U.S. presidents can choose the form of international agreements that they negotiate. Using the Constitution's Article II procedure to gain ratification of a formal treaty is a costly and time-consuming endeavor, so presidents frequently turn to executive agreements that do not require approval by two thirds of the Senate. Given this alternative, why do presidents ever choose the Article II procedure? International agreements can take many different forms. They can be informal understandings, more formal agreements that require domestic approval, treaties that require explicit legislative ratification, or they may create new organizations. The major distinction among these lies in the domestic ratification process. It is worth noting that the same agreement may be subject to different ratification processes in the various states that are parties to it. (1) That is, what the United States considers an executive agreement may be a treaty in other signatory countries.
This article explores a basic distinction, that between executive agreements and treaties. (2) Few explicit rules govern the choice of agreements' form, so the form that any particular agreement takes is the result of strategic considerations, both international and domestic. The form that an international agreement takes is a unilateral presidential prerogative, like the issuance of an executive order. However, as this article will show, in practice presidents are more constrained in exercising this prerogative than they are in purely domestic policy, because they must take into account the signals that their actions send to other governments. This finding is surprising from the usual perspectives that contrast American foreign and domestic policy, in that the conventional wisdom is that presidents are substantially less constrained when it comes to foreign affairs.
Scholars of both international relations (Abbott and Snidal 1998; Lipson 1991) and of American politics (King and Ragsdale 1988; Margolis 1986) have considered why agreements take particular forms. However, the theorizing about this choice has been largely ad hoc, not grounded in any particular theoretical framework or model. Empirical studies have likewise been limited, in particular because the data have been analyzed only at a highly aggregate level. This article addresses both of these issues by introducing a basic signaling model of treaties versus executive agreements, and by analyzing a new data set of nearly five thousand U.S. agreements with other countries.
Foreign affairs is an area where most scholars of American politics see the president as operating with a relatively free hand. Because international relations involve rapid responses to crises or complex negotiations with other countries, these scholars have argued, Congress cannot and does not constrain the president in this realm as in domestic politics. The long saga of the War Powers Act is frequently cited as showing the inability or unwillingness of Congress to effectively control what the president does in international politics. When it comes to the form that international agreements take, and therefore the level of congressional involvement, it is true that the president can make a unilateral decision that is essentially unconstrained by legal or constitutional provisions. However, as this article demonstrates, in fact the president is quite constrained in this choice by considerations of whether agreements will be effectively implemented and the signal that their form sends to other parties to the agreement. While this article concentrates on international agreements, the same dynamics may hold in domestic affairs. When a president chooses to use unilateral devices to impose policies, this choice sends a signal of potential resistance to such policy change, and thus may undermine the policy's credibility.
The first section of the article explains why the choice of agreement form is an interesting question and discusses the existing literature on the use of executive agreements and treaties. …