What Makes Executive Agreements So Attractive

62 For a discussion on the importance and difficulty of measuring compliance with international agreements see Downs, George W., Rocke, David M. Barsoom, Peter N., Is the Good News Compliance Good News About Cooperation?, 50 Int`l Org. 379 (1996). This section presents the results of the analysis. First of all, I consider the differences between contracts and executive agreements in general, without distinguishing between different types of executive agreements. I will check whether the results change if I continue to review the various executive agreements, the ex ante agreements between congresses and the ex post-Congress executive agreements. There are senators who have said that some international agreements (usually arms control) must be concluded in accordance with the treaty clause. But the reason why the treaty clause creates a particular monopoly on such agreements is never entirely clear. It is quite possible that these senators will try to revive the particular role of their institution in foreign affairs, a position undermined by the peripheral situation of the contractual clause.

At the same time, anecdotal evidence also provides alternative explanations for plausibility. Consider, for example, the negotiation process for arms reduction agreements between the United States and Russia. During the SALT II negotiations, the United States proposed an interim agreement between Congress and the Executive to ban new types of ballistic missiles and cruise missiles. However, former Soviet Foreign Minister Andrej Gromyko rejected the proposal because of the allegedly lower status of the agreement between Congress and the executive branch. Footnote 12 Similarly, the United States and Russia agreed during negotiations on the Strategic Offensive Offensive Reduction Treaty (SORT) to reduce their active nuclear warhead arsenals to between 1,700 and 2,200 each. President Putin insisted that the agreement be coded as a formal treaty and gave up considerable bargaining power to convince President Bush, who supports an agreement between Congress and the executive branch. Footnote 13 Outside the context of nuclear disarmament, negotiators also drew attention to the treaty as a desired form of more serious engagement. For example, when former Philippine President Corazon Aquino took office, she announced her intention to replace the then existing agreements on the executive branch of Congress, which govern the status of U.S. military bases in the Philippines, with “full”-fledged treaties. Footnote 14 Courts are also divided, with the judiciary divided among hundreds of federal judges. Even the considerable authority of the Supreme Court is divided into nine judges, which means that five must unite to take action. In addition, the courts are profoundly passive instruments of opposition, as they must wait for third parties to raise a formal case.

Finally, the courts have declared that some issues are “inhuble,” meaning that the courts will not resolve them. For example, issues relating to the constitutional powers of the presidency in matters of war are not within the jurisdiction and jurisdiction of the presidency. As a result, the courts cannot verify every executive spoof.