The Death of Article II Treaties?

This piece is cross-posted at Lawfare.

President Trump has submitted only one treaty to the Senate so far in his presidency. That is a historic low, and it is the latest sign that the Article II treaty process may be dying.

First, a little background. The only process specified in the U.S. Constitution for making international agreements is the one set forth in Article II, which requires that the president obtain the advice and consent of two-thirds of the Senate. For many decades, however, presidents have concluded the vast majority of international agreements through executive agreement processes involving either majorities in both houses of Congress (“congressional-executive agreements”) or unilateral presidential action (“sole executive agreements”). Some commentators, including one of the present authors (Hathaway) have suggested that ex post congressional-executive agreements in particular—those approved by Congress after negotiation, like the North American Free Trade Agreement—have become legally interchangeable with Article II treaties, or at least nearly so. But ex post congressional-executive agreements are even rarer than treaties. The vast majority of international agreements, 93 percent or so, do not receive post-negotiation approval from any chamber of Congress. They are, instead, either ex ante congressional-executive agreements (in which Congress authorizes the president in advance to make and conclude agreements), executive agreements pursuant to a prior treaty or sole executive agreements (the President acting alone).

Despite the availability of these alternatives, presidents in the past have still used the Article II process for some agreements. Most human rights, extradition and arms control agreements have been submitted to the Senate, for example. Sometimes presidents submit agreements to the Senate even though it is clear that consent from two-thirds of that body will be difficult to obtain, and in many instances those treaties are either not reported out of the Senate Foreign Relations Committee or even defeated on the Senate floor. Sometimes the Senate has insisted that certain agreements, such as arms control agreements, be concluded through the Article II process, and presidents have sometimes acquiesced. In other words, Article II treaties, although a small fraction of the overall number of agreements concluded by the executive, have until recently played a meaningful role in U.S. foreign relations law and policy. That no longer seems to be the case.

To be fair to Trump, the role of the Article II treaty was in decline before he came into office. Presidential use of the Article II process dropped to historic post-World War II lows during the Obama administration. During his eight years in office, President Obama submitted only 38 treaties to the Senate, and the Senate approved only 15 of them. (Since Obama left office, the Senate has approved six more of the treaties he submitted.) In comparison, President George W. Bush submitted well over 100 treaties to the Senate during his two terms, and the Senate approved most of them. That rate puts Bush roughly on par with prior administrations in the twentieth century. Between 1930 and 1999, the Senate approved an average of just over 15 Article II treaties per year (for data, see page 39 of this Congressional report).

Even against Obama’s lackluster backdrop, Trump’s record is stark: As we enter the third year of his presidency, he has submitted just one treaty to the Senate—a treaty amending an earlier fisheries agreement.

There are a number of possible reasons for this sharp decline. Some are specific to Trump and some reflect broader trends. The main Trump-specific reason is that his administration may not prioritize international agreements. There is plenty of evidence for this view, including Trump’s renunciation of numerous important treaties and other agreements in his first two years. Moreover, as it prepares to enter its third year, the Trump administration still has not sent the Senate a Treaty Priority List, which is used by presidents to signal to the Senate the treaties that it would like the Senate to focus on. It should be noted, though, that the Trump administration has continued to conclude an array of typical executive agreements based upon purported statutory authorization. (This can be seen in the State Department’s online publication, Texts of International Agreements to Which the United States is a Party). In addition, presidents are sometimes slow to pursue approval of Article II treaties early in their presidencies because they tend to be more focused on domestic legislative priorities. (George W. Bush did not submit a treaty to the Senate until his second year in office.)

As for broader trends: There may be a relative drop-off in the number of multilateral treaties, and it may be that some forms of bilateral treaties—on topics like tax and extradition—are in less demand because the United States has completed such treaties with most nations. Also, as Cindy Buys has noted, the downward trend might reflect a fall-off from the 1990s boom in agreements related to the end of the Cold War and the height of globalization, as well as the diminution of agreements that resulted from the post-9/11 wars and the economic downturn in 2008. (That explanation, however, would seem to be belied by the continued robust number of congressional-executive agreements and sole executive agreements concluded by the United States during this same period.) On the domestic side, the Senate has been a barrier to all but the most uncontroversial Article II treaties. It is difficult, if not impossible, to get two-thirds of the Senate to agree on anything, much less a treaty. And it can take valuable committee and floor time to simply see a treaty stalled or defeated. This is probably why most Article II treaties in recent years have proceeded on unanimous consent. But this process means that even a single member of the Senate can block a treaty from proceeding. This political reality may help explain why Obama, who was seen as generally favorable to international cooperation, had a thin record of treaty submissions.

Regardless of the reasons for the decline, the Article II treaty process appears to be nearly dead, at least for now. It could be resurrected in the future, but at this time it seems unlikely that any new significant international agreements will be made through this constitutional process. As we shall explain in a future post, this has not stopped the U.S. government from making international agreements—instead, it is doing so through a less transparent, and in many cases less democratic, process. It may be that the Article II process is outdated and should be allowed to die. But, if so, more consideration should be given to the international agreement practice that is replacing it, and to whether the appropriate legal architecture is in place to oversee and check that practice. 

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About the Author(s)

Curtis A. Bradley

William Van Alstyne Professor of Law at Duke Law School, and co-director of the Law School’s Center for International and Comparative Law. You can follow him on Twitter (@CurtisBradley20).

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Jack Goldsmith

Henry L. Shattuck Professor at Harvard Law School, Senior Fellow at the Hoover Institution, Former Assistant Attorney General of the Office of Legal Counsel (2003-2004), Former Special Counsel to the Department of Defense (2002-2003). You can follow him on Twitter (@jacklgoldsmith).