Season 2, Episode 6 | Executive Agreements vs. Treaties: Skirting the Constitution?

Executive Agreements vs. Treaties: Skirting the Constitution?

What makes a treaty binding? Who holds the power to shape U.S. foreign policy, the President or the Senate?

In this episode, hosts Savannah Eccles Johnston and Matthew Brogdon unpack the constitutional roots and modern challenges of the U.S. treaty-making process. From Washington's awkward Senate visit to Wilson’s League of Nations failure, they trace the battle over presidential diplomacy and legislative oversight.

The conversation moves from 18th-century compromise to 21st-century executive agreements, exploring how the Constitution’s sparse language on treaties has led to decades of political, legal, and procedural improvisation.

If you’ve ever wondered why the Senate approves treaties, how executive agreements avoid that step, or whether a president can unilaterally exit NATO, this episode is for you.

Key Takeaways

• The treaty power is constitutionally assigned to the President with Senate oversight requiring two-thirds Senate approval.
• Historical precedent, including Washington’s early attempt at direct consultation, has shaped today’s treaty process as more formal and less collaborative.
• Executive agreements are not constitutionally equivalent to treaties but have become a common tool for presidents to shape foreign policy without Senate approval.
• Whether a president can unilaterally withdraw from a treaty (like NATO) remains a legally unresolved question with major implications for the separation of powers.
• The rise of executive agreements reflects both practical political realities and blurred constitutional boundaries, raising questions about long-term democratic accountability.
• Courts have largely avoided intervening in treaty termination and executive agreements, often treating them as political questions.
• Despite growing reliance on executive agreements, if a nation wants a lasting and enforceable deal with the U.S., it still needs a treaty.

In This Episode

• (00:00:00) Introduction to treaty power
• (00:00:30) Debate at the Constitutional Convention
• (00:01:04) Hamilton’s push for executive diplomacy
• (00:03:22) Washington’s failed in-person treaty consultation
• (00:05:22) The Jay Treaty and Senate consent precedent
• (00:09:00) Wilson, the League of Nations, and the Senate backlash
• (00:13:35) Mutual defense and declaring war
• (00:20:45) Can a president leave NATO?
• (00:23:49) Carter, Taiwan, and Goldwater v. Carter
• (00:27:48) Executive agreements vs. treaties
• (00:32:00) Senate’s quiet acceptance of executive agreements
• (00:35:08) Recap of constitutional treaty principles

Notable Quotes

[00:03:48] "This is the only time that Washington sort of loses his cool in public as president… he winds up storming out of the Senate chamber." — Matthew Brogdon

[00:07:18] "Washington basically says, 'I tried that. That doesn’t work. All you get to do is say yes or no.'" — Savannah Eccles Johnston

[00:12:42] "The Constitution puts the Senate in the president's sandbox whenever it comes to the treaty power." — Matthew Brogdon

[00:19:35] "So much of America’s interactions with the world are kind of weird because we act as if the president has unilateral authority on foreign affairs—and he doesn’t." — Savannah Eccles Johnston

[00:24:55] "We had a treaty obligation to Taiwan... In order to establish diplomatic relations with China, we had to rescind any recognition of Taiwan." — Matthew Brogdon

[00:31:11] "Any future president can just disregard or ignore [an executive agreement]... It’s a commitment of that particular president." — Matthew Brogdon

Transcript

[00:00:00] Intro: We the people, do ordain and establish this constitution. 

[00:00:10] Savannah Eccles Johnston: Welcome to This Constitution. My name is Savannah Eccles Johnston. 

[00:00:10] Matthew Brogdon: And I'm Matthew Brogdon. 

[00:00:14] Savannah Eccles Johnston: And today we're going to talk about treaties and in particular, why the Senate is involved in treaties. And this was a debate even at the constitutional convention.

[00:00:23] Savannah Eccles Johnston: This wasn't like a foregone conclusion. So. Why? Why involve the treaties or why involve the Senate in the treaty-making process? 

[00:00:30] Matthew Brogdon: Yeah. It's funny that you ask it that way because some people would ask, Why is this an executive power? If treaties are law, why is the president doing it does seem to be the terms of debate at the constitutional convention is can the president do this by himself?

[00:00:44] Matthew Brogdon: Can the Senate do it by itself? There's a proposal for that. Most famously from Charles Pinckney says, no, you know, the Senate should do this. The Senate should negotiate treaties and make them. It will be the sort of, uh, diplomatic branch of the legislature. And then the position that the framers go with is to have the president and the terms of the Constitution.

[00:01:04] Matthew Brogdon: The president, by and with the advice and consent of the Senate, shall make treaties. Provided two-thirds of the Senate is present concur. So that's the rule we land on. And it seems to put the president in the driver's seat in terms of diplomacy and negotiating with foreign countries. 

[00:01:21] Savannah Eccles Johnston: Right? But we still don't really know what this looks like in practice.

[00:01:24] Savannah Eccles Johnston: What's interesting is this is kind of a Hamiltonian wind, right? This is Hamilton saying it should be on the president's side. It's hard to imagine the Senate actually taking charge in treaties today. That seems like it would be a disaster. And nothing would ever happen. 

[00:01:37] Matthew Brogdon: The baseline is, of course, Royal Authority under the British Constitution, right, which the monarch was able to make treaties with no involvement.

[00:01:47] Matthew Brogdon: Now, if the treaties involved, raising revenue, levying taxes, all that sort of thing, then Parliament had to get involved If it involves some special parliamentary power, which is still the same thing now, even if the president and the Senate make a treaty, you still can't levy new taxes without. The House passed a bill to do it and right.

[00:02:09] Matthew Brogdon: There's actually a question about whether a treaty could, appropriate funds. Could you make a treaty that spends money and does not need further congressional action? That's a real controversy, which I. We haven't actually 

[00:02:23] Savannah Eccles Johnston: never had to deal with it. Yeah. But this does bring up something interesting, which is Hamilton's role in the convention in pulling us towards a more British style government, just consistently, uh, trying to tie the executive to some of the powers of the monarch.

[00:02:37] Matthew Brogdon: Yeah. I mean, interestingly, there were serious proposals to have the Senate do this alone. There was never a serious proposal to just let the president make treaties with no legislative involvement. So that's really interesting where, where you have, with other powers, there's discussion of sort of unilateral executive power for appointment to offices, for example, which we're going to discuss later the season.

[00:02:59] Matthew Brogdon: There's a real debate about whether the president should just be able to do that by himself without any kind of, uh, confirmation power in the Senate. But with treaties, it seems like the real alternatives are either. Senate alone, or the President with the Senate. 

[00:03:18] Savannah Eccles Johnston: Right? So, but now we've gotta figure out what does that actually mean in practice?

[00:03:22] Savannah Eccles Johnston: What does that mean? Advice and consent of the Senate? And Washington obviously, is the first to have to try this out. So Washington is, negotiating treaties with the Native American tribes. And he says, well, the Constitution says I've got to do it with the advice and consent of the Senate. And so poor Washington actually goes to the Senate to have, like a, an in-person.

[00:03:42] Savannah Eccles Johnston: Discussion about negotiating this treaty and it goes very poorly. 

[00:03:48] Matthew Brogdon: Yeah. I think this is the only time that Washington sort of loses his cool and public as president. Uh, he winds up storming out of the Senate chamber because they're just bickering amongst themselves. He's asking for concrete advice about this diplomatic situation and the Senate can't quit.

[00:04:05] Matthew Brogdon: Just sort of bickering.

[00:04:06] Savannah Eccles Johnston: and they won't even negotiate in front of him. They say, we have to do it in a closed-door session, then we'll come back and talk to you. And he's like, why am I here? 

[00:04:12] Matthew Brogdon: Oh yeah, there's confusion. What's the point… 

[00:04:13] Savannah Eccles Johnston: of this? 

[00:04:14] Matthew Brogdon: That's right, because the Constitution says the vice president shall be the president of the Senate and sort of preside over Senate deliberations.

[00:04:21] Matthew Brogdon: And then a senator can be appointed president pro tem. Uh, when the vice president's not around, there's no provision for the president. Presiding over Congress in any way. So in a way, this was alarming to them because Washington sort of shows up and says, hi, I am here to consult about this treaty negotiation, if I remember right.

[00:04:42] Matthew Brogdon: I mean, the whole episode is a little awkward because the senate's not sure what to do with him. They finally sort of. Seat him at the front of the room and the senators are sort of going, does this mean the president is sort of running Congress now? 

[00:04:56] Savannah Eccles Johnston: You can imagine poor George Washington, the most famous man in the colonies being completely rebuffed by the Senate and just feeling awkward.

[00:05:03] Savannah Eccles Johnston: So we storm out and say, we're not doing that again. At the very most I will send. Documentation seeking telling them what I intend to do and then they can say yes or no to it, which fast forward we get to the Jay Treaty and that's exactly what he does. So the Jay Treaty, its Chief Justice John Jay, which I think is very interesting.

[00:05:22] Savannah Eccles Johnston: You're sending the chief justice of the Supreme Court to negotiate. Can you imagine John Roberts being sent to negotiate with China today? 

[00:05:28] Matthew Brogdon: Yeah. He takes a leave from the Supreme Court. People forget there's a prohibition on members of Congress dual office holding. If you're a member of Congress, you're not allowed to serve in any other office of profit or trust in the United States.

[00:05:42] Matthew Brogdon: Right. But there's no such prohibition on dual office holding for judges. And so judges have actually been, this is the most prominent example, but judges have been employed in sort of temporary assignments serving other roles for the government. 

[00:05:59] Savannah Eccles Johnston: Right. 

[00:05:59] Matthew Brogdon: Um. Congress is provided for judges doing this sort of thing from time to time.

[00:06:04] Matthew Brogdon: But, uh, Washington appoints Jay as the principal, is he officially a commissioner. He's not appointed an ambassador. He's just sent as Washington's emissary to go negotiate. That causes some issues. Some of the Jeffersonians in Congress are unhappy about that. They think, you know, the president and the chief Justice of the United States are sort of, uh, in cahoots to go, you know, uh, bring about federalist foreign policy with, with the British.

[00:06:36] Savannah Eccles Johnston: And in fact, they kind of do. So John Jay negotiates this treaty, and then Washington sends it to the Senate for advice and consent, which at this point he understands as say yes or no. And, uh, the, the, uh, Jeffersonian Republicans get all up in arms and say, wait a second, you never got our advice on how to negotiate the terms of this treaty.

[00:06:57] Savannah Eccles Johnston: We didn't get to see how the sausage was made. We don't, uh, we weren't involved in the process. And he basically says, oh, wait, I tried that. Mm-hmm. That doesn't work. All you get to do is say yes or no. You get to approve or disapprove before the treaty is ratified. Yeah. Using, you know, the mechanisms of the treaty, but, uh, you're not involved in that, that other process and 

[00:07:18] Matthew Brogdon: constitutionally, that's not a wild position.

[00:07:21] Matthew Brogdon: That is. I, I don't think, I don't think Washington is. Is transgressing any kind of constitutional, uh, role for the Senate here? In part because the really interesting thing about treaty power is that the treaty is called a law. In, in article six and the supremacy clause, it says that the constitution laws made in pursuant of the constitution in treaties are the supreme law of the land.

[00:07:45] Matthew Brogdon: So a treaty is a kind of law. Legislatures make laws that would make you think about the treaty power, the power to make a treaty. It is a power of the legislative branch, but the Constitution, really interestingly, does not put the treaty power in Article one with Congress's powers or with the senate's powers, and then give the president a role.

[00:08:07] Matthew Brogdon: That's kind of how the veto works, right? Congress gets to make laws. Then you involve the president in the lawmaking process by giving him a veto if the treaty power was supposed to work that way. That is, it was primarily a power of the legislature in which the president was given some limited role.

[00:08:26] Matthew Brogdon: Then presumably you would find it listed somewhere over there in Article One, but that's not where it is. Instead, it's in Article two listed among the powers of the president. So it's the president's power to make treaties. With the advice and consent of the Senate and listed right in the same paragraph with the appointment power, the president nominates and with the advice and the Senate shall appoint judges, supreme and inferior courts and executive officers and that sort of thing.

[00:08:52] Matthew Brogdon: So that's it constitutionally that really does put the president in the role of initiating. Treaty making, 

[00:09:00] Savannah Eccles Johnston: and in a way, this makes a lot of sense. If you're in kind of a Lockean framework, you're gonna put the federative power in the executive branch. This makes a lot of sense. That power to deal with, with other countries, that's kind of at least half the point of having a president, but you're just allowing Congress to have some kind of check, some kind of say, in this case, the Senate.

[00:09:18] Savannah Eccles Johnston: Okay, so the Jay Treaty is ultimately successful for Washington. He gets his way. He never has to be embarrassed again. In the Senate, and this sets a precedent. This is how treaties are passed from here on out. Presidents send, uh, the treaty and the Senate simply says yes or no. Then we get to, uh, Wilson and the, uh, league of Nations, and we have our first major treaty failure.

[00:09:43] Savannah Eccles Johnston: And it's kind of the Senate biting back against presidential, unilateral presidential authority to set foreign policy. So let's put this in context. It's World War I, it's the great war. We've been dragged into this completely worthless conflict in Europe, and uh, we have got a treaty to end the war. And the Senate says no to the treaty, not because they don't wanna end the war.

[00:10:08] Savannah Eccles Johnston: But because it has, uh, I think it's Article 10 in that treaty, would have brought us into the League of Nations. One of the points of the League of Nations is basically a mutual defense pact. If one country is invaded, everyone is, and the Senate says, uh, no. We are deeply uninterested in ever getting involved in European affairs like that again, or being compelled to, that would violate American sovereignty.

[00:10:33] Savannah Eccles Johnston: And so Wilson faces serious opposition, but Wilson kind of did this to himself. He put himself in a losing position from the start. 

[00:10:40] Matthew Brogdon: Yeah. He's, he is reaping the whirlwind. He had, uh, members of the Senate had wanted to go with him to France to assist in negotiation. 

[00:10:48] Savannah Eccles Johnston: Yeah. And the dominant Republican party, including, yeah, 

[00:10:51] Matthew Brogdon: That's right.

[00:10:51] Matthew Brogdon: And, uh, Wilton decided to go it alone. I mean, I just refused to get involved. Congress in a serious way, partly because it is the political opposition. I think he doesn't want Republicans involved in this. Uh, and they slap his hand whenever he gets back. 

[00:11:06] Savannah Eccles Johnston: Well, and this also is deeply Wilsonian in the sense that Wilson has this idea of the modern presidency that, uh, the president has the sole authority to speak for the United States abroad.

[00:11:17] Savannah Eccles Johnston: He, he never has much respect for. Congress is an independent institution. He's kind of annoyed by the idea that the president could ever be slowed down. So he thinks I can negotiate this completely on my own and kind of gives the middle finger to Henry Cabot Lodge, who's that famous Republican senator and chair of the Senate Foreign Relations Committee.

[00:11:35] Savannah Eccles Johnston: Wrong person. Now, before this, uh, members of the Senate had always been included. Negotiations, but he just says, I can. I can do it alone. And by the way, he kind of annoys everyone in this process, not just in the Senate, but European dignitaries as well, because he just goes on and on. 

[00:11:51] Matthew Brogdon: Yeah. I mean, you know, our allies in Europe look at this as.

[00:11:55] Matthew Brogdon: Don't make promises you can't deliver on Wilton proceeds as though the president has just complete unilateral power, and as though the Senate is simply going to concede or defer to whatever the President wants to do, and there's no good basis for that kind of assumption. It's interesting that when he gets back, uh, he, he tries to make this a sort of popularity contest Oh, yeah, yeah.

[00:12:24] Matthew Brogdon: Of the Senate. Yeah. Uh, you, you mentioned his view of the president as the representative of the people. I mean, and that's right. Wilson thinks rightly in a way, the president is the only person in the government who's actually chosen by the entire country that can make any claim to representing all Americans.

[00:12:42] Savannah Eccles Johnston: Right. 

[00:12:43] Matthew Brogdon: And so he thinks that that should translate into. Sort of institutional power, but that's not how our constitution works, right? Checks and balances means that even when you have primacy in an area, you still have to deal with the people who are in your sandbox, right? So I mean, the Constitution puts the Senate in the president's sandbox whenever it comes to the treaty power, and Wilton thinks the fact that he's a democratically elected representative of the whole country.

[00:13:10] Matthew Brogdon: Should be able to sort of counteract that constitutional structure and, uh, he pays a price for it. It's true that he tours the country trying to sort of, now we would think of this as kind of trying to drum up primary challenges or something right. Against senators who oppose this. Which is disastrous for him.

[00:13:29] Savannah Eccles Johnston: Well, and it's another test for him that the modern president is supposed to be this rhetorical giant who can convince the people that he reflects their views. It turns out he's a much better academic than he is an actual politician. It utterly fails and then he has a stroke. I, at least partly because of the stress after a speech in Pueblo, Colorado.

[00:13:49] Savannah Eccles Johnston: And now you have dual opposition in the Senate. You've got Henry Cabot Lodge, who I think is kind of a funny character. He puts out 14 points that are wrong with the treaty, uh, with the League of Nations. I know he was trolling Wilson. Hard on this, which is pretty funny. That's right. And then you've got these deep isolationists like, uh, a senator from uh, uh, Idaho, who just don't like the world at all.

[00:14:13] Savannah Eccles Johnston: Let's not get involved. And so Wilson is so offended. By this 14 point second version 

[00:14:20] Matthew Brogdon: Yeah. Of the treaty. 'cause Wilson had given a speech Yes. Called the 14 points. Yes. Supporting the, the, the, the League of Nations in the treaty. 

[00:14:29] Savannah Eccles Johnston: Right. And he says there will be no compromise with Senator Lodge. And uh, he instructs Democrats in the Senate not to vote for the revised version of the treaty.

[00:14:38] Savannah Eccles Johnston: So the treaty dies not once, but twice. It gets two votes in the Senate and dies both times. So this is a. This is a pretty epic failure for Wilson, not just as this idea that presidents can negotiate a loan, but for his very theory of the modern presidency. He utterly fails to implement it here. So, uh, lessons are learned.

[00:14:58] Savannah Eccles Johnston: In fact, the very next president, his successor, comes in and has a big negotiation for a series of treaties. His first step is to involve, uh, members of the Senate Foreign Relations Committee. This is the same lesson that is learned by, uh, Truman and FDR when negotiating the entry into the United Nations.

[00:15:16] Savannah Eccles Johnston: Mm-hmm. Which is you need to involve a member of the Senate Foreign Relations Committee. One, because their egos need to be stroked a little bit, and two, because that way they will help it sail through the Senate so they learn. A powerful lesson here, which is you have to involve the Senate, the Constitution requires it, and you will have your hand bitten off if you don't.

[00:15:36] Matthew Brogdon: Yeah. So I have a clarifying question. Now that we've entered the 20th century and we have treaties that involve, uh, mutual defense, pacs, of course, after World War ii, not just the, uh, not just the United Nations, but NATO comes into existence, you know, a, a mutual defense provision that is still immensely important for our foreign policy.

[00:15:58] Matthew Brogdon: So, uh, a question, uh, when a treaty provides for a kind of mutual defense provision like that, you've got the President and two thirds of the Senate committing the country basically to wage war on someone else's behalf if they're attacked in the future, how does that work with Congress's power to declare war later on?

[00:16:22] Matthew Brogdon: Are we just automatically at war? What this happens is a good question. 

[00:16:26] Savannah Eccles Johnston: Well, that was the initial opposition to the League of Nations. That was the big one, is that this is a violation of American sovereignty because it cuts the house out basically. Congress doesn't get a say from here on out if Americans go to war or not.

[00:16:38] Savannah Eccles Johnston: In some, we haven't really tested this. Is it an automatic commitment to war? 

[00:16:43] Matthew Brogdon: I tend to think it's not actually because I, I think that the way that treaty obligations work is they're obligating the nation as a whole. I. To do a thing, but the way that the United States goes about doing a thing that could be going to war as part of a mutual defense agreement, it could be spending money that we've agreed to spend on a proposal to reduce carbon emissions.

[00:17:05] Matthew Brogdon: I, you know, you could imagine all the sort of universe of things that it could be, the treaty obligates the nation as a whole to do that, but I think the procedure we follow to actually bring it about. May require additional action. So if a treaty agrees that we'll tax carbon emissions, well, you can't levy a new tax, raise revenue without involving Congress and specifically the house because no bill for raising revenue can be introduced unless it's introduced first in the house.

[00:17:36] Matthew Brogdon: Right. It has to originate in the House of Representatives. I think there's a question about appropriations. Like if a treaty said you have to spend money. Technically, the Constitution says that, uh, no money will be issued from the treasury, but upon appropriation by law. So there is a question. If a treaty says, we agree, we're gonna pay X amount of money, right for something, or spend money to do something, maybe you could call that self enforcing and the president could write the check out of the treasury.

[00:18:03] Matthew Brogdon: Right? And fulfillment. Because you could say that's an appropriation by law, even though it didn't pass both thousands of Congress. But I think when it comes to declaring war. Entering a war that is not self-defense. That is, we talked about the war power last in season one, and when we talked there, we talked about the fact that you could have a situation where the president wakes up one day and we're at war.

[00:18:23] Matthew Brogdon: Mm-hmm. Somebody invades right. In case of an invasion. We are at war. Congress doesn't have to declare war. The president can just wage war. But I don't think a mutual defense provision would trigger that kind of self-enforcing situation. That is, if Germany was invaded tomorrow, uh, by, by the Russians. By the Russians, yeah.

[00:18:44] Matthew Brogdon: A NATO country, would we be at war with Russia? And I don't, I don't think so, because I think that you would still have to exercise the power to declare war. Now you could argue we have an o, a treaty obligation to declare war and treaty is law. But Congress would still have to follow through and do that in the same way that if a treaty obligated us to levy attack, she'd still have to go get Congress to pass a law levying the tax.

[00:19:10] Matthew Brogdon: So I don't think mutual defense, I. Is a self-enforcing or self-executing treaty provision, 

[00:19:16] Savannah Eccles Johnston: and yet they were deeply concerned that it was otherwise there wouldn't have been the opposition. And I do think this would end up in the courts. So it's say Congress refused to declare war after Russia invaded Germany or Poland, probably more likely can go to the courts, and I think the courts would have to decide, is a treaty binding in terms of the war power?

[00:19:35] Savannah Eccles Johnston: Or does it require the House and the Senate to actually declare war? We've just never tested this before. This was kind of an unforeseen, uh, circumstance. My 

[00:19:44] Matthew Brogdon: fear is given the current law of executive power, uh, regarding the commander in chief power, is that most people would conclude, sure, the president can go ahead and wage war as part of this treaty obligation.

[00:19:57] Matthew Brogdon: I think that's basically wrong. 

[00:19:59] Savannah Eccles Johnston: Well, it ignores the reality of the American system, which is why the very idea of mutual defense pacs are weird in the American system. And so much of America's interactions with the world are kind of weird because we act as if the president has unilateral authority on foreign affairs and he doesn't.

[00:20:14] Matthew Brogdon: You know what? I don't know, and what I wish I had looked up before we started this conversation is how these mutual defense provisions are precisely phrased. Are they phrased as. If the other party is invaded or, uh, you know, what have you, that the United States is obligated to. Come to their defense because that would suggest we just have an obligation to do it, and then we'd have to follow the process to do it.

[00:20:39] Matthew Brogdon: Or is it in self-executing language? The United States shall come to their defense. 

[00:20:45] Savannah Eccles Johnston: I don't know. Don't know what Article five says for nato. 

[00:20:49] Matthew Brogdon: That's, that's our homework. We're gonna have to go look at it. 

[00:20:50] Savannah Eccles Johnston: We'll have to go read it. Actually, okay. Actual wording. But this brings us to the flip side of this, actually.

[00:20:57] Savannah Eccles Johnston: Could a president unilaterally terminate? A treaty such as the North Atlantic uh, treaty organization, could they leave NATO by themselves? And this is a very interesting question because we know the president needs Senate approval to join fine. Just like the president needs Senate approval for, uh, confirmations of his nominations, fine.

[00:21:19] Savannah Eccles Johnston: But a president can fire without Senate approval. So can a president also terminate a treaty without Senate approval? 

[00:21:26] Matthew Brogdon: If we are applying the rule of construction, we apply to appointments, then yes, the president can, can walk away usually. I think there's some limitations on that. One of those would be if Congress passed laws.

[00:21:43] Matthew Brogdon: Were enacted into law enforcing the treaty while the president might withdraw from the treaty itself. I don't think that does anything to displace any laws that Congress has passed that have enforced the treaty. 

[00:21:58] Savannah Eccles Johnston: Well, let's think about it like this. Congress has passed a law in the past couple of years, uh, preventing a president from unilaterally exiting, uh, nato.

[00:22:06] Savannah Eccles Johnston: But if it's a constitutional power of the President to do so, he could simply take this law to court and say, this is a violation of, uh, executive branch authorities. Right. 

[00:22:17] Matthew Brogdon: Yeah. I guess it's not the scenario I had in mind though. I take the point that Congress could, in a law, prohibit the president from withdrawing from a treaty.

[00:22:25] Matthew Brogdon: But I had more in mind something like, uh, let's say we had a treaty for protecting migratory birds, which we do. There's a migratory bird treaty. 

[00:22:32] Savannah Eccles Johnston: Oh, great. 

[00:22:33] Matthew Brogdon: Uh, and it requires. The United States to ensure certain limits on the killing of migratory birds that move between Canada, Mexico, and the United States.

[00:22:43] Matthew Brogdon: This was actually a treaty that was litigated in the early 20th century. It was quite controversial, but if I'm not mistaken, Congress has passed laws on the basis of that treaty to enforce it 

[00:22:55] Savannah Eccles Johnston: right to 

[00:22:55] Matthew Brogdon: say. Because we have this treaty obligation to Canada, you shall not kill these migratory birds, but under certain circumstances.

[00:23:03] Matthew Brogdon: I see. So while a president could withdraw from the migratory bird treaty, the law that Congress passed to enforce that treaty and prohibit Americans imposing penalties on Americans for killing certain migratory birds would go nowhere. So the president can get rid of the treaty maybe, but he certainly can't.

[00:23:22] Matthew Brogdon: Rescind a law passed by Congress. So, uh, I think this is, it's technically true. The president could withdraw from a treaty. But most treaties are not just treaties. They're actually a treaty that's then 

[00:23:36] Savannah Eccles Johnston: enforced by law, 

[00:23:38] Matthew Brogdon: enforced by all sorts of laws. 

[00:23:39] Savannah Eccles Johnston: Well, let's, let's look at the precedent on this. So, in the, uh, 19th century, presidents basically exclusively had congressional approval to exit treaties if they were going to do so.

[00:23:49] Savannah Eccles Johnston: It's not until the 20th century that you get this, the beginning of this practice of unilateral withdrawal from a treaty. And the biggest example. Is, uh, Carter leaving a mutual defense agreement with Taiwan 1979 in order to negotiate a new treaty with the People's Republic of China? 

[00:24:06] Matthew Brogdon: Yeah, this was very controversial because they desperately 

[00:24:09] Savannah Eccles Johnston: controversial.

[00:24:10] Matthew Brogdon: Right? We had, it's now official policy. We don't recognize Taiwan as an independent country, right? It sort of has a special status. Uh, but we did before Carter withdrew from this treaty, not only recognize them as an independent country, as formally what Taiwan calls itself as the Republic of China, 

[00:24:31] Savannah Eccles Johnston: right?

[00:24:31] Matthew Brogdon: We recognize them as the Republic of China had a treaty obligation to them, and in order to establish diplomatic relations with the People's Republic of China. We think of it as the country that is mainland China and run by the Chinese Communist Party. In order to enter diplomatic relations with them, we had to.

[00:24:53] Matthew Brogdon: Rescind any recognition of Taiwan. 

[00:24:55] Savannah Eccles Johnston: Right? And this becomes deeply controversial for another very powerful Senator, Senator Goldwater, who just, uh, is kind of playing the role of Henry Cabot Lodge here, but less successful. So Goldwater says, wait a second. If you need Senate approval to enter a treaty, you need it to exit a treaty.

[00:25:10] Savannah Eccles Johnston: You don't get to set us foreign policy by yourself, and that's what you're doing here. By withdrawing from this treaty and recognition from Taiwan, you are setting US foreign policy on a new path. He takes it to the courts in Goldwater versus uh, Carter. And an appeals court says, yeah, you can't, can't do that.

[00:25:27] Savannah Eccles Johnston: And the Supreme Court steps in and says, dismiss the case. We're not giving any preference to either side dismiss the case. It's a political question. Mm-hmm. And just kind of steps away from it. So there's no answer from the court here. And Carter ultimately wins on this political question in that we withdraw from the treaty.

[00:25:46] Matthew Brogdon: Yeah. This was one of those cases where the court issued a flurry of opinions. There are, you know, I don't know, five or six different opinions in the case. Yeah. 

[00:25:54] Savannah Eccles Johnston: Two concurring opinions, but 

[00:25:55] Matthew Brogdon: there's one per cur opinion that says. Like you say, case dismissed. This is not a question the courts can answer.

[00:26:03] Matthew Brogdon: It's not ripe for our decision. 'cause there's not a legal question that a court can answer here. Right? Instead, there's a political question. Then the justices all write separate opinions explaining why they think that's the case. Some of them suggested, well, if things were a little different, we could step in.

[00:26:21] Matthew Brogdon: If Congress passed a formal resolution saying the president can't withdraw, we'd have a cons, a clear constitutional conflict between Congress as a body and the president, and then we could step in. 

[00:26:32] Savannah Eccles Johnston: Right? Which would happen if in the case of a NATO withdrawal, for example, because of that new law passed, 

[00:26:36] Matthew Brogdon: because then you'd have a collision between.

[00:26:39] Savannah Eccles Johnston: The two branches a formal 

[00:26:40] Matthew Brogdon: action by the whole Congress because no individual congressman can speak for Congress, 

[00:26:44] Savannah Eccles Johnston: right? 

[00:26:44] Matthew Brogdon: The president can speak for the executive branch, but there's nobody in Congress who speaks for Congress. Congress is a bicameral body that can only speak when it does something 

[00:26:55] Savannah Eccles Johnston: right?

[00:26:56] Matthew Brogdon: Formally, 

[00:26:57] Savannah Eccles Johnston: as a deliberate one of 535 doesn't tell you anything. But, uh, but this is quite interesting because it basically is a non-answer from the courts. And, uh, if you were to ask a, I think a law professor today on treaties, can presidents unilaterally walk away because of the precedent Carter sent?

[00:27:13] Savannah Eccles Johnston: You get a bunch of, well, well, maybe there's this case, or, or that case, which I take is a legal professor telling me, I don't know. We don't know. It's untested. So we would find this out. In the case of a NATO withdrawal, you would go to the Supreme Court because of that law passed by Congress. But even then, I don't know how it'd come out.

[00:27:29] Matthew Brogdon: Or maybe the court's, right? Maybe it is a political question. Maybe it's the kind of collision between two branches of government over a shared power. Yeah. It's a place where the Constitution gives the Senate and the President a formal role. It doesn't answer all the questions, and maybe there's not a.

[00:27:48] Matthew Brogdon: Legal answer to that question, let the people decide it, right. It might be a matter of separation of power is what we, other instances call departmental, right? Where the de, the different departments each have a claim to power in the area. They duke it out, they each sort of stake out their ground and enter the contest, enter the lists, sort of fight it out.

[00:28:10] Matthew Brogdon: And then there's a political solution, which mainly means who wins the elections. 

[00:28:15] Savannah Eccles Johnston: Yeah. I actually kind of like this answer. Sometimes it's just. Let the people decide who they are going to vote for. Uh, who are they gonna validate in the end, the president or, or congress? 

[00:28:24] Matthew Brogdon: I mean, in many cases, even when we think there's a legal resolution to a question, this is in fact how things get settled.

[00:28:30] Matthew Brogdon: That is sometimes the courts think they can settle these kinds of conflicts between the branches, when in fact they're, they're just, they're, they're attempting to answer the question. If everyone decides to go along and defer to them, then. See we get a legal resolution. If they don't and we keep fighting over it, then we get a political solution eventually.

[00:28:52] Savannah Eccles Johnston: Yeah. This goes back to, uh, my strong feeling that the court should stay out of more things and let things be decided politically. Yay. So more controversy is afoot. And that is on the differences between treaties. And executive agreements. So, uh, executive agreements have become increasingly popular, especially in the 21st century.

[00:29:12] Savannah Eccles Johnston: So some examples, the Iran nuclear deal, the climate, the, uh, Paris Climate Agreement. These are not treaties. The Senate never said yes to Obama on the Iran nuclear deal. They didn't even touch it. Uh, instead it's just an executive agreement. Now the question is, what is the difference between an executive agreement and a treaty?

[00:29:30] Savannah Eccles Johnston: And are executive agreements constitutional? 

[00:29:33] Matthew Brogdon: Yeah. I think the short answer is yes, they're constitutional, but they can't do all the things treaties do. By definition. I don't think they can. I, I think anybody that takes a serious look at this would, would have to say, constitutionally, an executive agreement can't be equivalent to a treaty.

[00:29:51] Matthew Brogdon: Otherwise it would be tantamount to the farmers having just let the president exercise the treaty power alone. So there has to be a constitutional difference. The question is how big it is. I think you can identify a set of executive agreements that are definitely constitutional, and that is when the president is in effect announcing something that is within the discretion of the president and the executive branch as a whole.

[00:30:16] Matthew Brogdon: Shall or shall not be done. Mm-hmm. So the President basically says, my administration will do this or will not do this, and the thing they're committing to do or not do is within the power of the President to do alone. Okay. Fine. That's just the president announcing a future intention sort of announcing their intentions.

[00:30:35] Matthew Brogdon: And in that sense it's internationally, it's just like an executive order internal to the executive branch where the president says to a subordinate, I want you to exercise this discretion that you have. Constitutionally in a certain way, and they sort of announced everybody ahead of time, this is how the executive branch is gonna do its business.

[00:30:54] Matthew Brogdon: So it's just announcing that internationally with respect to other countries the same way the president does with an executive order domestically. I think that's definitely fine. Of course, that also means any future president can just disregard or ignore it, right? This is a commitment of that particular president to do it 

[00:31:11] Savannah Eccles Johnston: right.

[00:31:11] Matthew Brogdon: So that's definitely okay. Anytime we get past that and the president starts committing the United States to do other things that may not be within the president's sole discretion. Now we've got a huge constitutional problem, 

[00:31:24] Savannah Eccles Johnston: potentially, for example, the Paris Climate Agreement, which commits to, uh, the US to certain carbon emissions, et cetera, et cetera.

[00:31:31] Savannah Eccles Johnston: But that would seem to require acts of Congress to fulfill. So is that executive agreement? Constitutional. Now, of course it doesn't really matter because it's gone back and forth. Obama brought us in. Trump took us out. Biden brought us back in. Trump took us out. What one president can do with a pen, the next can undo with a pen.

[00:31:50] Savannah Eccles Johnston: But, uh, the lines are very fuzzy. I. Between treaties and executive agreements, and we've never actually had a, that I know of had a court case on this or any kind of major public conversation. We haven't had a big public debate about it. 

[00:32:03] Matthew Brogdon: No. We've had, uh, the Supreme Court has said in the cases, like I was talking about, that executive agreements do have the force of law.

[00:32:11] Savannah Eccles Johnston: Yes. Yeah, 

[00:32:12] Matthew Brogdon: but that's only when they're announcing the policy of the executive branch, and then the courts can go, no, the, the president warned you this was the way he was going to enforce federal law and do all the things he can do, and that's legally binding. The courts can give a fact to that, but that doesn't answer the question of a climate agreement.

[00:32:30] Savannah Eccles Johnston: Right. When it's fuzzy. That would 

[00:32:31] Matthew Brogdon: normally requires federal law. 

[00:32:33] Savannah Eccles Johnston: Yeah. To 

[00:32:34] Matthew Brogdon: implement or a treaty. That would involve senate, uh, confirmation or Senate ratification. That's, that's a totally unanswered question, I think, 

[00:32:42] Savannah Eccles Johnston: and what's interesting about this is the Senate doesn't seem to be fighting back that much. So for example, if you look at the, uh, Senate website, they have a page dedicated to treaties.

[00:32:52] Savannah Eccles Johnston: The bottom of the page is a full paragraph on executive agreements, and basically it's a. Yeah, they have the force of law. The senate's really busy. This is a really useful way for the president to, uh, handle things without us having to get involved. It's kind of like a, it's kind of a rollover moment for the Senate.

[00:33:08] Savannah Eccles Johnston: It, there's not any language in there about fighting back on what's a, what's a legitimate treaty and what's just an executive agreement. 

[00:33:13] Matthew Brogdon: Well, and we tend to think about what the Senate will accept or what federal courts will do. But the real question with executive agreements is what do other countries think the president can do?

[00:33:23] Savannah Eccles Johnston: No. 

[00:33:23] Matthew Brogdon: If it's the case that these are generally honored. Regarded as binding, and usually the president gets their way, then foreign countries are going to seek to enter into them and accept them as a stable way of making international law, basically, of making agreements. If, if the political system, if the sort of collection of, you know, the courts and Congress and the, the whole output of the American political system is signaling that these are a very unstable way.

[00:33:53] Matthew Brogdon: To make foreign policy. They're not a terribly reliable basis for making agreements. Then I, I think foreign countries will get that message and that signal. I think now the impression is they have some force and effect, at least in some circumstances, but they're not treaties. So I think everybody understands at this point.

[00:34:15] Matthew Brogdon: If you really want a stable agreement with the United States, you need to go get a treaty. Especially if it's going to do something in terms of prohibiting Americans from doing certain things or requiring states or the federal government to do certain things, you probably are going to have to go get a treaty obligation.

[00:34:32] Matthew Brogdon: But executive agreements are an important part of the way the president does business. Um, and so far, are there just announcements of the president's intention to conduct the executive branch in a certain way for the foreseeable future? 

[00:34:45] Savannah Eccles Johnston: Right, and the point is treaties are really, really hard. Two thirds of the Senate requires a good chunk of the other party to agree to something.

[00:34:51] Savannah Eccles Johnston: So if we're 

[00:34:52] Matthew Brogdon: it, it also might be the case. That is because a treaty can't easily be gotten rid of, and it may involve passing federal laws. There may actually be some things that are just temporary agreements or contingent agreements with foreign countries where you may not want something as permanent as a treaty.

[00:35:08] Matthew Brogdon: You may actually want something more. 

[00:35:10] Savannah Eccles Johnston: Short term, potentially flimsy. Right. So to recap on treaties, here's what we know about treaties. We know that the treaty power is found in Article two of the US Constitution, but the Senate is put into, as you say, the uh, president's, uh, sandbox on this issue. We know that the president doesn't have to actively involve the Senate in negotiations, so it's usually smart to involve at least one senator in those negotiations.

[00:35:36] Savannah Eccles Johnston: All the Senate has to do is approve yes or no. By two thirds vote. We also know that potentially presidents can withdraw from treaties unilaterally, though that's untested before the courts. We know there are such things as executive agreements. It's also kind of untested before the courts and, and you know, the Court of American public opinion on, on what's a legitimate, uh, treaty and what's just an executive agreement.

[00:35:58] Savannah Eccles Johnston: So I guess what we're saying is there's a lot we don't know. And much of it has to be solved politically moving forward. Good luck. America.

[00:36:07] Matthew Brogdon: The Constitution is more than parchment under glass at the National Archives. It's a blueprint for American self-government that shapes every part of our civic life from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America's founding document. 

This Constitution will equip you to engage the most pressing political questions of our time. Join us every two weeks as we hash out constitutional questions together. This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah's civic thought and leadership initiative.