Only 6 percent of the United States’ international agreements since Franklin Roosevelt’s presidency have been treaties—the only form of international accords addressed in the Constitution.
The vast majority of such agreements since FDR’s time have been struck by his successors as president. The legality of these so-called executive agreements was affirmed by the Supreme Court during the Roosevelt administration, but a question remains about whether they represent “trampling all over the separation of powers,” as BGSU political scientist Jeffrey Peake puts it.
In their new book Treaty Politics and the Rise of Executive Agreements, Peake and co-author Glen Krutz of the University of Oklahoma argue that many executive agreements have resulted from congressional delegation of authority, and their use has helped make implementation of foreign policy more efficient, effective and, possibly, democratic.
“Congress, as federal government responsibility grew, delegated a lot of authority to the executive branch,” says Peake. In international affairs, he says that’s been beneficial to Congress because enforcement of the Constitution’s treaty clause would create many more proposed treaties, whose ratification requires approval by two-thirds of the Senate. That would create a problem with efficiency, which is “really important to making foreign policy,” adds Peake, noting that the number of all international agreements soared from about 1,700 prior to FDR to about 17,000 as of 2006.
Because some executive agreements require approval by a majority of both houses of Congress, the inclusion of the House of Representatives in the process is also to Congress’ benefit, Peake points out. The more broadly representative nature of the House helps provide “a good democratic argument” for executive agreements, he maintains.
The North American Free Trade Agreement is an example of an executive agreement, which the Supreme Court ruled is interchangeable with a treaty. Whether a proposed international agreement should be a treaty or an executive agreement is often a bureaucratic decision made at the State Department, which considers precedent among other factors, Peake notes.
In one notable exception, President George W. Bush had to decide between the two options on what became a proposed 2002 treaty with Russia to reduce nuclear arsenals. He opted for a treaty because he didn’t want to upset either the Senate or Russian President Vladimir Putin, according to Peake, saying a treaty seemed more credible considering the subject matter, and presidents have historically been more likely to create treaties from significant, widely discussed issues.
While it might seem advantageous for them, presidents don’t necessarily make executive agreements “without considering what Congress thinks,” he says. “The history of the presidency is one of expansion of power,” he adds, but presidents are cognizant of congressional opposition and will sometimes curb their power as part of a bargain of sorts with the legislative branch.
Peake and Krutz, who attended graduate school together at Texas A&M, researched roughly 850 post-World War II treaties for the book, which was published this summer by the University of Michigan Press.