Withdrawing from Congressional-Executive Agreements with the Advice and Consent of Congress

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797

WITHDRAWING FROM CONGRESSIONAL-

EXECUTIVE AGREEMENTS WITH THE ADVICE

AND CONSENT OF CONGRESS

Abigail L. Sia*

As President Donald J. Trump withdrew the United States from one

international agreement after another, many began to question whether these

withdrawals required congressional approval. The answer may depend on

the type of agreement. Based on history and custom, it appears that the

president may unilaterally withdraw from agreements concluded pursuant to

the treaty process outlined in the U.S. Constitution. However, the United

States also has a long history of concluding international agreements as

congressional-executive agreements, which use a different approval process

that does not appear in the Constitution. But while academics have spilled

ink on Article II treaties for decades, the congressional-executive agreement

has received relatively little attention. It is neither clear nor well settled

whether the president has the constitutional authority to withdraw

unilaterally from this type of agreement.

This Note proposes applying Justice Robert H. Jackson’s tripartite

framework, first articulated in a concurring opinion to Youngstown Sheet &

Tube Co. v. Sawyer (Steel Seizure), to determine whether or not a president

may constitutionally withdraw from a congressional-executive agreement

without Congress’s consent. However, in certain dire emergency situations

or when Congress is physically unable to convene and vote, the president

should be permitted to eschew the framework and withdraw the United States

from a congressional-executive agreement without waiting for Congress’s

consent—so long as the president reasonably believes that withdrawal is in

the country’s best interest. To support this approach, this Note also calls for

a new reporting statute, similar in structure to the War Powers Resolution,

to address the significant information asymmetries between the executive and

legislative branches.

J.D. Candidate, 2021, Fordham University School of Law; B.A., 2014, Johns Hopkins

University. I owe debts of gratitude to Professor Martin S. Flaherty for inspiring this Note

and providing invaluable advice; to Alexander Butwin and the editors and staff of the

Fordham Law Review for their thoughtful comments, diligent review, and endless patience;

and to my friends for their encouragement throughout the entire writing process. Any mistakes

or omissions are mine. Above all, I am endlessly grateful to my parents and brother, whose

unconditional love and unwavering support means more to me than I can ever hope to put into

words.

798 FORDHAM LAW REVIEW [Vol. 89

NTRODUCTION .................................................................................. 799

CONGRESSIONAL-EXECUTIVE AGREEMENTS: A PRIMER............. 803

A. Types of Congressional-Executive Agreements ................ 804

B. The Congressional-Executive Agreement in History ........ 804

C. Comparing Congressional-Executive Agreements and

Article II Treaties ............................................................ 806

1. Congressional-Executive Agreements and Statutory

Interpretation ............................................................. 806

2. Efficiency Considerations .......................................... 807

3. Democratic Legitimacy .............................................. 809

4. Self-Execution ............................................................ 810

5. Constitutional Legitimacy .......................................... 811

6. Ease of Identification and Frequency of Reporting ... 812

D. Unilateral Presidential Termination of Article II

Treaties ........................................................................... 814

1. Arguments Supporting the President’s Unilateral

Withdrawal Authority ............................................... 815

a. The Vesting Clause Argument .............................. 815

b. The Appointments Clause Argument .................... 816

c. The “Sole Organ” Argument ............................... 816

2. Congressional Reactions to Unilateral Withdrawals .. 818

3. Challenges to Unilateral Withdrawals from Article II

Treaties in Federal Court ........................................... 819

II.

OPPOSING VIEWPOINTS ON UNILATERAL PRESIDENTIAL

WITHDRAWAL FROM CONGRESSIONAL-EXECUTIVE

AGREEMENTS ......................................................................... 821

A. Viewpoint One: Withdrawals Require Congressional

Approval ......................................................................... 822

1. Congressional-Executive Agreements Are (Virtually)

Equivalent to Statutes ................................................ 822

2. The Role of Subject Matter ........................................ 823

3. The “Mirror Principle” ............................................... 824

B. Viewpoint Two: The President Does Not Need

Congressional Approval ................................................. 826

III.

FINDING MIDDLE GROUND AND A WAY FORWARD ................... 827

A. Addressing the Shortcomings ........................................... 828

B. Proposing a Youngstown-Inspired Middle Ground

Approach ........................................................................ 830

C. The Need for a New Reporting Statute ............................. 833

ONCLUSION ..................................................................................... 836

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 799

NTRODUCTION

After weeks of accusing the World Health Organization (WHO) of

collaborating with the Chinese government to conceal the beginnings of the

COVID-19 pandemic, President Donald J. Trump announced on May 29,

2020, that the United States would withdraw.

The announcement drew swift

condemnation from public health officials and Democrats,

but on July 6,

2020, the United States formally notified the United Nations of its

withdrawal from the WHO, effective on July 6, 2021.

Trump’s foreign policy has been marked by a slew of U.S. withdrawals

from international agreements. While there are far too many to name here,

notable examples include Trump’s high-profile withdrawals from the Joint

Comprehensive Plan of Action (“the Iran Nuclear Deal”),

the 1987

Intermediate Nuclear Forces Agreement (“the INF Agreement”),

and the

Paris Agreement on Climate Change (“the Paris Agreement”).

Trump has

also reportedly mused about withdrawing from the North Atlantic Treaty

Organization (NATO).

Trump’s actions reignited a debate over whether the president has the

constitutional authority to withdraw from U.S. international obligations

without congressional approval.

The U.S. Constitution, succinct as it is,

1. Donald G. McNeil Jr. & Andrew Jacobs, Blaming China for Pandemic, Trump Says

U.S. Will Leave the W.H.O., N.Y. TIMES (May 29, 2020), https://www.nytimes.com/2020/

05/29/health/virus-who.html [https://perma.cc/X3WC-G3H6].

2. Id.

3. Stéphane Dujarric, Note to Correspondents in Answer to Questions Regarding the

World Health Organization, U

NITED NATIONS SEC’Y-GEN. (July 7, 2020), https://www.un.org/

sg/en/content/sg/note-correspondents/2020-07-07/note-correspondents-answer-questions-

regarding-the-world-health-organization [https://perma.cc/QQ5V-4HS4].

4. For a more comprehensive list of international agreements from which Trump has

withdrawn as of February 1, 2019, see Zachary B. Wolf & JoElla Carman, Here Are All the

Treaties and Agreements Trump Has Abandoned, CNN (Feb. 1, 2019, 11:50 AM),

https://www.cnn.com/2019/02/01/politics/nuclear-treaty-trump/index.html [https://perma.cc/

G374-Z579].

5. S.C. Res. 2231 (July 20, 2015); see Fact Sheets: President Donald J. Trump Is Ending

United States Participation in an Unacceptable Iran Deal, T

HE WHITE HOUSE (May 8, 2018),

https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-ending-united-

states-participation-unacceptable-iran-deal/ [https://perma.cc/TZ5K-UATQ].

6. The Treaty Between the United States of America and the Union of Soviet Socialist

Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles, U.S.-

U.S.S.R., Dec. 8, 1987, S.

TREATY DOC. NO. 100-11 [hereinafter INF Treaty]; see Press

Statement, Michael R. Pompeo, U.S. Dep’t of State, U.S. Withdrawal from the INF Treaty

(Aug. 2, 2019), https://www.state.gov/u-s-withdrawal-from-the-inf-treaty-on-august-2-2019/

[https://perma.cc/8TK4-9KFJ].

7. Paris Agreement, Dec. 12, 2015, T.I.A.S. No. 16-1104; see Press Statement, Michael

R. Pompeo, U.S. Dep’t of State,

On the U.S. Withdrawal from the Paris Agreement (Nov. 4,

2019), https://www.state.gov/on-the-u-s-withdrawal-from-the-paris-agreement/ [https://

perma.cc/8PKU-JGLQ].

8. Julian E. Barnes & Helene Cooper, Trump Discussed Pulling U.S. from NATO, Aides

Say Amid New Concerns Over Russia, N.Y.

TIMES (Jan. 14, 2019), https://www.nytimes.com/

2019/01/14/us/politics/nato-president-trump.html [https://perma.cc/7BF8-FJR6].

9. See generally Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67

UKE L.J. 1615 (2018) (arguing that presidents may generally withdraw unilaterally from

certain international agreements); Harold Hongju Koh, Presidential Power to Terminate

800 FORDHAM LAW REVIEW [Vol. 89

does little to resolve the debate. It devotes only a sentence to entering into

agreements with foreign governments,

and it only mentions treaties.

Based on this, a casual observer might assume that all of the international

agreements that the United States has made or entered into over the centuries

are “treaties”—that is, agreements concluded

pursuant to the process

described in the Constitution, i.e., Article II treaties.

In fact, this is far from

the truth. Of the agreements mentioned above, only the INF Agreement and

the agreement that created NATO are Article II treaties.

The Iran Nuclear

Deal is a “nonbinding political commitment” that President Barack Obama

made independently of Congress.

Scholars cannot seem to agree on what

to call the Paris Agreement.

The agreement that made the United States a

member of the WHO (“the WHO Agreement”),

however, is a

congressional-executive agreement (CEA). Other notable CEAs include the

North American Free Trade Agreement (NAFTA);

its successor, the United

States-Mexico-Canada Agreement (USMCA);

and the instruments by

International Agreements, 128 YALE L.J.F. 432 (2018) (arguing that the agreement’s subject

matter informs the inquiry); Catherine Amirfar & Ashika Singh, The Trump Administration

and the “Unmaking” of International Agreements, 59 H

ARV. INT’L L.J. 443 (2018) (arguing

for a case-by-case approach); Robbie Gramer, Trump Can’t Do That. Can He?, F

OREIGN

POL’Y (Jan. 16, 2019, 11:20 AM), https://foreignpolicy.com/2019/01/16/trump-cant-do-that-

can-he-nato-russia-congress [https://perma.cc/8SCJ-GJH8] (summarizing perspectives on a

potential withdrawal from NATO).

10. See U.S.

CONST. art. II, § 2, cl. 2 (“[The President] shall have Power, by and with the

Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators

present concur . . . .”). This is often referred to as the Treaty Clause. See, e.g., S

TEPHEN P.

MULLIGAN, CONG. RSCH. SERV., RL32528, INTERNATIONAL LAW AND AGREEMENTS: THEIR

EFFECT UPON U.S. LAW 3 (2018).

11. But see U.S.

CONST. art. I, § 10, cl. 3 (forbidding states from entering into

“Agreement[s] or Compact[s] . . . with a foreign Power”).

12. This Note uses “conclude” to refer to the act of reaching or negotiating an agreement.

13. See supra note 10 and accompanying text.

14. See INF Treaty, supra note 6, at III (submitting the treaty to the Senate for its advice

and consent); North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243.

15. Samuel Estreicher & Steven Menashi, Taking Steel Seizure Seriously: The Iran

Nuclear Agreement and the Separation of Powers, 86 F

ORDHAM L. REV. 1199, 1202 (2017).

16. See Curtis A. Bradley & Jack L. Goldsmith, Presidential Control over International

Law, 131 H

ARV. L. REV. 1201, 1248–49 (2018) (summarizing differing opinions). Professors

David Bodansky and Peter Spiro, for example, classify the Paris Agreement as an “executive

agreement+,” or an agreement the president concludes alone and outside the independent

presidential powers granted in the Constitution. See David Bodansky & Peter Spiro, Executive

Agreements+, 49 V

AND. J. TRANSNAT’L L. 885, 887 (2016).

17. Act of June 14, 1948, Pub. L. No. 80-643, ch. 469, 62 Stat.

441 (codified as amended

at 22 U.S.C. §§ 290–290e); Constitution of the World Health Organization, opened for

signature July 22, 1946, 62 Stat. 2679.

18. See North American Free Trade Agreement Implementation Act, Pub. L. No. 103-

182, 107 Stat. 2057 (1993) (codified as amended in scattered sections of the U.S.C.); Canada-

Mexico-United States: North American Free Trade Agreement, Dec. 17, 1992, 32 I.L.M. 298.

19. See United States-Mexico-Canada Agreement Implementation Act, Pub. L. No. 116-

113, 134 Stat. 11 (2020) (to be codified in scattered sections of the U.S.C.); Agreement

Between the United States of America, the Mexican States, and Canada, Nov. 30, 2018,

https://can-mex-usa-sec.org/secretariat/assets/pdfs/usmca-aceum-tmec/agreement-eng.pdf

[https://perma.cc/EAA4-UG2H] (entered into force July 1, 2020).

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 801

which the United States joined the International Monetary Fund (IMF) and

the World Bank.

Unlike Article II treaties, which do not bind the United States until the

Senate consents by a two-thirds majority vote,

CEAs require simple

majority votes from both the Senate and the House of Representatives either

before or after the agreement is concluded.

The approval is usually

memorialized in a statute.

Together with their sole executive agreement

cousins, CEAs vastly outnumber Article II treaties: the Congressional

Research Service found that the United States concluded 12,880 executive

agreements and a mere 1501 Article II treaties between 1789 and 1989.

History seems to demonstrate a general acceptance that the president may

withdraw from an Article II treaty without congressional approval.

Only

one serious challenge to the president’s unilateral withdrawal or

termination

authority has reached the U.S. Supreme Court.

The Court

20. LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 215 (2d ed.

1996); see Bretton Woods Agreements Act, Pub. L. No. 79-171, ch. 339, 59 Stat. 512 (1945)

(codified as amended at 22 U.S.C. §§ 286–286zz); Articles of Agreement of the International

Monetary Fund, Dec. 27, 1945, 60 Stat. 1401; Articles of Agreement of the International Bank

for Reconstruction and Development, Dec. 27, 1945, 60 Stat. 1440.

21. U.S.

CONST. art. II, § 2, cl. 2.

22. C

URTIS A. BRADLEY, INTERNATIONAL LAW IN THE U.S. LEGAL SYSTEM 76 (2d ed.

2015); see infra Part I.A.

23. See, e.g., Bretton Woods Agreements Act, § 2, 59 Stat. at 512 (“The President is

hereby authorized to accept membership for the United States in the International Monetary

Fund . . . and in the [World Bank] . . . . ”).

24. Presidents conclude sole executive agreements without congressional approval

pursuant to authority derived from independent grants of power under Article II. C

ONG. RSCH.

SERV., 106TH CONG., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE

UNITED STATES SENATE 1 (Comm. Print 2001). CEAs and sole executive agreements are two

different types of executive agreements, which bind the United States to international

obligations but are concluded outside the Article II treaty process. M

ULLIGAN, supra note 10,

at 6; Bradley, supra note 9, at 1616–17. Together, Article II treaties, CEAs, and sole executive

agreements constitute the traditional trichotomy of international agreements. Bodansky &

Spiro, supra note 16, at 886–87. Although some disagree, see, e.g., id. at 887 (calling the

traditional framework “inadequate both conceptually and historically”); Bradley & Goldsmith,

supra note 16, at 1207–08 (listing five types of international agreements); Harold Hongju Koh,

Triptych’s End: A Better Framework to Evaluate 21st Century International Lawmaking, 126

ALE L.J.F. 338 (2017) (arguing that the trichotomy is obsolete), this Note utilizes the

traditional three-part framework.

25. See C

ONG. RSCH. SERV., supra note 24, at 39 tbl.II-§1. The table does not divide

executive agreements further into CEAs and sole executive agreements.

26. See Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 T

EX. L. REV. 773,

798–816 (2014) (recounting a history of unilateral presidential treaty terminations); see also

ESTATEMENT (FOURTH) OF THE FOREIGN RELS. L. OF THE U.S. § 313(1) (AM. L. INST. 2018)

(“According to established practice, the President has the authority to act on behalf of the

United States in suspending or terminating U.S. treaty commitments and in withdrawing the

United States from [Article II] treaties . . . .”); infra Part I.D.

27. A party that terminates a treaty (or other international agreement) according to the

treaty’s terms announces that it “will no longer adhere” to the otherwise valid and enforceable

agreement. C

ONG. RSCH. SERV., supra note 24, at 413. “Withdrawal” generally refers to the

act of “terminating the obligations of an international agreement with respect to a withdrawing

party.” Id. This Note generally uses “termination” and “withdrawal” interchangeably.

28. Goldwater v. Carter, 444 U.S. 996 (1979) (mem.).

802 FORDHAM LAW REVIEW [Vol. 89

remanded the case without issuing a majority opinion, but individual Justices

wrote splintered concurring opinions that did not address the merits.

Federal district courts dismissed two later cases that brought similar

challenges—also without reaching the merits of either case.

However, all

three cases concerned Article II treaties; whether the president has the

constitutional authority to withdraw from or terminate a CEA without

congressional consent “has not been seriously challenged in the past.”

In an era as turbulent and polarized as the current one, resolving this key

question of presidential authority is crucial.

Given the apprehension

toward global involvement that accompanied Trump’s election

and that

past U.S. presidents have also displayed isolationist tendencies,

one

wonders what other global institutions might someday land in the crosshairs.

This Note argues that Congress should have the opportunity to participate

in the decision to withdraw from CEAs, except in emergency situations

implicating U.S. national security or vital security interests, or when

Congress physically cannot convene

and the president reasonably deems it

necessary to withdraw immediately.

Additionally, because no current

federal statute requires the president “to notify Congress of an executive

decision to terminate or withdraw from any treaty or international

29. Id. at 996–97. Justice William H. Rehnquist argued that the case raised a

nonjusticiable political question. Id. at 1002 (Rehnquist, J., concurring). Justice Lewis F.

Powell Jr. raised ripeness issues. Id. at 997 (Powell, J., concurring).

30. Kucinich v. Bush, 236 F. Supp. 2d 1, 2 (D.D.C. 2002); Beacon Prods. Corp. v. Reagan,

633 F. Supp. 1191, 1199 (D. Mass. 1986), aff’d, 814 F.2d 1 (1st Cir. 1987).

31. C

ONG. RSCH. SERV., supra note 24, at 199.

32. It is important to note that presidents from both parties have withdrawn from or

unilaterally terminated CEAs. See, e.g., Bradley, supra note 9, at 1638–39 (discussing how

the Obama administration unilaterally terminated a CEA by entering into another agreement).

33. See Public Uncertain, Divided over America’s Place in the World, P

EW RSCH. CTR.

(May 5, 2016), https://www.pewresearch.org/politics/2016/05/05/public-uncertain-divided-

over-americas-place-in-the-world/ [https://perma.cc/EAA4-UG2H] (reporting that 57 percent

of Americans surveyed say the United States should let other countries “[d]eal with their own

problems” and 41 percent say the United States does “[t]oo much” to solve world problems).

34. See, e.g., W

ASHINGTON’S FAREWELL ADDRESS TO THE PEOPLE OF THE UNITED STATES

MDCCXCVI 22 (Houghton Mifflin Co. 1913) (“It is our true policy to steer clear of permanent

alliances with any portion of the foreign world . . . .”); President Warren G. Harding, Inaugural

Address (Mar. 4, 1921), reprinted in 60 C

ONG. REC. 4533, 4533 (1921) (“[The United States]

can enter into no political commitments, nor assume any economic obligations which will

subject our decisions to any other than our own authority.”).

35. Although the author has not found any particular time in history when it was

physically impossible for Congress to meet, such a situation is not especially difficult to

imagine. For example, had United Airlines Flight 93 hit its intended target, the U.S. Capitol

building, on September 11, 2001, hundreds of members of Congress could have been killed

or incapacitated—this would have “eliminat[ed] the constitutionally required quorum until

special elections could be held to replenish the House.” Norm Ornstein, Congress Desperately

Needs a Contingency Plan, A

TLANTIC (Mar. 13, 2020), https://www.theatlantic.com/

ideas/archive/2020/03/congress-needs-contingency-plan-right-now/607933 [https://perma.cc/

W2DQ-53VE]; see also U.S.

CONST. art. 1, § 5, cl. 1 (“[A] Majority of each [chamber] shall

constitute a Quorum to do Business . . . .”).

36. This Note only discusses withdrawing from CEAs on the international plane and does

not discuss terminating any related domestic obligations. This Note does not discuss breaches

of international law or particular withdrawal terms in any given CEA.

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 803

agreement,”

this Note also calls for a new reporting statute to support the

proposed framework.

Part I explores the history of CEAs, compares CEAs to Article II treaties,

and broadly summarizes the current state of the law surrounding unilateral

presidential withdrawal from international agreements. Part II presents

opposing scholarly arguments discussing a president’s constitutional

authority to withdraw unilaterally from a CEA. Part III argues for a middle

ground approach between the opposing viewpoints discussed in Part II and

outlines the proposed reporting statute.

CONGRESSIONAL-EXECUTIVE AGREEMENTS: A PRIMER

Presidents negotiate CEAs with congressional “authorization or approval”

that may concern “any matter that falls within the powers of Congress and of

the President under the Constitution.”

CEAs require only simple majorities

of both the Senate and the House of Representatives.

Though not

contemplated in the Constitution, CEAs constitute the vast majority of

international agreements to which the United States is a party.

As a threshold matter, international law does not distinguish among Article

II treaties, CEAs, and sole executive agreements as U.S. domestic law does.

The Vienna Convention on the Law of Treaties (“the Vienna Convention”)

considers all three types of agreements to be “treaties.”

There also seems

to be relative consensus in U.S. domestic law that Article II treaties and CEAs

are interchangeable instruments.

Part I.A describes the two different types of CEAs. Part I.B briefly traces

the history of CEAs. Part I.C compares CEAs and Article II treaties. Part

37. Koh, supra note 9, at 448.

38. See RESTATEMENT (THIRD) OF THE FOREIGN RELS. L. OF THE U.S. § 303 (AM. L. INST.

1987).

39. H

ENKIN, supra note 20, at 217.

40. Bradley, supra note 9, at 1616–17.

41. See Vienna Convention on the Law of Treaties art. 2, ¶ 1(a), May 23, 1969, 1155

U.N.T.S. 331. The Vienna Convention has awaited Senate approval since February 23, 1978.

Off. of Treaty Affs.,

Treaties Pending in the Senate, U.S. DEP’T OF STATE (Oct. 22, 2019),

https://www.state.gov/treaties-pending-in-the-senate/ [https://perma.cc/5DE3-RWQ5].

Regardless, the executive branch and the courts generally see the Vienna Convention as a

reflection of customary international law. M

ULLIGAN, supra note 10, at 2 n.13.

42. See Vienna Convention on the Law of Treaties, supra note 41, at 333 (defining a

“treaty” as “an international agreement concluded between [countries] in written form and

governed by international law”).

43. See R

ESTATEMENT (THIRD) OF THE FOREIGN RELS. L. OF THE U.S. § 303 cmt. e (“Since

any agreement concluded as a Congressional-Executive agreement could also be concluded

by treaty . . . either method may be used in many cases. The prevailing view is that the

Congressional-Executive agreement can be used as an alternative to the treaty method in every

instance.”). But see generally Julian Nyarko, Giving the Treaty a Purpose: Comparing the

Durability of Treaties and Executive Agreements, 113 A

M. J. INT’L L. 54 (2019) (arguing that

the distinct Article II treaty and CEA processes should be preserved); John C. Yoo, Laws as

Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 M

ICH. L. REV.

757 (2001) (arguing against complete interchangeability); infra Part I.C (detailing differences

between Article II treaties and CEAs).

804 FORDHAM LAW REVIEW [Vol. 89

I.D summarizes the current law surrounding unilateral presidential

withdrawal from Article II treaties.

A. Types of Congressional-Executive Agreements

There are two types of CEAs: ex ante and ex post.

Congress usually

approves ex ante CEAs via legislation before the president even sets out to

negotiate the agreement.

Congress also usually grants the president broad

discretion to “negotiate, conclude, and ratify [an agreement],” and the

agreement rarely returns to Congress for review or approval.

The

authorization is often “vague and enacted many years before the

agreement.”

Authorizing statutes also rarely contain expiration or sunset

provisions, so a president might negotiate an agreement based on a decades-

old authorization granted “in a completely different political reality and

climate.”

Congress may only reject an ex ante CEA by passing a law to

abrogate the agreement or by enacting a joint resolution.

A presidential

veto, however, could surmount any such efforts.

Unlike ex ante CEAs, Congress does not delegate negotiating authority for

ex post CEAs to the president.

Instead, Congress approves ex post CEAs

after the executive branch has finished negotiating an agreement with a

foreign power.

Congress then uses “accompanying implementing

legislation” to approve an ex post CEA.

Both the House and the Senate

must approve the proposed agreement by majority vote for the agreement to

take effect.

B. The Congressional-Executive Agreement in History

While Article II treaties received a great deal of attention during the 1787

Constitutional Convention, there was apparently little to no consideration of

CEAs.

This, however, has not deterred the United States from using CEAs

44. See BRADLEY, supra note 22, at 80.

45. Id.; Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International

Lawmaking in the United States, 117 Y

ALE L.J. 1236, 1255 (2008).

46. Bradley & Goldsmith, supra note 16, at 1213.

47. Id.

48. Ryan Harrington, A Remedy for Congressional Exclusion from Contemporary

International Agreement Making, 118 W.

VA. L. REV. 1211, 1223 (2016).

49. Oona A. Hathaway, Presidential Power over International Law: Restoring the

Balance, 119 Y

ALE L.J. 140, 167 (2009).

50. Id. As a result, scholars have criticized the ex ante CEA as “possess[ing] the form of

congressional-executive cooperation without the true collaboration it implies.” Id. at 213;

accord Bradley & Goldsmith, supra note 16, at 1214.

51. Yoo, supra note 43, at 766.

52. B

RADLEY, supra note 22, at 80.

53. Jean Galbraith, The President’s Power to Withdraw the United States from

International Agreements at Present and Future, 111 AJIL U

NBOUND 445, 447 (2018).

54. HENKIN, supra note 20, at 217; see also U.S. CONST. art. I, § 7, cl. 2; Ryan Harrington,

Understanding the “Other” International Agreements, 108 L

AW LIBR. J. 343, 347 (2016)

(comparing the ordinary legislative process to the CEA approval process).

55. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 H

ARV. L. REV.

798, 808–13 (1995).

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 805

throughout its history. Congress passed statutes as early as 1790 that granted

the president ex ante approval to conclude agreements with foreign

governments.

One early CEA helped to establish an international postal

system.

The fledgling United States also employed CEAs for a slew of

other actions.

Article II treaties still, however, outnumbered CEAs and sole

executive agreements in the nation’s early days.

CEAs became more common in the late 1890s as the William McKinley

administration slowly abandoned protectionism and negotiated bilateral trade

agreements.

Additionally, the United States joined many postwar

multilateral institutions using CEAs

—examples include the United Nations

Educational, Scientific, and Cultural Organization (UNESCO),

the

WHO,

and the IMF and the World Bank

—and as Congress expanded the

president’s authority to negotiate trade agreements with minimal

congressional involvement under certain sections of the Trade Act of 1974.

Several members of Congress introduced measures during the Dwight D.

Eisenhower administration to exercise more control over the use of executive

agreements, but those efforts ultimately failed without Eisenhower’s

support.

And while Congress has at times directed the president to

56. CONG. RSCH. SERV., supra note 24, at 78 (citing Assumption Act (State Debts), ch. 34,

§ 2, 1 Stat. 138, 139 (1790)).

57. Act to Establish the Post-Office and Post Roads Within the United States, ch. 7, § 26,

1 Stat. 232, 239 (1792).

58. See Hathaway, supra note 45, at 1290–91. The United States used CEAs to, for

example, establish diplomatic relations, authorize maritime and admiralty actions, settle

claims or cases, conclude territorial agreements based on previous treaties, exchange prisoners

of war, create joint occupations, and colonize territory. Id.

59. See id. at 1287. From 1789 to 1839, the United States entered into sixty Article II

treaties compared to twenty-seven executive agreements. C

ONG. RSCH. SERV., supra note 24,

at 39 tbl.II-1.

60. Id. at 1293.

61. Id. at 1300.

62. Act of July 30, 1946, Pub. L. No. 79-565, 60 Stat. 712 (1946) (codified as amended at

22 U.S.C. §§ 287m–287t); Constitution of the United Nations Educational, Scientific and

Cultural Organisation, opened for signature Nov. 16, 1945, 61 Stat. 2495. The United States

withdrew from UNESCO under President Ronald Reagan but rejoined under President George

W. Bush. Letter from George Schultz, U.S. Sec’y of State, to Amadou-Mahtar M’Bow, Dir.

Gen., United Nations Educ., Sci., & Cultural Org. (Dec. 28, 1983), reprinted in 23 I.L.M. 220,

220–21 (1984); President George W. Bush, President’s Remarks at the United Nations

General Assembly (Sept. 12, 2002), https://georgewbush-

whitehouse.archives.gov/news/releases/2002/09/20020912-1.html [https://perma.cc/Y3KB-

NZCJ]. The United States withdrew again under Trump, citing “anti-Israel” bias. Press

Statement, Heather Nauert, U.S. Dep’t of State, The United States Withdraws from UNESCO

(Oct. 12, 2017), https://www.state.gov/

the-united-states-withdraws-from-unesco/ [https://perma.cc/VC6T-UB5Y].

63. See supra note 17 and accompanying text.

64. See supra note 20 and accompanying text.

65. Pub. L. No. 93-618, §§ 151–154, 88 Stat. 1978, 2001–08 (codified as amended at 19

U.S.C. §§ 2191–2194). Under this “fast-track authority,” presidents may submit trade

agreements for consideration under special rules that prohibit amendments and strictly limit

debate in both chambers; filibusters are impossible under the statutory time limits. 19 U.S.C.

§ 2191(d), (f)–(g); see also Hathaway, supra note 45, at 1304–05.

66. See G

LEN S. KRUTZ & JEFFREY S. PEAKE, TREATY POLITICS AND THE RISE OF

EXECUTIVE AGREEMENTS: INTERNATIONAL COMMITMENTS IN A SYSTEM OF SHARED POWERS

806 FORDHAM LAW REVIEW [Vol. 89

withdraw from a CEA,

these actions appear to be the exception rather than

the norm.

C. Comparing Congressional-Executive Agreements and Article II Treaties

The executive branch decides whether an international agreement will be

concluded as an Article II treaty, CEA, sole executive agreement, agreement

pursuant to a treaty, or a political commitment.

Part I.C.1 discusses an

example of how the Supreme Court has treated Article II treaties and CEAs

for statutory interpretation purposes. Parts I.C.2 through I.C.6 discuss how

CEAs and Article II treaties differ in terms of: (1) efficiency, (2) democratic

legitimacy, (3) self-execution, (4) public relations value, and (5) ease of

identification and frequency of reporting.

1. Congressional-Executive Agreements and Statutory Interpretation

Although both the Restatement (Third) of the Foreign Relations Law of

the United States

and modern scholarship endorse the CEA as a

constitutional form of international agreement,

the Supreme Court has

never directly ruled on its constitutionality. In Weinberger v. Rossi,

however, the Court did hold that CEAs can qualify as treaties when

interpreting a federal statute.

The case arose when a group of U.S. citizens

employed at the U.S. naval base at Subic Bay in the Philippines sued the

secretary of defense after learning that their employment would be

44–45 (2009). One notable effort, the Bricker Amendment, sought to eliminate executive

agreements and establish Article II treaties as the only legal method to conclude international

agreements, but it failed in the Senate by one vote. Id. at 44.

67. M

ULLIGAN, supra note 10, at 24 (“For example, in the Comprehensive Anti-Apartheid

Act of 1986 . . . Congress instructed the Secretary of State to terminate an air services

agreement with South Africa.”).

68. See infra Part II.

69. See 11 U.S.

DEP’T OF STATE, FOREIGN AFFAIRS MANUAL § 723.3 (2006),

https://fam.state.gov/FAM/11FAM/11FAM0720.html [https://perma.cc/VG78-C4F4] (listing

all of the criteria that the State Department considers when making this determination).

70. T

HE RESTATEMENT (FOURTH) OF THE FOREIGN RELS. L. OF THE U.S. (AM. L. INST.

2018), is only a “partial” revision of the third restatement and does not address executive

agreements.

71. See R

ESTATEMENT (THIRD) OF THE FOREIGN RELS. L. OF THE U.S. § 303(2) (AM. L.

INST. 1987) (“[T]he President, with the authorization or approval of Congress, may make an

international agreement dealing with any matter that falls within the powers of Congress and

of the President under the Constitution.”); see also, e.g., id. cmt. e (“The prevailing view is

that the [CEA] can be used as an alternative to the [Article II] treaty method in every

instance.”); H

ENKIN, supra note 20, at 217 (“[It] is now widely accepted that the

Congressional-Executive agreement is available for wide use, even general use . . . .”). See

generally Ackerman & Golove, supra note 55 (arguing that the CEA is constitutional); Yoo,

supra note 43 (finding support for the CEA in the Constitution’s text, structure, and history).

But see Laurence H. Tribe, Taking Text and Structure Seriously: Reflections of Free-Form

Method in Constitutional Interpretation, 108 H

ARV. L. REV. 1221 (1995) (disagreeing with

Ackerman and Golove and concluding that CEAs are inconsistent with the Constitution).

72. 456 U.S. 25 (1982).

73. See id. at 36.

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 807

terminated pursuant to an agreement

that created a preference for

employing Filipino citizens (“the Base Labor Agreement”).

The Base

Labor Agreement supplemented an earlier agreement

that allowed the

United States to use several Filipino military facilities

(“the Military Bases

Agreement”). The Military Bases Agreement was itself a CEA concluded

under the president’s statutory ex ante authority “to acquire . . . military bases

‘he may deem necessary for the mutual protection of the Philippine Islands

and of the United States.’”

The employees alleged that the Base Labor

Agreement’s hiring preference and the impending termination of their

employment violated a 1971 employment discrimination statute, which

provided:

Unless prohibited by treaty, no person shall be discriminated against by the

Department of Defense or by any officer or employee thereof, in the

employment of civilian personnel at any [U.S. military] facility . . . in any

foreign country because such person is a citizen of the United States.

The Court noted that when the 1971 statute was enacted, there were twelve

other agreements similar to the Base Labor Agreement instituting

preferences for hiring local nationals on U.S. military bases and that four

other similar agreements were subsequently enacted.

Citing a long-

standing principle of statutory construction that avoids construing statutes in

ways that violate international law when other constructions are available,

the Court surveyed the legislative history of the employment discrimination

statute and found no indication that Congress intended to abrogate existing

U.S. obligations under the Base Labor Agreement and its brethren.

As a

result, the Court held that “treaty” as used in the 1971 statute included both

Article II treaties and what it called “executive agreements.”

2. Efficiency Considerations

Turning to the functional differences between CEAs and Article II treaties,

because CEAs only require simple majorities from both chambers of

Congress,

the president may find it much easier to get a CEA approved as

74. Military Bases in the Philippines: Employment of Philippine Nationals, Phil.-U.S.,

May 27, 1968, 19 U.S.T. 5892.

75. Id. at 5892–93; see also Weinberger, 456 U.S. at 27.

76. Agreement Between the United States of America and the Republic of the Philippines

Concerning Military Bases, Phil.-U.S., Mar. 14, 1947, 61 Stat. 4019.

77. Id. at 4020; see also Weinberger, 456 U.S. at 27.

78. See Weinberger, 456 U.S. at 26 (quoting 22 U.S.C. § 1392).

79. Id. at 28–29 (quoting Act of Sept. 28, 1971, Pub. L. No. 92-129, § 106, 85 Stat. 348,

355§).

80. Id. at 32.

81. See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

82. Weinberger, 456 U.S. at 32–36.

83. Id. at 36; see also B. Altman & Co. v. United States, 224 U.S. 583, 600–01 (1912)

(holding that a trade agreement concluded as an ex ante CEA was a “treaty” as defined in the

Judiciary Act of 1891).

84. H

ENKIN, supra note 20, at 217.

808 FORDHAM LAW REVIEW [Vol. 89

compared to an Article II treaty.

The Senate approval process can be

especially vulnerable to partisan politics.

A perfect storm might arise in an

election year if the president’s rival party were to control the Senate and

decline to approve a significant treaty “in order to deny a President a political

advantage.”

Because the Constitution requires a two-thirds Senate majority

vote to approve an Article II treaty, the one-third minority can wield

enormous negotiating power and force concessions from the president.

Professor Lawrence Margolis’s study of presidents from Franklin D.

Roosevelt to Jimmy Carter seems to support this theory.

These presidents

negotiated 13.7 executive agreements for every Article II treaty when their

own political party controlled two-thirds of the Senate; however, when the

opposite party controlled two-thirds, these presidents averaged 24.4

executive agreements for every Article II treaty.

Modern times are not so different. The current political climate is

incredibly divided and fractious.

Former Secretary of State John Kerry,

who previously served as chairman of the Senate Committee on Foreign

Relations, once remarked, “I spent quite a few years trying to get a lot of

treaties through the United States Senate, and, frankly, it has become

physically impossible . . . . [Y]ou can’t pass a treaty anymore.”

At the time

85. Id. at 178.

86. Id.

87. Id.

88. C

ONG. RSCH. SERV., supra note 24, at 19. The Treaty of Versailles, which ended

World War I and established the League of Nations, is perhaps the most famous example of a

polarized Senate defeating an Article II treaty. Treaty of Peace with Germany (Treaty of

Versailles), June 28, 1919, 2 Bevans 43; C

ONG. RSCH. SERV., supra note 24, at 3. However,

President Woodrow Wilson refused to negotiate with Senator Henry Cabot Lodge, the

Republican leader and chair of the Senate Foreign Relations Committee, after Lodge sent

fourteen reservations that would have affected how the treaty was interpreted after ratification.

Senate Leaders: Henry Cabot Lodge: Senate Leader, Presidential Foe, U.S.

SENATE,

https://www.senate.gov/artandhistory/history/common/generic/People_Leaders_Lodge.htm

[https://perma.cc/2Y35-ATU2] (last visited Oct. 3, 2020). The United States never became a

party to the Treaty of Versailles after the Senate failed to reach the required two-thirds vote.

See 50 C

ONG. REC. 4599 (1919).

89. See L

AWRENCE MARGOLIS, EXECUTIVE AGREEMENTS AND PRESIDENTIAL POWER IN

FOREIGN POLICY 46 (1986).

90. Id. Margolis analyzed all international agreements and treaties listed in the Treaties

and Other International Agreements of the United States of America series, which Congress

recognized as an official collection. Id. at 25. His study does not, however, distinguish

between CEAs and sole executive agreements. See id. at 24–27. He also acknowledged that

the series did not contain oral agreements and may also have excluded secret agreements. Id.

at 25.

91. See The Partisan Divide on Political Values Grows Even Wider, P

EW RSCH. CTR. (Oct.

5, 2017), https://www.people-press.org/2017/10/05/the-partisan-divide-on-political-values-

grows-even-wider/ [https://perma.cc/A5U7-6RMA] (“Across 10 measures that Pew Research

Center has tracked on the same surveys since 1994, the average partisan gap has increased

from 15 percentage points to 36 points.”).

92. The Iran Nuclear Agreement: The Administration’s Case: Hearing Before the H.

Comm. on Foreign Affs., 114th Cong. 83 (2015) (statement of John Kerry, Secretary of State).

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 809

of this Note’s publication, approximately fourty Article II treaties still await

Senate approval.

3. Democratic Legitimacy

Unlike Article II treaties, CEAs notably assign the House of

Representatives a role in the international agreement-making process.

The

Framers excluded the House from the Article II treaty process based on their

concerns about the House’s constant fluctuations in membership and the need

to maintain secrecy.

Professor Oona A. Hathaway explains that excluding the House from the

Article II treaty process is especially democratically troubling today because

it ignores democratic procedure.

Only the United States, Mexico, and

Tajikistan relegate part of their national legislatures to significantly smaller

treaty-making roles as compared to their legislative roles, yet still make the

end result binding on domestic law.

Furthermore, modern international law

has expanded beyond diplomatic relations and border disputes to encompass

matters relevant to domestic law and policy (such as education and tax

policy), and legislating in these areas would necessarily require House

participation.

Hathaway also points out significant costs to the two-thirds supermajority

requirement. As of 2008, Senators representing 8 percent of the U.S.

population could stymie the Article II treaty process.

To win a two-thirds

majority vote, presidents must cater to the “polarized extremes of modern

American politics.”

100

By contrast, requiring House participation and simple

majority votes in each chamber, as CEAs do, could capture a broader swath

93. Off. of Treaty Affairs, supra note 41 (listing thirty-seven treaties pending before the

Senate as of October 22, 2019); see also Treaty Documents Received in the Senate During the

Current Congress, U.S.

SENATE (June 18, 2020), https://www.senate.gov/

legislative/trty_rcd.htm [https://perma.cc/7GBA-6R7M] (listing three additional treaties

submitted in 2020).

94. See U.S. C

ONST. art. II, § 2, cl. 2.

95. See, e.g., T

HE FEDERALIST NO. 75, at 452 (Alexander Hamilton) (Clinton Rossiter ed.,

1961) ( discussing how the treaty process requires “[a]ccurate and comprehensive knowledge

of foreign politics; a steady and systematic adherence to the same views; a nice and uniform

sensibility to national character; decision, secrecy, and dispatch, [all of which] are

imcompatible [sic] with the genius of a body [i.e., the House] so variable and so numerous”).

On September 7, 1787, the Constitutional Convention soundly rejected a motion to insert “and

the House of Representatives” after “Senate” in the Treaty Clause. 2 T

HE RECORDS OF THE

FEDERAL CONVENTION OF 1787, at 538 (Max Farrand ed., 1911) [hereinafter FARRAND’S

RECORDS].

96. See Hathaway, supra note 45, at 1308–12.

97. Id. at 1309.

98. Id.

99. Id. at 1310. Hathaway “add[ed] the populations of the eighteen least populous states

and divid[ed] by the total U.S. population.” Id. at 1310 n.218. “[I]n 1788 it would have taken

states accounting for at least fourteen percent of the country’s population” to present the same

hurdle. Id. (citing E

DWARD S. CORWIN, THE CONSTITUTION AND WORLD ORGANIZATION 48–49

(1944)).

100. Id. at 1310.

810 FORDHAM LAW REVIEW [Vol. 89

of the country’s views on any particular international agreement by requiring

appeals to a middle ground.

101

4. Self-Execution

Another distinguishing factor of CEAs as compared to Article II treaties is

that CEAs are self-executing and “have the force of law without the need for

subsequent congressional action.”

102

A single CEA both approves the

international agreement and its obligations and contains the “necessary

domestic implementing legislation.”

103

Conversely, many other Article II

treaties and agreements are considered non-self-executing and require

additional legislation to incorporate the obligations into U.S. domestic

law.

104

This distinction between self-executing and non-self-executing

agreements does not come directly from the Constitution.

105

Rather, Chief

Justice John Marshall crafted the distinction in Foster v. Neilson,

106

where

the Supreme Court held that when treaty terms “import a contract” and a

treaty party agrees to “perform a particular act,” then the legislature must

“execute the contract” before courts will enforce the treaty terms.

107

Much

later, the Court clarified that “[t]he responsibility for transforming an

international obligation arising from a non-self-executing treaty into

domestic law falls to Congress.”

108

Even though the House does not formally participate in approving Article

II treaties, it plays an important functional role because Article II treaties

often require “legislative implementation (if only by appropriation of

funds).”

109

Many Senate-approved Article II treaties have languished

unfulfilled without implementing legislation.

110

The CEA avoids this

problem because both chambers cooperate to approve the agreement.

111

Furthermore, CEAs “are generally presumed [to be] self-executing unless

specified otherwise . . . . The legislation [creating CEAs] provides, in effect,

101. See id.

102. M

ULLIGAN, supra note 10, at 38.

103. John C. Yoo, Rational Treaties: Article II, Congressional-Executive Agreements, and

International Bargaining, 97 C

ORNELL L. REV. 1, 36–37 (2011).

104. M

ULLIGAN, supra note 10, at 38. A non-self-executing agreement might, for example,

contain a provision obligating the United States to pass laws to meet the agreement’s

objectives. See H

ENKIN, supra note 20, at 199–200.

105. Under the Supremacy Clause, all Article II treaties are considered “the supreme law

of the land.” U.S. C

ONST. art. VI, cl. 2.

106. 27 U.S. (2 Pet.) 253 (1829), abrogated on other grounds by United States v.

Percheman, 32 U.S. (7 Pet.) 51 (1833).

107. Id. at 314.

108. Medellin v. Texas, 552 U.S. 491, 525–26 (2008). Such responsibility necessarily

requires House participation. See U.S.

CONST., art. I, § 7, cl. 2. But see DAVID L. SLOSS, THE

DEATH OF TREATY SUPREMACY: AN INVISIBLE CONSTITUTIONAL CHANGE 7–8 (2016)

(summarizing how understandings of “self-executing” and “non-self-executing” have changed

over the centuries).

109. H

ENKIN, supra note 20, at 217.

110. CONG. RSCH. SERV., supra note 24, at 20.

111. H

ENKIN, supra note 20, at 217.

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 811

one-stop shopping: the same act that provides the authority to accede to the

international agreement can also make the necessary statutory changes to

implement the obligation incurred.”

112

5. Constitutional Legitimacy

Despite the CEA’s features,

113

the Article II treaty may still enjoy greater

constitutional legitimacy. Because it is the only type of international

agreement mentioned in the Constitution

114

and one that requires a high

degree of bipartisan cooperation,

115

some argue that the Article II treaty

sends a strong signal about U.S. intentions.

116

Although the CEA pathway

is readily available,

117

the Article II treaty remains the overwhelmingly

preferred method for peace treaties and agreements concerning mutual

defense, security arrangements, arms control, human rights, extradition, and

the environment.

118

Professor Harold Hongju Koh, who served as the State

Department’s legal adviser during the Obama administration, once remarked

that, given the high vote threshold, entering into an Article II treaty “send[s]

the world . . . a powerful political message about how united our nation is

behind a particular international obligation.”

119

An Article II treaty’s public relations value was especially evident in 2002

after President George W. Bush finished negotiating new nuclear arms

limitations with Russian President Vladimir V. Putin. Bush would have

preferred an informal “gentleman’s agreement” and contemplated

concluding the agreement as an executive agreement.

120

Pentagon officials

also wanted to avoid a “legally binding” agreement to retain the necessary

flexibility to adjust U.S. nuclear arms in response to international security

developments.

121

112. Hathaway, supra note 45, at 1321.

113. See supra Parts I.C.2–4.

114. See supra note 11 and accompanying text.

115. See supra notes 88, 100 and accompanying text.

116. See Lisa L. Martin, The President and International Commitments: Treaties as

Signaling Devices, 35 P

RESIDENTIAL STUD. Q. 440, 445 (2005) (“While an agreement’s form

likely has a number of consequences, one of the most important may be its impact on the

beliefs of other parties to it. That is, agreements are signaling devices.”). But see Yoo, supra

note 103, at 37 (arguing that CEAs are stronger signals of U.S. intent because they are more

difficult to terminate than Article II treaties); infra notes 213–14and accompanying text.

117. See supra note 43 and accompanying text.

118. Yoo, supra note 43, at 803–13. The Paris Agreement, which was concluded outside

the Article II treaty process, is a notable counterexample. See Bradley & Goldsmith, supra

note 16, at 1203–04 (“President Obama made [the Paris Agreement] unilaterally without

seeking congressional approval.”); supra note 16 and accompanying text.

119. Harold Hongju Koh, Remarks: Twenty-First-Century International Lawmaking, 101

EO. L.J. 725, 728 (2013).

120. K

RUTZ & PEAKE, supra note 66, at 71; see also The President’s News Conference with

President Vladimir Putin of Russia, 1 P

UB. PAPERS 1391, 1395–96 (Nov. 13, 2001),

https://www.govinfo.gov/content/pkg/PPP-2001-book2/pdf/PPP-2001-book2-doc-pg1391-

2.pdf [https://perma.cc/YMJ4-JY69] (quoting Bush: “I looked the man in the eye and shook

his hand, but if we need to write it down on a piece of paper, I’ll be glad to do that”).

121. A

MY F. WOOLF, CONG. RSCH. SERV., RL31448, NUCLEAR ARMS CONTROL: THE

STRATEGIC OFFENSIVE REDUCTIONS TREATY 3 (2011).

812 FORDHAM LAW REVIEW [Vol. 89

Putin, however, wanted a “full-blown” Article II treaty.

122

Secretary of

State Colin L. Powell agreed an Article II treaty would “provide political

cover for President Putin” when the State Duma (the lower house of the

Russian national legislature) considered ratifying the agreement because “a

formal treaty carried more weight with the Russians.”

123

The Senate

Committee on Foreign Relations also preferred a formal Article II treaty

since the agreement “would most likely include significant obligations by the

United States.”

124

Bush ultimately acquiesced and submitted the agreement

to the Senate for approval as an Article II treaty.

125

6. Ease of Identification and Frequency of Reporting

CEAs, unlike Article II treaties, are shrouded in opacity. Article II treaties

are relatively visible because they are labeled as treaties when sent to the

Senate and publicly approved and ratified.

126

Ex post CEAs, however,

merely receive a bill number when submitted to Congress and require

locating both the agreement and the authorizing statute or resolution.

127

ante CEAs may never reach Congress at all.

128

Locating an ex post CEA and the authorizing statute or resolution can be

complicated because the State Department’s treaty database, Treaties and

Other International Acts Series (TIAS), lists Article II treaties and non-

Article II treaties without clearly distinguishing between the two.

129

TIAS is

also an incomplete list—the relevant reporting statute permits the secretary

of state to refrain from publishing international agreements binding the

United States that: (1) are not Article II treaties; (2) are unlikely to attract

sufficient public interest (or the “public disclosure of the text . . . would, in

the [President’s] opinion . . . be prejudicial to [U.S.] national security”); and

122. KRUTZ & PEAKE, supra note 66, at 71 (citing Martin, supra note 116, at 448).

123. Id. at 72.

124. Letter from Sen. Joseph R. Biden Jr., Chairman, U.S. Senate Comm. on Foreign Rels.,

& Sen. Jesse Helms, Ranking Member, U.S. Senate Comm. on Foreign Rels., to Colin L.

Powell, Sec’y of State (Mar. 15, 2002), https://data.bloomberglp.com/assets/sites/2/

20020315-LETTER-Biden-Helms-to-Powell.pdf [https://perma.cc/5FYQ-FP2A].

125. Treaty Between the United States of America and the Russian Federation on Strategic

Offensive Reductions, Russ.-U.S., May 24, 2002, S. T

REATY DOC. NO. 107-8, at III

(transmitting the Strategic Offensive Reductions Treaty to the Senate for its advice and

consent).

126. Bradley & Goldsmith, supra note 16, at 1209.

127. Harrington, supra note 54, at 354–58. This process does not apply to ex ante CEAs,

because those agreements are concluded after Congress grants statutory authority to the

president and the agreement rarely returns to Congress for consideration. See supra notes 45–

46 and accompanying text.

128. Bradley & Goldsmith, supra note 16, at 1213.

129. The President, Congress, and Shared Authority over International Accords: Hearing

Before the S. Foreign Rels. Comm., 115th Cong. 8 n.12 (2017) (testimony of Curtis A.

Bradley, William Van Alstyne Professor, Duke Law School), https://www.foreign.senate.gov/

imo/media/doc/120517_Bradley_Testimony.pdf [https://perma.cc/KXS4-K3H6]. TIAS also

does not distinguish between the different types of executive agreements. Id.; see, e.g., 2020

Treaties and Agreements, U.S.

DEP’T OF STATE, https://www.state.gov/2020-TIAS/

[https://perma.cc/NN6Y-ECNG] (last visited Oct. 3, 2020).

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 813

(3) will be provided to outside parties upon request.

130

Furthermore, only

unclassified agreements and treaties are published in TIAS.

131

The executive branch also routinely fails to satisfy its statutory reporting

obligations.

132

In response to repeated instances of presidents concluding

secret agreements,

133

Congress passed the Case-Zablocki Act

134

in 1972.

Under this Act, the U.S. secretary of state must send Congress the text of any

non-Article II treaty binding the United States within sixty days of the

agreement’s effective date.

135

If the president determines that transmission

would jeopardize U.S. national security interests, the agreement must be sent

to the Senate Committee on Foreign Relations and the House Committee on

Foreign Affairs in a classified manner.

136

Furthermore, executive agencies

and departments entering into an international agreement on the United

States’s behalf must also transmit the agreement to the State Department

within twenty days of the signing.

137

The legislative history of the Case-Zablocki Act reflects Congress’s

concern that the executive branch’s deficiencies in reporting non-Article II

treaties were hindering Congress’s foreign policy responsibilities.

138

Unfortunately, administrative agencies actually often take more than twenty

days to transmit agreements to the State Department.

139

If an agreement does

reach the State Department, it often languishes in a backlog before being

organized and published; if the agreement is published, it may not be clearly

labeled as a non-Article II treaty.

140

Professors Curtis A. Bradley and Jack

130. 1 U.S.C. § 112a. Outside of Freedom of Information Act requests, however, the State

Department does not “provide the texts of treaties or international agreements in response to

individual inquiries.” Off. of Treaty Affs.,

How to Find Treaty and Agreement Texts, U.S.

DEP’T OF STATE (Nov. 29, 2018), https://www.state.gov/texts-of-agreements [https://

perma.cc/E3CG-U48S].

131. See Harrington, supra note 54, at 354. Federal regulations also exempt certain types

of international agreements from publication in TIAS. 22 C.F.R. § 181.8(a)–(b) (2019). The

State Department must submit an annual report to Congress detailing any international

agreements excluded from TIAS. Id. § 181.8(d).

132. See Bradley & Goldsmith, supra note 16, at 1273 (arguing that Case-Zablocki Act

“duties are often honored in the breach”).

133. See C

ONG. RSCH. SERV., supra note 24, at 22. The 1945 Yalta Agreement is a

prominent example. Id. Presidents Lyndon B. Johnson and Richard M. Nixon also entered

into secret international agreements without informing Congress. K

RUTZ & PEAKE, supra note

66, at 46.

134. Pub. L. No. 92-403, 86 Stat. 619 (1972) (codified as amended at 1 U.S.C. § 112b).

135. 1 U.S.C. § 112b(a).

136. Id.

137. Id.

138. See S. R

EP. NO. 92-591, at 3 (1972) (“[T]he principle of mandatory reporting of

agreements with foreign countries to the Congress is more than desirable; it is, from a

constitutional standpoint, crucial and indispensable. For the Congress to accept anything less

would represent a resignation from responsibility and an alienation of an authority which is

vested in the Congress by the Constitution. If Congress is to meet its responsibilities in the

formulation of foreign policy, no information is more crucial than the fact and content of

agreements with foreign nations.”). But see H.R. R

EP. NO. 92-1301, at 3 (1972) (“Congress

does not want to be inundated with trivia. At the same time, it would wish to have transmitted

all agreements of any significance.”).

139. Bradley & Goldsmith, supra note 16, at 1273.

140. Id. at 1273–74.

814 FORDHAM LAW REVIEW [Vol. 89

L. Goldsmith argue that this lack of internal organization results in “reporting

of non-Article II agreements to Congress [that] is often late and is perpetually

incomplete.”

141

Additionally, instruments failing to satisfy certain criteria,

as determined by the State Department, do not constitute “international

agreements” that need to be reported in TIAS or to Congress.

142

The State Department does have internal procedures governing the

conclusion and signing of international agreements.

143

Commonly called the

“Circular 175 Procedures,” they require federal agencies to draft legal

memoranda detailing the legal bases for any proposed international

agreements and to submit these memoranda to the State Department’s Office

of the Legal Adviser.

144

Circular 175 memoranda “take[] into account the

views of the relevant government agencies and interested bureaus within the

Department” and are also required when the executive branch considers

terminating an international agreement.

145

However, the department

generally withholds the memoranda from both Congress and the general

public.

146

This secrecy and lack of transparency only widens the information

gap between the executive branch and Congress—a major reason for the

significant accumulation of executive power in foreign affairs.

147

D. Unilateral Presidential Termination of Article II Treaties

Before delving into the law surrounding unilateral presidential withdrawal

from CEAs, surveying the law surrounding unilateral presidential withdrawal

from Article II treaties is a vital starting point. What looms largest in the

Article II treaty debate, however, are the actions—or inactions—of Congress

and the federal courts.

148

Today, it appears that a president possesses the

141. Id. at 1274. For example, in 2004, the House learned that the State Department had

failed to transmit over 600 classified and unclassified international agreements to Congress

since 1997. 150 C

ONG. REC. 25,704 (2004) (statement of Rep. Henry Hyde). Representative

Henry Hyde, then the Chairman of the House Committee on Foreign Relations, said, “The full

knowledge of these agreements by the Congress . . . is critical to the ability of Congress to

execute Constitutional oversight responsibilities.” Id.

142. 22 C.F.R. §§ 181.2, 181.3(a) (2019).

143. C

ONG. RSCH. SERV., supra note 24, at 234–35.

144. 11

U.S. DEP’T OF STATE, supra note 69, § 724.3; Off. of Treaty Affs., Treaty

Procedures, U.S. D

EP’T OF STATE (Nov. 26, 2018), https://www.state.gov/treaty-procedures/

[https://perma.cc/C979-676T].

145. 11

U.S. DEP’T OF STATE, supra note 69, § 724.8.

146. Bradley & Goldsmith, supra note 16, at 1209 n.16. For a rare example of a released

Circular 175 memorandum, see Memorandum of Law from the Department of State on

Circular 175 Procedure: Request for Authority to Negotiate and Conclude an Agreement

(May 15, 1981), https://www.cia.gov/library/readingroom/docs/CIA-RDP85-00024R000400

170003-6.pdf [https://perma.cc/YD5B-YFDT].

147. See M

ARTIN S. FLAHERTY, RESTORING THE GLOBAL JUDICIARY: WHY THE SUPREME

COURT SHOULD RULE IN U.S. FOREIGN AFFAIRS 146–57 (2019) (discussing the information

asymmetries between the executive and legislative branches in foreign affairs); infra notes

162–66 and accompanying text.

148. See generally Bradley, supra note 26 (arguing that the general consensus on

presidential termination of Article II treaties emerged over a long period of executive power

accumulation and congressional inaction). But see generally Jean Galbraith, Response, Treaty

Termination as Foreign Affairs Exceptionalism, 92 T

EX. L. REV. SEE ALSO 121 (2014)

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 815

authority to withdraw unilaterally from an Article II treaty.

149

Part I.D.1

reviews the arguments in favor of the president’s unilateral withdrawal

power. Part I.D.2 summarizes how Congress and the federal courts have

reacted to prior unilateral presidential withdrawals. Part I.D.3 discusses

Goldwater v. Carter,

150

the only case challenging a president’s authority to

withdraw unilaterally from an international agreement to reach the Supreme

Court.

1. Arguments Supporting the President’s Unilateral Withdrawal Authority

There are three main arguments often cited to support the president’s

constitutional authority to withdraw unilaterally from an Article II treaty.

Part I.D.1.a describes one argument based on the Vesting Clause.

151

Part

I.D.1.b focuses on another argument based on the Appointments Clause.

152

Part I.D.1.c examines a third argument based on the president’s unique

position in foreign affairs.

a. The Vesting Clause Argument

The Vesting Clause argument contends that any authority that is

“‘executive’ in nature” and not specifically assigned to Congress or the

judiciary rests with the president, even if not specifically assigned in Article

II.

153

The Framers would have understood that “executive power” included

foreign affairs power.

154

That the Constitution requires the president to share

the treaty power with the Senate “does not transform [the treaty power] into

[a] quasi-legislative function[].”

155

Additionally, because the Treaty Clause

(framing the general consensus instead as a product of a gradual custom of deference to the

executive branch in matters involving foreign affairs, known as foreign affairs

exceptionalism).

149. See R

ESTATEMENT (FOURTH) OF THE FOREIGN RELS. L. OF THE U.S. § 313(1) (AM. L.

INST. 2018) (“According to established practice, the President has the authority to act on behalf

of the United States in . . . terminating U.S. treaty commitments and in withdrawing the United

States from treaties.”).

150. 444 U.S. 996 (1979) (mem.).

151. U.S. C

ONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of

the United States of America.”).

152. Id., § 2, cl. 2 (“[The President] shall nominate, and by and with the Advice and

Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, . . .

and all other Officers of the United States”).

153. See Bradley, supra note 26, at 780; see also M

ICHAEL D. RAMSEY, THE

CONSTITUTION’S TEXT IN FOREIGN AFFAIRS 158 (2007) (applying this thesis to Article II treaty

termination). Alexander Hamilton, writing under the pen name “Pacificus,” also described

the president as the “organ of intercourse between the Nation and foreign Nations.” Alexander

Hamilton, Pacificus No. I (June 29, 1793), reprinted in 1

CLASSICS OF AMERICAN POLITICAL

AND

CONSTITUTIONAL THOUGHT 634, 636 (Scott J. Hammond et al., eds., 2007).

154. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign

Affairs, 111 Y

ALE L.J. 231, 253 (2001).

155. Memorandum from John C. Yoo, Deputy Assistant Att’y Gen. & Robert J. Delahunty,

Special Couns., to John Bellinger III, Senior Assoc. Couns. to the President & Legal Adviser

to the Nat’l Sec. Council, on the Authority of the President to Suspend Certain Provisions of

the ABM Treaty 5 (Nov. 15, 2001) [hereinafter ABM Treaty Termination Memo],

https://www.justice.gov/sites/default/files/olc/legacy/2009/08/24/memoabmtreaty

816 FORDHAM LAW REVIEW [Vol. 89

is located in Article II, executive branch lawyers argue “that the treaty power

remains an executive one.”

156

Therefore, because the power to withdraw

from or terminate an Article II treaty is not mentioned in the Constitution, let

alone assigned to a specific branch, it must rest with the president.

157

b. The Appointments Clause Argument

The Appointments Clause argument analogizes the treaty power to the

Appointments Clause and asserts that the president does not need

congressional approval to withdraw from an Article II treaty.

158

Proponents

of this argument point to Article II, Section 2, Clause 2, where the

Constitution enables the president to enter into Article II treaties and make

appointments but also limits those powers through the requirement for Senate

advice and consent.

159

The president takes initiative in both settings and

waits for Senate consent, and both the Treaty Clause and the Appointments

Clause “govern instrumentalities by which the President carries out other

presidential powers.”

160

Therefore, the power to withdraw unilaterally from

Article II treaties “is necessary to allow the President to conduct foreign

affairs pursuant to his constitutional obligations.”

161

c. The “Sole Organ” Argument

This third argument supporting a presidential power to withdraw

unilaterally from an Article II treaty rests on the view that the president is the

“sole organ” of diplomatic affairs and therefore should receive greater

11152001.pdf [https://perma.cc/L5WR-EEE3]; accord RAMSEY, supra note 153, at 159

(“[P]ower over treaties was a traditional ‘executive’ function. To enhance checks and

balances, the [Constitution] gave the Senate a role in treatymaking. It did not give the Senate

a role in treaty withdrawal, so that power remained part of the President’s executive power.”).

A later memorandum disavowed certain parts of the ABM Treaty Termination Memo

discussing the president’s unilateral authority to suspend treaty obligations. See Memorandum

for the Files from Steven G. Bradbury, Principal Deputy Assistant Att’y Gen., on the Status

of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11,

2001, at 8–9 (Jan. 15, 2009), https://www.justice.gov/sites/default/files/olc/legacy/2009/08/

24/memostatusolcopinions01152009.pdf [https://perma.cc/F4RF-66MQ].

156. ABM Treaty Termination Memo, supra note 155, at 6.

157. Id. But see generally Curtis A. Bradley & Martin S. Flaherty, Executive Power

Essentialism and Foreign Affairs, 102 M

ICH. L. REV. 545 (2004) (levying textual and

historical challenges against the Vesting Clause argument).

158. Kristen E. Eichensehr, Treaty Termination and the Separation of Powers, 53 V

A. J.

INT’L L. 247, 268–71 (2013).

159. U.S. C

ONST. art. II, § 2, cl. 2; Eichensehr, supra note 158, at 269.

160. Eichensehr, supra note 158, at 269–70. The president carries out the foreign affairs

power partly through the treaty mechanism, and the president carries out the power to execute

laws by appointing subordinate officers. Id. The Supreme Court has previously upheld the

president’s power to remove executive officers without Senate approval. See, e.g.,

Humphrey’s Ex’r v. United States, 295 U.S. 602, 629, 631–32 (1935); Myers v. United States,

272 U.S. 52, 163–64 (1926).

161. Eichensehr, supra note 158, at 270; see also id. at 272 (arguing that much of the Myers

reasoning could be extended to the treaty termination question).

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 817

deference in that area.

162

This argument traces its origins to an 1800 speech

in which then congressman John Marshall called the president “the sole organ

of the nation in its external relations, and its sole representative with foreign

nations.”

163

The Supreme Court picked up this thread over a century later in

United States v. Curtiss-Wright Export Corp.,

164

when the Court reviewed

presidential conduct in foreign affairs with greater leniency and referred to

“the very delicate, plenary and exclusive power of the President as the sole

organ of the federal government in the field of international relations.”

165

The sole organ argument draws its strength from “both the unitary nature of

the Executive Branch as well as the President’s constitutional authority to

make treaties and appoint and receive ambassadors.”

166

Deciding to

terminate an Article II treaty necessarily requires alerting the other treaty

party or parties—a responsibility that undoubtedly falls to the executive

branch.

167

Professor Bradley, who also served as a reporter for the Restatement

(Fourth) of the Foreign Relations Law of the United States, writes that the

sole organ argument may not necessarily establish a president’s unilateral

withdrawal authority but suggests “that Congress cannot validly require the

President to terminate a[n] [Article II] treaty.”

168

Professor Kenneth C.

Randall doubts that the president is the “sole organ in [Article II] treaty

making” at all because the Constitution requires the Senate to provide its

advice and consent to treaties.

169

Executive branch lawyers argue

differently: the power to terminate an Article II treaty rests with the president

as a “necessary corollary” to exercising the president’s other plenary foreign

affairs powers.

170

Therefore, recognizing “that the Senate or the Congress

also has a right to participate in treaty termination would be inconsistent with

the President’s constitutional authority over foreign affairs.”

171

162. See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936); Bradley,

supra note 26, at 782.

163. 10 A

NNALS OF CONG. 613 (1800); see Bradley, supra note 26, at 782.

164. 299 U.S. 304 (1936).

165. Id. at 320 (emphasis added). The Curtiss-Wright ruling has apparently inspired many

executive branch justifications along the lines of “Curtiss-Wright, therefore I (the President)

am right.” The author thanks Professor Martin S. Flaherty for this anecdote. Curtiss-Wright,

however, did not implicate withdrawal from Article II treaties; instead, the case challenged a

presidential action taken pursuant to authority delegated from Congress. Id. at 312–15; Alison

Peck, Withdrawing from NAFTA, 107 G

EO. L.J. 647, 665 (2019).

166. Bradley, supra note 26, at 782.

167. Id.

168. Id.

169. Kenneth C. Randall, The Treaty Power, 51 O

HIO ST. L.J. 1089, 1109 (1990).

170. ABM Treaty Termination Memo, supra note 155, at 7. The ABM Treaty Termination

Memo lists two examples: a president terminates a treaty as part of recognizing a foreign

government or to “reflect the fact that the treaty has become obsolete, to sanction a treaty

partner for violations, to protect the United States from commitments that would threaten its

national security, to condemn human rights violations, or to negotiate a better agreement.” Id.

at 7–8.

171. Goldwater v. Carter, 481 F. Supp. 949, 960 (D.D.C. 1979) (summarizing the

government’s argument defending the unilateral termination), rev’d, 617 F.2d 697 (D.C. Cir.

1979) (en banc) (per curiam), and vacated, 444 U.S. 996 (1979) (mem.).

818 FORDHAM LAW REVIEW [Vol. 89

2. Congressional Reactions to Unilateral Withdrawals

Despite the lively academic debate, Congress’s actions (or lack thereof)

loom large. Save for two notable occasions where senators sued in federal

court to enjoin unilateral presidential treaty terminations,

172

presidents have

generally been able to withdraw from Article II treaties without much protest

from Congress since 1927.

173

Both federal lawsuits were dismissed without

reaching the merits, so neither sheds much light on the question.

174

According to Bradley’s extensive review of the history of treaty

terminations in the United States, up until the twentieth century, Congress

generally approved of presidents’ decisions to withdraw from treaties either

before or after the actual withdrawal; sometimes, Congress even directed

presidents to withdraw.

175

The Calvin Coolidge administration broke new

ground when it withdrew from a U.S.-Mexican smuggling convention in

1927 without congressional approval.

176

Unilateral presidential withdrawal

continued under President Franklin D. Roosevelt, whose administration

withdrew from extradition and commercial treaties based on the Curtiss-

Wright “sole organ” argument

177

and the rise of fascism abroad.

178

This

trend continued generally unchallenged for roughly the next four decades.

179

As Justice Felix Frankfurter argued in his concurring opinion to

Youngstown Sheet & Tube Co. v. Sawyer

180

(Steel Seizure), custom can be a

powerful interpretive tool because how government branches have

previously exercised authority can lend meaning to the Constitution and

inform our understandings of how the separation of powers is supposed to

operate: “[A] systematic, unbroken, executive practice, long pursued to the

knowledge of the Congress and never before questioned, engaged in by

Presidents . . . may be treated as a gloss on ‘executive Power’ vested in the

172. Kucinich v. Bush, 236 F. Supp. 2d. 1, 2 (D.D.C. 2002); Goldwater, 481 F. Supp. at

949.

173. See Bradley, supra note 26, at 805–16 (recounting a history of unilateral presidential

terminations of or withdrawals from Article II treaties).

174. See Goldwater, 444 U.S. at 997 (remanding the case back to the district court with

directions to dismiss the complaint); Kucinich, 236 F. Supp. 2d at 2 (granting defendants’

motion for summary judgment due to nonjusticiability, lack of standing, and political question

doctrine).

175. Bradley, supra note 26, at 789–96.

176. Id. at 805.

177. See supra notes 164–65 and accompanying text.

178. Bradley, supra note 26, at 806–08.

179. Id. at 809–10 (summarizing how the Harry S. Truman, Eisenhower, and John F.

Kennedy administrations each withdrew from various international agreements).

180. 343 U.S. 579 (1952).

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 819

President by [Article II].”

181

In Dames & Moore v. Regan,

182

the Court

interpreted a history of congressional acquiescence to presidential settlement

of claims to be quasi-approval of the challenged executive action.

183

Some

argue that acquiescence could be considered either agreement that the

president’s action is lawful and constitutional or a waiver of Congress’s

institutional rights.

184

Granted, there may be underlying reasons behind

congressional inaction: the legislative process is slow and cumbersome, and

depending on the situation, there may have been time constraints;

185

alternatively (or additionally), Congress may not have known that the

president intended to terminate an Article II treaty.

186

3. Challenges to Unilateral Withdrawals from Article II Treaties in Federal

Court

The first (and, to date, only) serious challenge to the president’s authority

to withdraw unilaterally from an Article II treaty arose after President Jimmy

Carter announced in 1978 that the United States would terminate the bilateral

Mutual Defense Treaty

187

with Taiwan.

188

Carter’s decision was part of a

long campaign to normalize diplomatic relations with the People’s Republic

of China.

189

Several proposed Senate resolutions accused the president of

“encroach[ing] on Congress’s constitutional role with respect to treaty

termination generally and the Taiwan Mutual Defense Treaty in

181. Id. at 610–11 (Frankfurter, J., concurring); see also FLAHERTY, supra note 147, at 99–

100. The Supreme Court later endorsed this view of historical practice in a 9-0 majority

opinion and cited Frankfurter’s Youngstown concurrence. NLRB v. Noel Canning, 134 S. Ct.

2550, 2550–60 (2014). Justice Frankfurter held that the challenged presidential action was

unconstitutional because Congress had not explicitly authorized the action despite a long

history of approving prior similar actions ex post. Youngstown, 343 U.S. at 602–05

(Frankfurter, J., concurring).

182. 453 U.S. 654 (1981).

183. Id. at 681, 688.

184. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of

Powers, 126 H

ARV. L. REV. 411, 433–36 (2012) (summarizing various arguments).

185. Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes,

64 B.U. L. R

EV. 109, 140–41 (1984) (suggesting, for example, that a tight time frame might

explain the lack of congressional response to the deployment of U.S. Marines to retake a

merchant ship in 1975 because “[t]he entire incident took place in less than forty-eight hours,

ending before a report was transmitted to Congress under the War Powers Resolution”).

186. See supra notes 37, 132–42 and accompanying text.

187. Mutual Defense Treaty Between the United States of America and the Republic of

China, Taiwan-U.S., Dec. 2, 1954, 6 U.S.T. 433.

188. Terence Smith, Link to Taiwan Ends, N.Y. T

IMES (Dec. 16, 1978),

https://www.nytimes.com/1978/12/16/archives/link-to-taiwan-ends-carter-in-tv-speech-says-

we-recognize-reality.html?searchResultPosition=3 [https://perma.cc/W6DK-4FLY].

189. See, e.g., Memorandum from Cyrus Vance, U.S. Sec’y of State, et al., to President

Jimmy Carter (May 10, 1978), reprinted in 13

U.S. DEP’T OF STATE, FOREIGN RELATIONS OF

THE

UNITED STATES, 1977–1980: CHINA 357, 358 (David P. Nickles & Adam M. Howard,

eds., 2013) (listing terminating the Mutual Defense Treaty as one of China’s conditions for

establishing diplomatic relations with the United States); China Policy, O

FF. OF THE

HISTORIAN, https://history.state.gov/milestones/1977-1980/china-policy [https://perma.cc/

2N8A-2NWD] (last visited Oct. 3, 2020).

820 FORDHAM LAW REVIEW [Vol. 89

particular.”

190

Senator Barry M. Goldwater and a group of twenty-five then

current and former lawmakers sued in federal court seeking declaratory and

injunctive relief on the ground that Carter’s announcement “violated their

legislative right to be consulted and to vote on the termination.”

191

The

district court held that Carter needed either the Senate’s advice and consent

or majority approval from both chambers of Congress to terminate the

treaty.

192

The appellate court considered the merits and reversed, holding

that Carter had not exceeded his constitutional authority.

193

The Supreme

Court, however, vacated the appellate court’s judgment and remanded the

case back to the district court with instructions to dismiss—without offering

a majority rationale for the dismissal.

194

The Court was fractured: Justice

Lewis F. Powell Jr. argued that the case was “not ripe for judicial review”

because Congress had not taken action;

195

Justice William H. Rehnquist and

three others argued that the case presented a “nonjusticiable political dispute”

for the political branches to resolve;

196

Justice Harry A. Blackmun (whom

Justice Byron R. White joined) and Justice William J. Brennan Jr. would have

heard the case on the merits.

197

In Goldwater’s wake, the executive branch has continued to terminate

Article II treaties without congressional approval or participation.

198

2002, the State Department Office of the Legal Adviser disclosed that the

United States had terminated thirty Article II treaties through unilateral

presidential action since 1980,

199

apparently with little congressional or

academic protest.

200

Since 1979, only two federal cases have challenged

unilateral presidential withdrawals from Article II treaties.

201

History

190. Koh, supra note 9, at 438.

191. Goldwater v. Carter, 481 F. Supp. 949, 950 (D.D.C. 1979), rev’d, 617 F.2d 697 (D.C.

Cir. 1979) (en banc) (per curiam), vacated, 444 U.S. 996 (1979) (mem.).

192. Id. at 950–51.

193. Goldwater, 617 F.2d at 699.

194. Goldwater, 444 U.S. at 996.

195. Id. (Powell, J., concurring). The Court later recognized that congressional objection

falls along a “spectrum.” Dames & Moore v. Regan, 453 U.S. 654, 669 (1981). Professor

Michael J. Glennon notes that “the enactment of a statute expressly prohibiting the action in

question” would be the strongest evidence of congressional objection; rejecting or amending

a bill authorizing the challenged action could also qualify as objection. Glennon, supra note

185, at 139. Therefore, the proposed Senate resolutions that protested Carter’s termination of

the Mutual Defense Treaty were not official congressional objections because the resolutions

were never approved by the Senate, let alone the House. See id.

196. Goldwater, 444 U.S. at 1003 (Rehnquist, J., concurring).

197. Id. at 1006 (Blackmun, J., dissenting in part); id. at 1006–07 (Brennan, J., dissenting).

198. But see Koh, supra note 9, at 439–40 (arguing that Goldwater is actually a narrow

precedent that “supports the nonreviewability of one attempted unilateral termination”).

199. Treaties terminated by the President,

2002 DIGEST OF UNITED STATES PRACTICE IN

INTERNATIONAL LAW, ch. 4, § B(4)(b), at 202–06.

200. Bradley, supra note 26, at 815.

201. See generally Kucinich v. Bush, 236 F. Supp. 2d 1 (D.D.C. 2002) (challenging George

W. Bush’s withdrawal from the 1972 U.S.-U.S.S.R. Anti-Ballistic Missile Treaty); Beacon

Prods. Corp. v. Reagan, 633 F. Supp. 1191 (D. Mass. 1986), aff’d, 814 F.2d 1 (1st Cir. 1987)

(challenging President Ronald Reagan’s withdrawal from the Treaty of Friendship,

Commerce, and Navigation with Nicaragua); Bradley, supra note 26, at 815.

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 821

repeated itself twice: the district courts dismissed both cases for raising

nonjusticiable political questions.

202

Based on the history of Article II treaty terminations and how Congress

and the courts have reacted (or not reacted), it appears that the other branches

of government now generally accept that a president may unilaterally

terminate or withdraw from an Article II treaty. If the trend continues to

solidify into a custom, it may eventually sway a judge should a case

challenging a president’s unilateral withdrawal from an Article II treaty ever

arise, surmount the hurdles that its predecessors faced, and elicit a written

opinion on the merits.

203

Ultimately, the longer Congress and the courts wait

to address this issue, “the more entrenched the practice becomes.”

204

II.

OPPOSING VIEWPOINTS ON UNILATERAL PRESIDENTIAL WITHDRAWAL

FROM

CONGRESSIONAL-EXECUTIVE AGREEMENTS

If international law were the only relevant legal regime to consider, this

Note would be moot. Under international law, withdrawal from international

agreements is generally governed by the agreements themselves (via specific

provisions authorizing parties to withdraw) or the Vienna Convention.

205

Unilateral withdrawals by heads of state are uncontroversial because the

Vienna Convention recognizes a country’s head of state as a “sufficient

national representative for purposes of treaty termination and withdrawal.”

206

Under international law, any unilateral withdrawal by a U.S. president is an

effective withdrawal and cancels obligations on the international plane.

207

Whether a president may withdraw unilaterally from a CEA is not as well

settled in U.S. domestic law.

208

Part II.A presents one viewpoint: Congress

must be involved in the decision to withdraw from a CEA. Part II.B presents

a second viewpoint that analogizes CEAs to Article II treaties: presidents

may withdraw unilaterally because unilateral withdrawal from Article II

treaties has become generally accepted.

202. Kucinich, 236 F. Supp. 2d at 2; Beacon Prods. Corp., 633 F. Supp. at 1199.

203. See Bradley, supra note 26, at 785 (“When constitutional controversies implicate

foreign relations, invocations of historical practice are particularly common, in part because

of the lower level of judicial review in that area.”); supra notes 181–83 and accompanying

text.

204. Bradley, supra note 26, at 822.

205. Galbraith, supra note 53, at 446. If an agreement lacks a withdrawal provision, then

article 56 of the Vienna Convention governs and parties may withdraw if they intend to

withdraw or the nature of the agreement implies a withdrawal right. Vienna Convention on

the Law of Treaties, supra note 41, at 345.

206. Bradley, supra note 9, at 1624–25. The Vienna Convention defines “treaty”

differently from U.S. domestic law. See supra note 42.

207. Id. at 1625.

208. See supra note 31 and accompanying text. The author is unaware of any litigation

challenging a president’s unilateral withdrawal from a CEA. This Note focuses on situations

where the CEA or relevant underlying statute does not dictate the permitted manner of

withdrawal and where Congress has not directed the president to withdraw from a CEA.

See

ULLIGAN, supra note 10, at 24; supra notes 67–68 and accompanying text.

822 FORDHAM LAW REVIEW [Vol. 89

A. Viewpoint One: Withdrawals Require Congressional Approval

Although the scholars discussed in this section agree that Congress must

approve a president’s decision to withdraw from a CEA, they disagree as to

why Congress should be involved. Part II.A.1 summarizes one argument that

focuses on the similarities between the process used to pass a bill and the

process used to conclude a CEA. Part II.A.2 presents an argument that

focuses on the importance of an agreement’s subject matter. Part II.A.3

describes the “mirror principle” argument, which focuses on the amount of

congressional involvement in concluding a CEA.

1. Congressional-Executive Agreements Are (Virtually) Equivalent to

Statutes

One school of thought relies on the procedural similarities between passing

a statute and concluding a CEA—some commentators even view CEAs as

statutes themselves.

209

Although the Constitution does not prescribe a

specific procedure for terminating statutes, the Supreme Court has spoken

definitively on the issue: “Amendment and repeal of statutes, no less than

enactment, must conform with” the bicameralism and presentment

requirements of Article I.

210

To terminate a federal statute, therefore,

Congress must pass a bill abrogating the first statute and the president must

sign that abrogating bill.

211

Therefore, this school argues, the only way to

withdraw from a CEA is to enact a statute repealing the agreement.

212

practice, this might prove to be infeasible: when Professor John C. Yoo

broke down the math behind a hypothetical repeal, he found that “[i]f the

twenty-five smallest states oppose [withdrawal], the President may need to

persuade Senators [representing up to] 84% of the population to consent.”

213

Considering the possibility of a filibuster, the president might actually need

to sway Senators representing up to 90 percent of Americans.

214

Because the

209. See, e.g., Yoo, supra note 103, at 36 (“Congressional-executive agreements . . . are

statutes. They are passed using the same process as other laws enacted within Congress’s

Article I, Section 8 powers.”). But see John K. Setear, The President’s Rational Choice of a

Treaty’s Prereatification Pathway: Article II, Congressional-Executive Agreement, or

Executive Agreement?, 31 J. L

EGAL STUD. S5, S34–S35 (2002) (arguing that because there is

no veto mechanism for CEAs and the President may ultimately “invalidate the congressional

action,” CEAs should not be considered statutes).

210. INS v. Chadha, 462 U.S. 919, 954 (1983); cf. Clinton v. City of New York, 524 U.S.

417, 438 (1998) (“There is no provision in the Constitution that authorizes the President to

enact, to amend, or to repeal statutes.”).

211. Yoo, supra note 103, at 37.

212. Id.; see also Christopher B. Stone, Signaling Behavior, Congressional-Executive

Agreements, and the SALT I Interim Agreement, 34 G

EO. WASH. INT’L L. REV. 305, 353

(2002).

213. Yoo, supra note 103, at 37.

214. Id. These proportions lead Yoo to conclude that CEAs are actually stronger signals

of U.S. commitment to international obligations. Id.; accord Hathaway, supra note 45, at 1337

(stating that while Article II treaties may appear to require greater consensus (by virtue of the

requisite two-thirds Senate vote) than that ordinarily needed to pass a law, “it is far from clear

that a majority vote in the Senate and House requires any less of a consensus”).

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 823

president cannot enact a statute unilaterally, according to this argument the

president effectively cannot unilaterally withdraw from a CEA.

2. The Role of Subject Matter

A second school of thought takes a structural stance and focuses on the

subject matter of the CEA at issue and where that subject matter appears in

the Constitution. Professor Randall argues that when an international

agreement concerns a topic found exclusively in Article I of the Constitution

or alluded to in both Articles I and II, then any agreement concerning that

topic could only be concluded as an Article II treaty or a CEA (as opposed to

a sole executive agreement).

215

Because any agreement involving such a

topic required legislative approval when first concluded, Congress must also

approve the withdrawal.

216

This process encourages reciprocity at both the

inception and termination of an international agreement because Congress

participates at all three steps of an agreement’s life: when it is created, when

it is in force, and when it ends.

217

Randall then applies his theory to five different subject matter

categories.

218

In his view, the president may not withdraw unilaterally from

disarmament agreements;

219

mutual defense agreements;

220

or humanitarian

agreements (including agreements that protect basic human rights, terrorism

agreements, and hijacking agreements)

221

because the president and

Congress share authority over those areas.

222

Although the president is the

commander in chief, Congress’s authority over disarmament and mutual

defense stems from its Article I powers.

223

Because humanitarian

agreements implicate criminal law by “defin[ing] and prohibit[ing] certain

types of egregious conduct as being international crimes,” they fall within

Congress’s power to “define and punish Piracies and Felonies committed on

the high Seas, and Offenses against the Law of Nations.”

224

The president

may, however, withdraw from international agreements concerning the

recognition of foreign governments, because that authority rests with the

215. See Randall, supra note 169, at 1114–15. Randall believes CEAs and Article II

treaties are “interchangeable.” Id. at 1115.

216. See id.

217. Id.

218. Id. at 1116–22.

219. Id. at 1116–17; see Arms Control and Disarmament Act, 22 U.S.C. § 2573(b) (“No

action shall be taken . . . that would obligate the United States to reduce or limit the Armed

Forces or armaments of the United States . . . except pursuant to the [President’s] treaty-

making power . . . or unless authorized by the enactment of further affirmative legislation by

the Congress . . . .” (emphasis added)).

220. Randall, supra note 169, at 1117–18.

221. Id. at 1119–21.

222. See generally id. at 1116–22.

223. Id. at 1117. Congress is charged with raising and maintaining an army and navy as

well as regulating the military. U.S.

CONST. art. I, § 8, cls. 12–16. Congress also provides for

the nation’s “common Defence and general Welfare.” Id. cl. 1. Randall even argues that

Congress’s power to declare war grants it shared authority over disarmament and mutual

defense. Randall, supra note 169, at 1117; see U.S.

CONST. art. I, § 8, cl. 11.

224. Randall, supra note 169, at 1120 (quoting U.S.

CONST. art. I, § 8, cl. 10).

824 FORDHAM LAW REVIEW [Vol. 89

president alone,

225

and from military agreements concluded during a

declared war, because the president is the commander in chief.

226

One commentator, Professor Joel P. Trachtman, expands on this argument

and contends that the Commerce Clause’s placement in Article I effectively

bars the president from unilaterally withdrawing from trade agreements.

227

By negative inference, the “dormant” Commerce Clause precludes states

from exercising authority over interstate commerce.

228

Another negative

inference, which Trachtman calls the “presidential dormant Commerce

Clause,” similarly precludes the president from exercising authority over

interstate and foreign commerce

229

and deprives the president of independent

constitutional authority “either to remove barriers to trade or to impose

barriers to trade, without congressional authorization.”

230

Trachtman also

finds support in American Insurance Ass’n v. Garamendi,

231

where the

Supreme Court appeared to draw a distinction between foreign commerce

powers and other foreign affairs powers.

232

The Garamendi distinction

implies that the president may not independently take commerce-related

actions without congressional approval.

233

3. The “Mirror Principle”

Professor Koh argues that, in addition to considering the agreement’s

subject matter, one must also consider the degree of congressional

participation needed to enter into the agreement.

234

He rejects a one-size-

225. Id. at 1118–19 (“The [President’s] recognition power impliedly comes from the

President’s authority to ‘receive Ambassadors and other Public Ministers’ and perhaps from

the authority to ‘appoint Ambassadors [and] other public Ministers and Consuls.’ Article I

does not afford the Congress any recognition power.” (second alternation in original)

(footnotes omitted) (quoting U.S.

CONST. art. II, § 2, cl. 2)).

226. Id. at 1121–22 (“[T]he President is commander in chief of the armed forces . . . [so]

the executive branch may govern the topics of military strategy, war prisoners, and armistice.

Although article I empowers the Congress to declare war and to raise and arm the military, it

does not permit Congress to oversee or implement military decisions once the troops have

been committed.” (footnote omitted)).

227. See Joel P. Trachtman, Power to Terminate U.S. Trade Agreements: The Presidential

Dormant Commerce Clause Versus an Historical Gloss Half Empty, 51 I

NT’L LAW. 445, 447–

49 (2018). The Commerce Clause grants Congress the power “[t]o regulate Commerce with

foreign Nations, and among the several States.” U.S. C

ONST., art. I, § 8, cl. 3. Recall that trade

agreements are often concluded as CEAs. See supra note 65 and accompanying text.

228. Trachtman, supra note 227, at 447–48.

229. Id. at 448. The Supreme Court seemed to endorse this approach when it stated that

“[t]he Constitution expressly grants Congress, not the President, the power to ‘regulate

Commerce with foreign Nations.’” Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S.

298, 329 (1994) (quoting U.S.

CONST. art. I, § 8, cl. 3).

230. Trachtman, supra note 227, at 448.

231. 539 U.S. 396 (2003).

232. Trachtman, supra note 227, at 448–49 (“While Congress holds express authority to

regulate public and private dealings with other nations in its war and foreign commerce

powers, in foreign affairs the President has a degree of independent authority to act.”).

233. See id. at 449.

234. See Koh, supra note 9, at 455.

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 825

fits-all approach

235

and cautions that “an overbroad unilateral executive

withdrawal power” could lead to “overly hasty, partisan, or parochial

withdrawals” and weaken all future presidents’ “negotiating credibility and

leverage.”

236

He argues for the “mirror principle,” which states that if the

agreement’s subject matter required congressional approval, then Congress

must also approve the withdrawal.

237

The Constitution’s silence on

international agreements, therefore, suggests the Framers favored resolving

these issues on a case-by-case basis.

238

To apply the mirror principle to CEAs, Koh utilizes Justice Robert H.

Jackson’s famous tripartite framework, which was first articulated in his own

Youngstown concurring opinion.

239

According to Jackson’s framework,

presidential power is at its “zenith” if Congress has explicitly or implicitly

approved the president’s unilateral withdrawal; therefore, the president may

withdraw from the CEA without issue.

240

If Congress expressly disapproves

of the president’s withdrawal, then the president’s power is at its “low ebb”

and a withdrawal could survive only if the “President were operating within

a zone of exclusive presidential authority, such as state recognition.”

241

But

if Congress has not expressed any approval or disapproval (“or could not

organize itself to make a collective statement”),

242

then the president falls

within the “twilight zone” and whether the president may withdraw

unilaterally “depend[s] on proof that Congress did more to approve that

action than merely acquiesce.”

243

235. See id. at 461; see also Amirfar & Singh, supra note 9, at 451 (“The best answer may

be that there is no one right answer—the President’s power to withdraw from international

agreements exists on a continuum, like any presidential power.”).

236. Koh, supra note 9, at 450. As an example, Koh cites Trump’s denuclearization

negotiations with North Korea against the backdrop of his withdrawal from the Iran Nuclear

Deal. Id.

237. See id. at 455. Hathaway articulates a similar view arguing for reciprocal

congressional participation but does not weigh the significance of an agreement’s subject

matter. Hathaway, supra note 45, at 1334.

238. See Koh, supra note 9, at 461 (quoting Laurence H. Tribe, A Constitutional Red

Herring: Goldwater v. Carter, N

EW REPUBLIC, Mar. 17, 1979, reprinted in Treaty

Termination: Hearings on S. Res 15 Before the S. Comm. on Foreign Rels., 96th Cong. 588,

589 (1979)). Catherine Amirfar and Ashika Singh advocate for a similar approach. See

generally Amirfar & Singh, supra note 9, at 445 (calling Jackson’s framework “helpful”).

239. Koh, supra note 9, at 465–66.

240. Id.

241. Id. at 466; see also Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090

(2015) (holding that the president holds the exclusive authority to recognize foreign

governments).

242. Koh, supra note 9, at 466. In January 2019, for example, the House of Representatives

passed the NATO Support Act, which was presumably aimed at the executive branch and

would prohibit using appropriations to withdraw from NATO. H.R. 676, 116th Cong. § 5

(2019). That same month, senators introduced a resolution to require Senate advice and

consent or majority approval from both chambers of Congress before any U.S. withdrawal

from NATO. S.J. Res. 4, 116th Cong. § 1 (2019). Neither act can be considered a cohesive

congressional action without approval from the other chamber. See INS v. Chadha, 462 U.S.

919, 944–51 (1983) (concluding that because the Constitution requires legislative action via

bicameralism and presentment, Congress may only act using this procedure).

243. Koh, supra note 9, at 466.

826 FORDHAM LAW REVIEW [Vol. 89

B. Viewpoint Two: The President Does Not Need Congressional Approval

Professor Bradley advances a very different argument. If one

acknowledges that a president may terminate

244

an Article II treaty

unilaterally, then a president may also terminate a CEA unilaterally.

245

Bradley responds to three arguments from Trachtman’s article supporting

congressional participation, particularly as they relate to international trade:

(1) CEAs involving trade implicate “exclusive” congressional powers, (2) a

president essentially terminates a statute when terminating a CEA, and (3)

the sparse history of presidential terminations of CEAs does not endorse

unilateral presidential terminations.

246

Bradley responds to each argument in turn. First, he distinguishes between

authority to conclude an agreement and authority to terminate it.

247

Just

because trade agreements require congressional approval does not

necessarily mean that Congress must also approve the president’s decision to

terminate an agreement.

248

Rather, an “exclusive” congressional power to

regulate in a certain subject area (such as commerce) merely precludes a

president from entering into a sole executive agreement pertaining to that

subject area.

249

Second, Bradley argues that CEAs cannot be considered statutes—despite

their procedural similarities—because CEAs “bind the United States to

international commitments,” which Congress cannot accomplish alone.

250

Furthermore, that any legislation implementing a CEA may survive the

agreement “does not itself disallow a [unilateral] presidential termination

authority.”

251

Finally, Bradley argues that there is no convincing reason to consider the

historical practice of terminating CEAs independently from the practice of

terminating Article II treaties.

252

Presidents have terminated Article II

treaties, even those relating to trade or commerce, throughout history,

253

and

244. Bradley uses “termination” and not “withdrawal.” For a brief discussion of the

distinction between the two terms, see supra note 27.

245. See Bradley, supra note 9, at 1617.

246. See id. at 1627–28. Trachtman’s article was still a working paper when Bradley’s

article was published. Id. at 1617 n.6 (citing Trachtman’s article as an unpublished

manuscript). Bradley’s article is still notable as one of the few scholarly articles that

exclusively addresses the issue of unilateral presidential withdrawals from CEAs.

247. Id. at 1632.

248. Id.

249. See id. at 1631.

250. Id. at 1632–33.

251. See id. at 1634. Although the legislation itself may remain in place, Bradley argues

that the president alone would not have the authority to terminate the treaty’s domestic effects.

Id. at 1641. But see Julian Ku & John Yoo, Opinion, Trump Might Be Stuck with NAFTA,

L.A. T

IMES (Nov. 29, 2016, 4:00 AM), https://www.latimes.com/opinion/op-ed/la-oe-yoo-ku-

trump-nafta-20161129-story.html [https://perma.cc/P5Q8-PS63] (arguing that agreements

enacted as statutes “can be reversed only by another, repealing statute enacted by the House

and the Senate and then signed by the president”); supra Part II.A.1.

252. Bradley, supra note 9, at 1638.

253. Id. Only three Article II treaty terminations generated protest from individual

lawmakers in the form of federal lawsuits—all of which were dismissed. See supra Part I.D.3.

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 827

the United States has also terminated many CEAs without incident.

254

For

Bradley, the existing custom of unilateral presidential terminations is a

sufficient constitutional basis for future unilateral terminations.

255

Bradley also argues that an international agreement’s formality affects a

president’s unilateral withdrawal authority.

256

While some commentators

see CEAs as more resistant to unilateral termination based on the majority

congressional vote necessary to approve them,

257

Bradley takes the inverse

view: the more formal the agreement, the less constitutional authority a

president possesses to terminate the agreement unilaterally.

258

Because

“Article II treaties are the most formal means of concluding international

agreements and involve what is in practice the most difficult procedure,”

presidents have less constitutional authority to terminate Article II treaties

unilaterally.

259

Since CEAs are less formal than Article II treaties

(presumably because they are not mentioned in the Constitution), presidents

have greater constitutional authority to terminate CEAs unilaterally.

260

III.

FINDING MIDDLE GROUND AND A WAY FORWARD

This part argues for a middle ground between the approaches presented in

Part II. In certain situations where U.S. national security interests are at risk,

the president should be able to withdraw from relevant CEAs unilaterally

because applying Koh’s Youngstown-type analysis that gauges congressional

response would be impractical, dangerous, and inefficient. In all other cases,

Koh’s framework is the appropriate analytical method to determine whether

congressional participation is required in withdrawing from an agreement.

This middle ground, however, will fall short of its objectives unless the

current reporting deficiencies

261

are addressed.

Part III.A discusses the shortcomings of each of the arguments reviewed

in Part II. Part III.B proposes a middle-of-the-road approach that utilizes the

Youngstown framework with exceptions for emergency situations. This Note

concludes with Part III.C, which calls for a new reporting statute to support

the proposal advanced in Part III.B.

254. See Bradley, supra note 9, at 1638–39; Bradley & Goldsmith, supra note 16, at 1225.

255. See Bradley, supra note 9, at 1638–39. The Supreme Court has stated that long-

standing governmental practice may be afforded great weight when determining the

distribution of authority between the legislative and executive branches in the face of silent or

ambiguous constitutional text. See NLRB v. Noel Canning, 134 S. Ct. 2550, 2559–60 (2014).

But see infra notes 268–74 and accompanying text (challenging the idea of a custom of

uncontested, unilateral presidential withdrawals from CEAs).

256. See Bradley, supra note 9, at 1628.

257. See supra notes 211–12, 234, 237 and accompanying text.

258. See Bradley, supra note 9, at 1628.

259. Id.

260. See id. Bradley does note that international law may pose additional constraints on a

president’s ability to withdraw unilaterally if the president violates international law principles

when withdrawing. See id. at 1640–41; supra notes 205–07 and accompanying text.

261. See supra note 37 and accompanying text.

828 FORDHAM LAW REVIEW [Vol. 89

A. Addressing the Shortcomings

The overarching argument described in Part II.A—that presidents may

only withdraw from CEAs with approval from both chambers of

Congress

262

—has a significant weakness: it does not account for emergency

scenarios where time is of the essence and a president may deem it necessary

to terminate an agreement immediately. Professor Louis Henkin speculated

that the Framers were primarily concerned with restricting the president’s

ability to bind the United States to international commitments.

263

Shaking

off these commitments, by contrast, “is less risky and may have to be done

quickly, and is often done piecemeal, or ad hoc, by various means and

acts.”

264

In the event of an armed attack on the United States or U.S. interests (or

another equally dangerous emergency scenario), a president may need to

withdraw from agreements rapidly to defend the country and may not have

the luxury of time to wait for Congress to organize itself and make its wishes

clear. Given the lackluster state of the current reporting regime, Congress

may not be informed about the nature of the agreement, the unfolding

emergency scenario, or the implications of withdrawing from the

agreement—or that the agreement even exists at all—adequately enough to

issue a meaningful statement of its wishes.

265

Allowing the president to

withdraw unilaterally would be more practical, but this authority should be

strictly limited to these dire situations to assuage Koh’s articulated concerns

about “overly hasty, partisan, or parochial withdrawals” at the whim of a

president.

266

Bradley’s arguments in favor of unilateral withdrawal authority have their

own weaknesses

267

—namely, that the available history of unilateral

presidential withdrawals from CEAs is too sparse to support his argument.

268

Any number of factors could be responsible for the sparse history: the

executive branch’s tardiness in reporting concluded agreements,

269

the State

Department’s own organizational shortcomings in publishing the

agreements,

270

the lack of a statutory obligation to report decisions to

terminate international agreements,

271

or Congress’s own failure to monitor

CEAs in general.

272

Considering the difficulties in challenging a withdrawal

262. See supra Part II.A.

263. See H

ENKIN, supra note 20, at 212.

264. Id.

265. See supra notes 88, 100 and accompanying text.

266. See Koh, supra note 9, at 450.

267. See supra Part II.B.

268. To date, the author is unaware of any extensive study or tabulation of the number of

times a president has withdrawn from a CEA without participation from Congress.

269. See supra note 139 and accompanying text.

270. See supra note 140 and accompanying text.

271. See supra note 37 and accompanying text.

272. See Treaties: A Historical Overview, U.S. S

ENATE, https://www.senate.gov/

artandhistory/history/common/briefing/Treaties.htm [https://perma.cc/7AM3-AVFH] (last

visited Oct. 3, 2020) (implying that many international agreements are too trivial to warrant

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 829

via a lawsuit,

273

that courts have not seen serious challenges to the president’s

ability to withdraw should not be construed as congressional

acquiescence.

274

Additionally, Bradley is too quick to dismiss the striking similarities

between the process used to pass legislation and the process used to approve

CEAs.

275

Claiming that CEAs cannot be considered statutes merely because

the agreements impose international commitments on the United States is

unpersuasive. Domestic statutes also impose commitments on the United

States government—commitments to appropriate federal dollars for foreign

aid, for example—and Congress cannot create these commitments without

the president’s participation.

276

Bradley is also too hasty in arguing that accepting unilateral withdrawal or

termination authority for Article II treaties means that the president may also

withdraw unilaterally from CEAs.

277

First, despite a decades-long custom of

congressional silence in the face of a unilateral withdrawal from or

termination of an Article II treaty,

278

the nation’s highest court has never

directly ruled on the question.

279

The Supreme Court dismissed its only case

challenging this type of action and did so based on fractured reasoning that

did not reach the merits.

280

Second, CEAs are not Article II treaties. Though

theoretically interchangeable,

281

the agreements are very distinct. As

compared to Article II treaties, CEAs use a different approval process

282

and

are generally used to address different subject areas.

283

CEAs and Article II

treaties also differ in terms of efficiency, democratic legitimacy, self-

execution, and constitutional legitimacy.

284

Furthermore, granting the

president blanket unilateral withdrawal authority cedes more congressional

power to the president. This adds another dimension to the reservoir of

senators’ attention); see also CONG. RSCH. SERV., supra note 24, at 23 (“Members and

committees of Congress do not want to be deluged with trivia . . . .”).

273. Individual Justices raised concerns about nonjusticiable political questions and

ripeness in Goldwater. 444 U.S. 996 (1979). Any member of Congress bringing suit would

also likely have trouble demonstrating Article III standing. See Raines v. Byrd, 521 U.S. 811,

829–30 (1997) (holding that senators and congressmen alleging an injury to Congress did not

have a “sufficient ‘personal stake’ in the dispute” and failed to allege the “concrete injury”

required to establish Article III standing).

274. But see Dames & Moore v. Regan, 453 U.S. 654, 681 (1952) (stating that Congress’s

custom of indirectly acknowledging settlements via executive agreement by “frequently

amend[ing] [a statute] to provide for particular problems arising out of settlement

agreements,” together with legislative history, “reveal[ed] that Congress has accepted the

authority of the Executive to enter into settlement agreements”).

275. See Bradley, supra note 9, at 1632.

276. See U.S.

CONST. art. I, § 7, cl. 2.

277. See supra note 245 and accompanying text.

278. See supra Part I.D.2.

279. See supra Parts I.D.2–3.

280. See supra notes 194–97 and accompanying text.

281. See supra note 43 and accompanying text.

282. See supra note 22 and accompanying text.

283. See supra notes 117–18 and accompanying text.

284. See supra Part I.C.

830 FORDHAM LAW REVIEW [Vol. 89

power that the president already wields in foreign affairs and tips the balance

of power even further in the president’s favor.

285

B. Proposing a Youngstown-Inspired Middle Ground Approach

Determining whether or not a president may withdraw unilaterally from

any particular CEA requires a combination of the two main approaches laid

out in Part II. As Koh suggests, this question should be resolved on a case-

by-case basis using Justice Jackson’s Youngstown analytical framework.

286

Not only is this framework already the preferred method for tackling

separation of powers issues,

287

but it also acknowledges a role for Congress.

By looking to Congress’s actions at the termination of a CEA, this framework

respects Congress’s role in approving the agreement in the first place.

288

Using Justice Jackson’s framework and evaluating congressional approval or

disapproval also acknowledges the striking procedural similarities between

passing a bill and concluding a CEA.

289

An example may be illustrative here. Suppose a future president has

determined that membership and participation in the IMF is no longer in the

United States’s best interest

290

and decides to end the country’s

membership.

291

Some protesting commentators will argue that the United

States may only withdraw if Congress passes and the president signs a new

statute abrogating the earlier statute that authorized joining the IMF.

292

Other commentators will look to the subject matter of the CEA through

which the United States joined the IMF

293

and perhaps argue that

participating in the IMF, with its goal of “ensur[ing] the stability of the

international monetary system” and practice of lending money to

countries,

294

falls under Congress’s exclusive foreign commerce authority;

therefore, Congress must approve the proposed withdrawal.

295

Commentators endorsing Bradley’s view will argue that all of this

deliberation is unnecessary because the president has the constitutional

authority to withdraw unilaterally from the CEA based on the apparent

285. See FLAHERTY, supra note 147, at 146–57 (discussing information asymmetries

between the executive branch and Congress in foreign affairs).

286. See supra notes 239–43 and accompanying text.

287. See Dames & Moore v. Regan, 453 U.S. 654, 669 (1981) (calling Justice Jackson’s

framework “analytically useful”); see also Medellin v. Texas, 552 U.S. 491, 524 (2008)

(noting that “Justice Jackson’s familiar tripartite scheme provides the accepted framework for

evaluating executive action in” separation of powers issues).

288. See supra notes 38–39 and accompanying text.

289. See supra Part II.A.1.

290. Recall that the United States entered into the IMF by way of a CEA. See supra note

20.

291. For purposes of this example, assume that the president’s withdrawal complies with

any withdrawal requirements under the IMF membership agreement and international law.

292. See supra Part II.A.1.

293. See supra Part II.A.2.

294. About the IMF, I

NT’L MONETARY FUND, https://www.imf.org/en/About [https://

perma.cc/3STG-SLEC] (last visited Oct. 3, 2020) (choose “What We Do” from dropdown).

295. See supra Part II.A.3.

2020] CONGRESSIONAL-EXECUTIVE AGREEMENTS 831

authority to withdraw unilaterally from Article II treaties.

296

Still others

might determine that the IMF concerns foreign affairs more than it does

foreign commerce and decide that the president may withdraw

unilaterally.

297

Using Justice Jackson’s framework here would acknowledge that

Congress was partly responsible for the United States’ membership in the

IMF. If Congress has explicitly or implicitly expressed its approval (e.g., by

passing a resolution) of the president’s plan to withdraw from the IMF, then

the president’s authority would be at its “zenith” and the president could

withdraw without issue.

298

If Congress has expressly disapproved of the

president’s intention to withdraw from the IMF (again, by way of a

resolution, a bill rider, or voting down a proposed withdrawal), then the

president’s authority would be at its “low ebb.”

299

In this case, the

president’s withdrawal would be unconstitutional unless it fell squarely

within the president’s exclusive Article II authority.

300

If, however, Congress was silent on the issue of withdrawing from the

IMF, then the president’s authority would fall within the “twilight zone.”

301

One might investigate whether Congress has a history of expressing approval

or disapproval in similar situations or whether similar withdrawals have been

attempted in the past.

302

Ultimately, one would have to determine if

Congress’s inaction constitutes acquiescence.

303

One important consideration that the Youngstown approach does not

capture is the possibility that emergency circumstances may require the

president to withdraw from a CEA even before Congress has had a chance to

express its approval or disapproval. This concern echoes a similar one raised

at the 1787 Constitutional Convention, where the Framers worried about

imposing too many limits on the president’s ability to respond to emergency

situations.

304

296. See supra Part II.A.3.

297. See supra note 162 and accompanying text.

298. See supra note 240 and accompanying text.

299. See supra note 241 and accompanying text.

300. Id. Cf. Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015). Whether

withdrawing from an international institution falls within exclusive presidential authority is

outside the scope of this Note.

301. See supra note 243 and accompanying text.

302. See Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 597–603,

609 (1952) (Frankfurter, J., concurring) (finding the challenged presidential action to be

unconstitutional because Congress had not explicitly authorized the action despite a long

history of approving prior similar actions ex post).

303. See supra note 243 and accompanying text. Such a question lays outside the scope of

this Note.

304. F

ARRAND’S RECORDS, supra note 95, at 318. An early draft of the Constitution granted

Congress the power to “make” war. Id. Charles Pinkney expressed concerns that Congress

acted too slowly and was rarely in session and that the House of Representatives “would be

too numerous for such deliberations,” and Roger Sherman remarked that the President should

“be able to repel . . . war.” Id. The Framers approved a change from “make” to “declare.” Id.;