Oona A. Hathaway

Presidential Power Over International

Lawmaking

How international treaties are made in the United States

Article II treaties

Sole executive agreements

Congressional-executive agreements• Ex ante• Ex post

Article II treaties

Made by the President plus 2/3 of the Senate • Excludes the House of Representatives• Senators representing 8% of the population can defeat a treaty• The 67th Senator in the 109th Congress was twice as

conservative (or liberal) as the 51st,• After the Supreme Court’s decision in Medellin, the treaty may

not be enforceable in federal court!

Today, fewer than 5% of U.S. international agreements are concluded as Article II treaties

• Consider the Law of the Sea Treaty

Sole Executive Agreements

Made by the President using his own constitutional power

• To the extent they really are within the president’s constitutional powers, there’s nothing particularly problematic about such agreements, BUT:• The process is sheltered from view

(agreements are not disclosed under 60 days after they enter into effect)

• The process is therefore subject to abuse

Congressional Executive Agreements (Ex Ante)

Congress grants authority to the President. The President then uses that authority to conclude agreements, without returning to Congress.

• When Congress grants authority, it usually does so with no sunset or time limit.

• Like sole executive agreements, the process is sheltered from public view. As a result, there is little accountability or transparency.

• Around 85% of our international agreements are made through this process.

Congressional Executive Agreements (Ex Post)

Agreements are negotiated by the President, then subject to Congressional approval.• Used for trade agreements, to join the International

Labor Organization, International Monetary Fund, World Bank, Food and Agriculture Organization, UNESCO, the WHO.

• All of Congress (the House included) participates• One stop shopping: treaty and implementing

legislation in one.• More reliable commitments: courts will enforce.

Three Proposals

• Submit more treaties as ex post CEAs

• Enact broad-based “fast-track” legislation

• Administrative Procedure Act for international law• Transparency• Opportunity for public involvement• Makes explicit that some of these agreements are administrative, not legislative.

• What can you do? Keep up the pressure.

Professor Oona A. HathawayYale Law School