Starters Jonathan Milner Starters Jonathan Milner

Does America enter into more treaties or executive agreements?

Critical Analysis

Find answers to the following questions using the visual above, any links below, your big brain, and your knowledge of American government and politics:

  1. The US regularly enters into international legal agreements. International legal agreements ratified by 2/3 of the Senate are treaties. International legal agreements signed by the President without Senate approval are executive agreements. According to the data from the visual above, in the United States between 1789-1839, executive agreements were what percent of all legal agreements made?

  2. According to the data from the visual above, in the United States between 1940-1949, treaties were what percent of all legal agreements made?

  3. Describe one trend in the portion of all agreements that were treaties between 1789 and 1949.

  4. Since the end of World War II, the United States has increasingly entered into international agreements known as "executive agreements." Although they are not submitted to the Senate for advice and consent, they are binding under international law. While presidents have utilized these executive agreements since the 1790s, they became more common in the 20th century due, in part, to the sheer volume of business conducted by the Senate and the difficulty of getting expedient action on formal treaties. In many cases, Congress has passed legislation authorizing executive agreements in areas like foreign aid and trade. Since 1990, only about 6 percent of international agreements have been made through formal treaties submitted to the Senate for advice and consent. Why do you think that is?

  5. The Constitution's framers gave the Senate a share of the treaty-making power in order to give the president the benefit of the Senate's advice and counsel, to check presidential power, and to safeguard the sovereignty of the states by giving each state an equal vote in the treaty-making process. The constitutional requirement that the Senate approve a treaty by a vote of two-thirds of senators present means that treaties must overcome political and partisan divisions to gain approval. Explain whether the Framers made it too difficult to pass treaties.

  6. During the summer of 1787, delegates to the Constitutional Convention debated whether the power of treaty making should reside within the legislative or executive branch. Under the Articles of Confederation, a treaty could be entered into with the consent of nine of the thirteen states, or two-thirds of the total number of states. Some delegates, such as South Carolina's Charles Pinckney, urged that the Senate, in which each state had equal representation, should have the sole power to make treaties. Alexander Hamilton argued that the executive branch should exercise powers related to foreign relations and should therefore have the power to make treaties "with the advice and approbation of the Senate." In the end, Hamilton's argument proved to be the most persuasive. If the Executive had the power to make treaties without the consent of the Senate how would that change American foreign relations?

  7. Explain how political polarization impacts the treaty making process.

  8. Explain whether the US Senate being majority Democratic will increase the use of treaty making instead of executive agreements.

  9. Under U.S. law,

    • treaties are equivalent in status to Federal legislation;

    • a distinction is made between the terms treaty and agreement;

    • the word treaty is reserved for an agreement that is made by and with the Advice and Consent of the Senate (Article II, section 2, clause 2 of the Constitution);

    • agreements not submitted to the Senate are known as executive agreements; and

    • regardless of whether an international agreement is called a convention, agreement, protocol, accord, etc., if it is submitted to the Senate for advice and consent, it is considered a treaty under U.S. law.

    Note that under international law, both types of agreements are considered binding. The difference between a treaty and executive agreement is that a treaty is a formal agreement between two or more sovereign states and executive agreement is a pact between the president and the head of the foreign state or their subordinates. An executive agreement can be easily overturned by a subsequent president, whereas a treaty is harder to overturn. What is the main advantage of an executive agreement?

  10. Consider this outline of the Treaty Making Process:

    • Secretary of State authorizes negotiation.

    • U.S. representatives negotiate.

    • Agree on terms, and upon authorization of Secretary of State, sign treaty.

    • President submits treaty to Senate.

    • Senate Foreign Relations Committee considers treaty and reports to Senate.

    • Senate considers and approves by 2/3 majority. President proclaims entry into force.

    And this outline of the Agreement Making Process

    • Secretary of State authorizes negotiation.

    • U.S. representatives negotiate.

    • Agree on terms, and upon authorization of Secretary of State, sign agreement.

    • Agreement enters into force.

    Explain how the treaty making process illustrates the concept of checks and balances.

    Write and Discuss

Take ten minutes to write about the question at the top of the page and then discuss with your classmates.

Act on your Learning

Create a treaty you think the U.S. should enter into with a foreign nation or nations and share your treaty topic with your classmates.

Get Creative

If treaties were the movie, Star Wars, what would treaties be?

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