32 Borchard, Edwin, The Proposed Constitutional Amendment on Treaty-Making, 39 AJIL 537, 538 (1945)CrossRefGoogle Scholar (describes the rise of the Executive Convention as “interference with conventional power”); Berger, Raoul, Le monopole présidentielle des relations étrangères, 71 Mich. L. Rev. 1, 48 (1972)CrossRefGoogle Scholar (critique of the idea of “adaptation by use” as a basis for interpreting the Constitution); Tribe, Laurence H., Taking Text and Structure Serious: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1249 (1995)CrossRefGoogle Scholar (criticizes Ackerman`s expansion of methods of interpretation; although he acknowledges that the Constitution is silent on many issues of separation of powers in foreign policy, Tribe argues that the contractual clause is clear by making advice and consent the exclusive method for contract approval). 67 Treaties in force: list of treaties and other international agreements of the United States (1929-2017) [`the TIF`). The dataset is limited to agreements concluded since 1982, as its construction requires cross-references to the Kavass Guide to Existing Treaties, first published in 1982.
For the first time since 1957, the State Department did not publish a separate edition of the TIF for 2013 and 2014, making it impossible to determine the exact year in which the agreements expired during that two-year period. The analysis therefore ends in 2012. 83 See McLaughlin, C.H., The Scope of the Treaty Power in the United States II, 43 min. L. Rev. 651, 721 (1958) Google Scholar (calculated that 5.9% of agreements were concluded between 1883 and 1957 as single executive agreements or “presidential agreements”); see also International Agreements: Analysis of Executive Regulations and Practices, p. 22, Senate Committee on Foreign Relations, 95th Congress, 1st Sess. (1977) (where it is calculated that 5.5% of the 1946-1972 agreements were based exclusively on the executive). 97 See Panayiota, Alexandropoulos, Applicability of Executive-Congress Agreements inStead of a Treaty for the Purposes of Extradition under Article II: Elizaphan Ntakirutimana v. Janet Reno, 45 Vill.
L. Rev. 107, 113–14 (2000)Google Scholar (arguing that the Supreme Court in Valentine had clearly established the legality of extradition under an executive agreement); see also Klarevas, Louis, The Surrender of Alleged War Criminals to International Tribunals: Examination the Constitutionality of Extradition via Congressional-Executive Agreement, 8 UCLA J. Int`l L. & Für. Aff. 77, 107 (2003) Google Scholar (Provide additional cases in support of Valentine`s interpretation of extradition on the basis of an executive agreement). The second opportunity is that presidents can unilaterally withdraw from treaties, while withdrawal from congressional and executive agreements requires congressional participation. Footnote 41 This would allow presidents to easily break their promise, even after a treaty has gone through the process of deliberation and approval. Table 4 presents the results of the Cox proportional risk model. Model (1) contains only the contract indicator. It can be seen as a simple descriptive comparison of the sustainability of contracts and all management agreements, without taking into account other characteristics.
Model (2) contains fixed effects for the president and the field. They indicate the average difference in sustainability, since two agreements were concluded by the same president and in the same area. Model (3) also contains fixed effects by country. Footnote 99 If the choice between executive agreements and treaties was the result of historical dependence of no substantial relevance in the present, then there should be no difference in the sustainability of treaties and executive agreements if all these characteristics are held constant. The coefficient in the contract should therefore be low and statistically insignificant. Model (4) additional controls on the presidential party`s share of seats in the Senate, as well as for a divided government, to examine whether differences between treaties and executive agreements are explained by a president`s intention to bypass the Senate. If this is the main motivation for choosing the contract, then the inclusion of one of these covariates should make the coefficient of the contract small and insignificant. Model (5) does not control the proportion of seats, but the results of the LPPC, which are arguably a better approximation of the cost of Senate enforcement. .
- On April 19, 2022