Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements

Abstract

for their comments. Michael Zara provided superb research assistance. This Article benefited from a workshop at the University of Chicago Law School and a panel of the Society for Historians of American Foreign Relations. The John M. Olin Foundation, the Committee on Research of the University of California at Berkeley, and the Boalt Hall Fund generously provided financial support for this research.

The President and International Commitments: Treaties as Signaling Devices

“…A substantial legal literature has emerged asking whether, in fact, the president is unconstrained in his choice. While some have argued, on legal or normative grounds, that the president should limit reliance on executive agreements so that Congress is not bypassed (Tribe 1995), in practice the “doctrine of full interchangeability” has prevailed (Ackerman and Golove 1995; Yoo 2001, 759) 5 . This doctrine means that all international agreements have the same standing in domestic courts, regardless of the ratification procedure.…”

Using Framework Statutes to Facilitate U.S. Treaty Making

“…The most extensive analysis was authored by John Yoo and published in 2001. 46 Yoo argues that a congressional-executive agreement cannot be used for matters that fall outside the congressional powers identified in Article I, section 8 of the U.S. Constitution or for matters that fall under the concurrent and potentially conflicting powers of the president and Congress. 47 Applying his theory, Yoo finds that congressionalexecutive agreements ought to be used for international trade, finance, and intellectual property, but cannot be used for human rights, extradition, political-military issues, and arms control.…”

Separating Powers: International Law before National Courts

“…Hathaway 2008, pp. 1270-1271, Yoo 2001 Hathaway suggests that treaties have rarely exceeded Congress' Article I jurisdiction and thus taking issue withYoo 2001, p. 800ff, and joining the constitutional debate on interchangeability with, inter alia,Yoo 2001, Tribe 1995 Ackerman and Golove 1995, and Spiro 2001. 221 Following Hathaway 2008, Yoo 2001, and Golove and Ackerman 1995 Made in the USAFdtn v US 242 F 3rd 1300.223 See also Japan Whaling Assoc v American CetaceanSoc 478 US 221 (1986),Goldwater v Carter 444 US 996 (1979) (per Rehnquist CJ).…”