ACS is pleased to distribute an Issue Brief by Oona Hathaway, Professor of Law, University of California, Berkeley School of Law. In this Issue Brief, entitled, “The Case for Replacing Article II Treaties With Ex Post Congressional-Executive Agreements,” Professor Hathaway argues that nearly every international agreement can and should be concluded through a congressional-executive agreement instead of under the Treaty Clause in Article II of the Constitution. She explains that the process for making binding international agreements in the United States today proceeds along two separate, parallel tracks. The Treaty Clause route, which is better known and is principally used to conclude agreements on human rights, taxation, environment, arms control, and extradition, requires a two-thirds vote in the Senate and bypasses the House of Representatives. An increasingly common alternative, the congressional-executive agreement, is often used for free trade agreements and is accomplished through the enactment of ordinary legislation passed by both houses of Congress and signed into law by the President.

Professor Hathaway lays out what she sees as the clear benefits of ex post congressional-executive agreements (that is, agreements approved by both houses of Congress after they are negotiated by the President) over Article II treaties. International law made through congressional-executive agreements, she asserts, enjoys greater legitimacy and stronger democratic credentials, because these agreements do not exclude the House (the more representative and responsive house of Congress) or require supermajority approval in the Senate. In addition, the author contends, such agreements generally create more reliable commitments because they are more likely to be enforced and they can be more difficult for a single branch of government to unilaterally undo. Professor Hathaway argues that the advantages of congressional-executive agreements are being forfeited in areas dominated by the Treaty Clause, most notably in the area of human rights, and she concludes that it is time for the President and Congress to bring to a close the already waning influence of the Treaty Clause. For those who favor international law, she contends, this proposal “holds out the hope of allowing the United States to engage more effectively and efficiently in the international sphere in all areas of law.”