Academic journal article Presidential Studies Quarterly

The Changing Nature of Presidential Policy Making on International Agreements

Academic journal article Presidential Studies Quarterly

The Changing Nature of Presidential Policy Making on International Agreements

Article excerpt

As chief diplomats, U.S. presidents hold a great reservoir of power, both formal and informal. One of the most important formal diplomatic powers of the presidency is the constitutional authority to negotiate treaties. However, presidents are constrained considerably when using the treaty power, for treaties require supermajority advice and consent in the Senate. Perhaps as a result, modern presidents since Franklin Roosevelt have more regularly used executive agreements (EAs), rather than treaties, to complete important diplomatic action. Scholars have noted a great increase in the use of EAs vis-a-vis treaties, citing the conventional "evasion hypothesis," which states that presidents skirt the Senate because of difficult political hurdles which are exacerbated by partisan politics (Lindsay 1994; Margolis 1986).

Despite the fact that most treaties are given advice and consent in the Senate eventually, the conventional wisdom posits that modern presidents use the EA as a means to enter into binding international agreements while avoiding the political uncertainty of the treaty process. The Supreme Court has maintained that EAs are as binding in terms of American law as treaties (United States v. Pink, 315 U.S. 203, 1942), and most do not require the approval of Congress. (1) One explanation left unexplored by the literature is that EAs provide a much more efficient process for the president. Agreements go into effect sooner, offer the president the opportunity for unilateral action in some cases (Howell 2003), and if law demands Congress has a say, may only require majority approval in both chambers rather than supermajority approval in the Senate. (2) The alternative explanation, then, suggests that the increased use of EAs is an evolutionary response by the presidency and the Senate to greater diplomatic demands of the modern era.

In this article, we ask the following question: why are EAs, rather than treaties (which require a two-thirds vote of support by the U.S. Senate), increasingly used as a means to formalize U.S. relations with other countries? We examine this question from two perspectives. In the first, we assume presidents behave strategically when using EAs, a view held by the lion's share of scholars in the area (Edwards and Wayne 1999; Fisher 1991; Lindsay 1994; Margolis 1986). Hence, the use of the EA is driven by a presidential desire to circumvent the Senate when governing circumstances are difficult. Second, and alternatively, we envision organizational efficiency at the heart of the use of EAs. In general, conducting foreign affairs has become increasingly complex in the modern era, necessitating the reliance of the executive branch on an efficient mechanism to "get things done" in a busier international system. (3)

After reviewing the state of the literature on international agreements, we discuss, and develop hypotheses for, these two alternative explanations of this important institutional change: political strategy and institutional efficiency. We then discuss our data collection procedures, followed by a description of our dependent and independent variables. We next present our findings and conclude with a discussion of the broader implications of our results for scholarship on the presidency and Congress in foreign policy.

Literature Review

Studying the patterns of presidential behavior in completing international agreements over time may teach us a great deal about the institution's response to changing domestic political environments as well as changes in the international context. Despite the constitutional significance of international agreements, very little systematic study has focused on the politics of the treaty ratification process or the process of alternatively forging EAs. We do know that the use of EAs took off during the Franklin Roosevelt administration. Roosevelt completed several EAs with Allied powers prior to U.S. entry into World War II, avoiding the treaty process altogether. …

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