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April 9th, 2021

Executive Agreement Purpose

83 See McLaughlin, C.H., The Scope of the Treaty Power in the States II, 43 Minn. L. Rev. 651, 721 (1958) (calculates that 5.9% of the agreements were concluded between 1883 and 1957 as exclusive executive agreements or “presidential agreements”); see also International Agreements: An Analysis of Executive Regulations and Practices, at 22, Senate Committee on Foreign Relations, 95th Congress, 1st Sess. (1977) (calculation that 5.5% of the agreements from 1946 to 1972 were exclusively based on executive power). Before conducting the analysis, it is important to correct any limitations of this file. Although TIF is the most comprehensive collection of international agreements to date, there is no data set listing each previous international agreement reached by the United States. Footnote 78 Researchers may try to supplement TIF with other contract collections to establish a more complete list of agreements. However, this is neither desirable nor feasible for several reasons.

Unlike previous studies, this article takes a more direct approach to comparing congressional contracts and executive agreements, which do not require equally strong assumptions. At the heart of the study of the differences between the two political instruments is a simple question: if a particular treaty is concluded as a treaty between the United States and a partner country, will it result in a different outcome than the agreement reached as an agreement between Congress and the executive branch? If the answer is yes, it indicates that the treaty is qualitatively different from the agreement between Congress and the executive branch. If the answer is no, the content of treaties and agreements between Congress and the executive branch of Congress is similar, and their use could be motivated solely by circumstances that are not relevant to the content of the agreement. It is therefore instructive to postpone empirical attention and to ascertain whether the application of the contract is related to a different outcome of the executive agreement of Congress. While language implies that Congress approves the globe agreement, it is difficult to read an explicit authorization in the statute. In addition, the reproduced part of the act is the only time globe is mentioned and contains a total of 97 words. However, the entire legislation is more than 10,000 words long and was passed by a single roll-call vote in the House of Representatives and the Senate. Footnote 111 Even if it were read as an ex-post authorization from GLOBE, the authorisation text would represent less than 1% of the total text of the law. Outside of trade, provisions like this, in which ex-post-congress executive agreements are supposed to be approved as a small part of a broader legislative package, are the rule, not the exception.

Footnote 112 The result is an authorisation procedure that is remarkably different from the contract consultation and approval procedure. The latter focuses the total and indisputable attention of the Senate on the adoption of the agreement itself and does not directly link its success to the future of other political transpositions. Therefore, it is not certain that ex-post-congress executive agreements could consistently offer the same benefits as those granted by the treaty. As has already been said, empirical analyses can only provide an informative answer to this question when the ex-post executive agreement is observed more frequently and in a wider range of topics. The table shows the prevalence of contracts and executive agreements for certain thematic areas. Statistics on all topics are included in the online appendix. Contrary to the assumptions raised in the previous subsection, several reports indicate that the commitments made in the form of a contract differ qualitatively from those made between Congress and the executive branch. These reports are based on the idea that the treaty, while politically more costly, can also bring some benefits to the parties, which may ultimately lead to a firmer commitment.

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