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The Evolution of the Presidency: Treaty Making Powers
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Welcome back to our Learning Journey on the evolution of the Presidency over time. Today, we’ll be guiding you through how the president’s role in treaty-making and withdrawal has changed over the past two and a half centuries.
Executive Agreements
Treaty-making power was originally meant to be shared between the Senate and the president. This is rarely the case in practice. Presidents now routinely negotiate treaties without consulting the Senate until they are ready to seek ratification. Presidents also negotiate “executive agreements” with other national governments that are the functional equivalent of international treaties. Famous examples of executive agreements include the annexation of Texas in 1845 and the World War II Hull-Lothian agreement, which provided the UK with naval destroyers in exchange for U.S. rights to use UK naval sites for 99 years.
The use of executive agreements increased significantly during World War II and the Cold War. Before 1940, the Senate ratified 800 treaties, and presidents made 1,200 executive agreements. Between 1940 and 1989, presidents signed nearly 800 treaties but negotiated more than 13,000 executive agreements.
The power to negotiate executive agreements is backed by the U.S. Supreme Court. In United States v. Pink (1942), the Court held that international executive agreements have the same legal status as treaties and do not require Senate approval. In Reid v. Covert (1957), the Court clarified that such agreements could not contradict existing federal law or the Constitution. The Case-Zablocki Act of 1972 requires the president to inform the Senate within 60 days of any executive agreement being made and empowers Congress to vote to cancel an executive agreement or to refuse to fund its implementation.
Sole executive agreements can be easily reversed or modified by new presidents. Because sole executive agreements are made only on the authority of the incumbent president, they do not necessarily bind his successors. The Joint Comprehensive Plan of Action, an executive agreement with Iran and several European partners, is a recent example. It was negotiated by one president and nullified by another.
There are three kinds of executive agreements:
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Congressional-executive agreements need only a majority vote from both houses rather than a two-thirds Senate majority required for international treaties. The North American Free Trade Agreement (NAFTA) and the General Agreement on Tariffs and Trade are notable examples of congressional-executive agreements.
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Treaties previously ratified by the Senate sometimes empower presidents to negotiate various agreements.
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The Supreme Court has recognized the power of the president to conclude sole executive agreements in the context of settling claims with foreign nations. If the president enters into an executive agreement addressing an area with clear, exclusive constitutional authority, such as an agreement to recognize a particular foreign government for diplomatic purposes, then the agreement may be legally permissible regardless of congressional disagreement. One of the more famous examples of a sole executive agreement is the 1940 Hull-Lothian Agreement.
Read On:
Pop Quiz!
Which Amendment to the Constitution set a term limit of two terms for the president?
Unilateral Treaty Withdrawal
In addition, presidents now have the power to withdraw from many treaties unilaterally. For example, in 1978, President Carter withdrew the U.S. from its 1954 Mutual Defense Treaty with Taiwan with the goal of improving diplomatic relations with the People’s Republic of China. When Senator Barry Goldwater complained to the Supreme Court, the court declined to rule, asserting the disagreement was a political matter. More recently, in the period 2017-2019, President Trump withdrew the U.S. from the Trans-Pacific Partnership, the Paris Climate Accord, and the Intermediate-Range Nuclear Forces Treaty with the Soviet Union (now Russia).
Such withdrawals occurred because the Constitution and the Supreme Court are silent on the power to withdraw from treaties. In 1789, Congress authorized the termination of four treaties with France. In the 1800s, termination was seen as a joint power, consistent with treaty-making itself. By the 1900s, however, presidents increasingly terminated treaties on their own. The practice has not, thus far, attracted much resistance from Congress and is therefore likely to be continued.
What's Next?
Tomorrow, we’ll go over the key pieces of legislation that govern the president’s emergency powers.
Go Deeper:
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