Senate Treatment of Select International Agreements, 2013–2018

Abstract

When I finished reading Julian Nyarko's “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements,” I found my mind wandering through memories of the more than five years I spent working on Capitol Hill as Counsel for the Senate Foreign Relations Committee (SFRC)—a role that often required me to figure out how best to preserve the constitutional prerogatives of Congress in the face of the various types of international agreements the executive branch produced. This essay recounts my impressions of how the Senate handled different agreements in the 2013–2018 timeframe—Article II treaties, the Paris Climate Agreement, and the Iran Nuclear Agreement. Unlike Professor Nyarko's ambitious and impressive work to categorize and statistically analyze the durability of Article II treaties and executive agreements—which I applaud and find useful—this essay is modest in purpose. I contend that how Congress handles different types of agreements is largely a product of specific political dynamics—including political ownership, policy entrepreneurism, and electoral risk—that can be unpredictable. Because of these dynamics, the differences that Nyarko reveals regarding the durability of Article II treaties and executive agreements are unlikely to produce a significant change in official practice.