic principles and can lead to less favorable agreements.

The President should be a leading actor in international lawmaking--but not the sole actor. The absence of genuine cooperation among the branches is inconsistent with the principle of separation of powers on which our government relies: a single branch of government should not be able to unilaterally maize law over an immense array of issues simply by concluding binding international agreements. In fact, the law already recognizes this. Strict legal limits govern the kinds of agreements that presidents may enter into under their constitutional authority through so-called sole executive agreements. And yet such limits are not applied to ex ante congressional-executive agreements, on the grounds that such agreements inherently embody interbranch cooperation. As this Article shows, however, ex ante congressional-executive agreements rarely involve the true sharing of power. Indeed, the very label applied to such an agreement--"ex ante congressional-executive agreement"--is misleading, since it suggests a level of cooperation in making the agreement that rarely exists. In reality, once Congress delegates authority to the President to make the agreement, it usually plays no further role--contrary to what the separation of powers requires.

In an era in which international lawmaking increasingly overlaps with domestic lawmaking, ex ante congressional-executive agreements provide a means for presidents to bypass the other branches of government in pursuing core policy aims. This is troubling not merely as an abstract constitutional matter. It also raises real concerns about the quality of governance and...