The Failed Transparency Regime for Executive Agreements: An Empirical and Normative Analysis

The Constitution specifies only one process for making international agreements. Article II states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The treaty process has long been on a path to obsolescence, however, with fewer and fewer treaties being made in each presidential administration. Nevertheless, the United States has not stopped making international agreements. Even as Article II treaties have come to a near halt, the United States has concluded hundreds of binding international agreements each year. These agreements, known as “executive agreements,” are made by the President without submitting them to the Senate, or to Congress, at all. Congress has responded to the rise of executive agreements by imposing a transparency regime — requiring that all the binding executive agreements be reported to Congress and that important agreements be published for the public to see. Until now, however, there has been no systematic assessment of how well the transparency regime has been working. This Article seeks to fill that gap. Through a Freedom of Information Act lawsuit, we obtained thousands of documents relating to the agreements reported to Congress and the legal authority on which the executive branch has relied for these agreements. Together with a series of interviews with lawyers directly involved in the process, this new information has given us an unprecedented look inside the system of concluding, publicizing, and reporting executive agreements. For the first time, we can describe how the system for making and scrutinizing executive agreements actually works — and when and how it fails to work. The overall picture that emerges is one of dysfunction and nonaccountability. In brief: there is reason to believe that the executive branch’s reporting to Congress has been incomplete; the entire publication and reporting process is opaque to everyone involved, including executive branch officials and congressional staffers; and Congress is failing in its oversight role. The “system” is badly in need of repair if we are going to preserve the integrity and legality of the United States’ primary means of making international commitments.