THE U.S. CONSTITUTION AND INTERNATIONAL AGREEMENTS∶MAKING SENSE OF TREATIES AND CONGRESSIONAL EXECUTIVE AGREEMENTS

Treaties and congressional executive agreements are two methods by which the United States enters into binding international agreements. Each instrument has been used since the earliest days of the Constitution, but there is confusion concerning the substantive appropriateness of each form. This confusion is compounded by the fact that the text of the U.S. Constitution is silent regarding the substantive differences between the two instruments. Another consideration is the fact that there is debate concerning a modern movement advocating the interchangeability of congressional executive agreements for treaties. Despite the confusion, textual silence, and scholarly debate, the historical record indicates a consistency in use. This article shows that the choice of instrument (treaty or congressional executive agreement) is fairly predictable based on the subject matter or topic of the proposed agreement. This predictability results from consistent historical practice and modern preferences. In examining each form, this article reviews the relevant procedures and history behind each instrument. Because there is no clear rule concerning the proper subject matter for each method, this article also looks at the particular patterns of usage and explore the defining moments that have shaped the modern usage of each form. By understanding the various facets of treaties and congressional executive agreements is an essential element in making sense of the various instruments used by the United States to make international agreements.