My earlier post has now gotten Steven involved.

I’ve done some more research into the Executive Agreement and treaty processes. The Senate‘s home page gives quite a bit of information on this issue:

Executive Agreements In addition to treaties, which may not enter into force and become binding on the United States without the advice and consent of the Senate, there are other types of international agreements concluded by the executive branch and not submitted to the Senate. These are classified in the United States as executive agreements, not as treaties, a distinction that has only domestic significance. International law regards each mode of international agreement as binding, whatever its designation under domestic law.

The difficulty in obtaining a two-thirds vote was one of the motivating forces behind the vast increase in executive agreements after World War II. In 1952, for instance, the United States signed 14 treaties and 291 executive agreements. This was a larger number of executive agreements than had been reached during the entire century of 1789 to 1889. Executive agreements continue to grow at a rapid rate. The United States is currently a party to nearly nine hundred treaties and more than five thousand executive agreements.

The growth in executive agreements is also attributable to the sheer volume of business and contacts between the United States and other countries, coupled with the already heavy workload of the Senate. Many international agreements are of relatively minor importance and would needlessly overburden the Senate if they were submitted to it as treaties for advice and consent. Another factor has been the passage of legislation authorizing the executive branch to conclude international agreements in certain fields, such as foreign aid, agriculture, and trade. Treaties have also been approved implicitly authorizing further agreements between the parties. According to a 1984 study by the Senate Committee on Foreign Relations, “88.3 percent of international agreements reached between 1946 and 1972 were based at least partly on statutory authority; 6.2 percent were treaties, and 5.5 percent were based solely on executive authority.”

Washigton Trade Reports, a group with which I’m unfamiliar, has a very long essay on this issue that looks authoritative. Not knowing their bonafides makes me reluctant to endorse it more fully than that. Their summary of the history, however, comports with my impression:

During 1789-1839 the United States reached an average of just 1.7 international agreements per year, of which only 31.0 percent were executive agreements. By 1980-1990 the pace increased to 402.1 agreements per year, 95.8 percent of which were executive agreements. [Calculated from data in Lindsay, op.cit., page 82.] The growth of executive agreements was also facilitated by the Supreme Court̢۪s increasingly expansive view of executive authority and the constitutionality of delegated power.

This essay does a good job of differentiating between true executive agreements, executive-legislative agreements, as well as those pre-approved by Congress versus those submitted after the fact. Those submitted under Fast Track/TPA are technically executive-legislative agreements with prior legislative authorization. The chief advantage of this system, from the Congress’ perspective, is that it forces presidents to work with the legislature throughout the process rather than submitting the completed treaty as a fait accompli; hence the Senate’s willingness to suspend its Constitutional 2/3 approval power.

Griffith Bell has an interesting essay on the subject in which he argues that executive agreements and executive orders are just a natural part of the ambiguity of the Constitution, rather than a real sidestepping of it. He’s probably right on this. As much as I like Strict Construction as an abstract concept, it’s almost impossible to govern a 21st Century superpower while strictly following a 18th Century Constitution.

There is a useful reference guide compiled by the University of California-Berkeley listing all treaties in force. A lot of presidential documents, including links to executive agreements, can be found at this site compiled by a professor The University of North Texas.

Update (15:15) Brett supplies this review of a book by Bruce Ackerman and David Galove.