Executive Agreements Differ From Treaties In That They Are
The results of the analysis are presented in this section. First of all, I consider the differences between treaties and executive agreements in general, without distinguishing between different types of executive agreements. I then examine whether the results change if we continue to distinguish between executive agreements, ex ante agreements between congressional and executive agreements, and ex post agreements between Congress and the executive. By integrating several robust controls and effects, the analysis attempts to address most plausible sources of omitted variable distortions, motivated by different theories, such as the selective attention of senators or specialized conventions. The fact that the Treaty coefficients are not very different, even after the inclusion of these controls, is a reassuring indication that the results may not simply be the result of unnoticed selection effects. 41 i. c. 1336 (“[I]n the President will probably find it more difficult, on the whole, to withdraw unilaterally from a congress-executive agreement than from an Article II treaty.”). Some scientists doubt the claim that presidents can more easily withdraw from treaties than from agreements between Congress and the executive. As Koremenos and Galbraith point out, many agreements in the UN Treaty Collection have withdrawal provisions that would allow a president to legally leave an agreement, regardless of the form in which it was concluded. See Barbara Koremenos, The Continent of International Law: Explaining Agreement Design 124 (2016) (70% of agreements have opt-out provisions based on a random sample of contracts in the UN Treaty Collection); Galbraith, note 26 above, to 1720 (arguing that the withdrawal provisions give successors to the current president a simple way to legally withdraw from a contract). For doctrinal challenges to the allegation that contracts can be withdrawn more easily, see Bradley, see note 36 above.
The second option is the executive agreement. Executive agreements can be divided into different types. Agreements between Congress and the executive require a simple majority in both the House of Representatives and the Senate.Footnote 21 They are used in areas where the executive does not have exclusive jurisdiction. Congressional approval can be obtained after the agreement has been negotiated, as was the case for NAFTA (North American Free Trade Agreement) at the bottom of page 22 or the Uruguay Round agreements of the General Agreement on Tariffs and Trade. Footnote 23 Footnote 23 It is much more common, however, for Congress to give broad authorization to the ex ante president in a statute. Margolis, who analyzes all the international agreements concluded from 1943 to 1977 and finds that the distribution of seats in the Senate largely prevailed over the choice between treaties and executive agreements of Congress. Fn. 48 The results support the circumvention hypothesis that the choice between treaties and executive agreements is exclusively a function of national legislative support. .