Executive Agreements Plus

48 Pages Posted: 30 Jun 2016 Last revised: 16 Jul 2016

See all articles by Daniel Bodansky

Daniel Bodansky

Arizona State University Sandra Day O'Connor College of Law

Peter J. Spiro

Temple University - James E. Beasley School of Law

Date Written: May 1, 2016

Abstract

Can President Obama join the Paris climate change agreement without seeking the approval of the Senate or Congress? According to the conventional, tripartite paradigm for analyzing the president’s treaty-making power, this question is conceptualized as an issue of the president’s independent constitutional power. If the Paris Agreement is not approved by the Senate as an Article II treaty or by Congress as a congressional-executive agreement, then it must be a sole executive agreement.

This article challenges the conventional, tripartite paradigm as both conceptually inadequate and historically inaccurate, and proposes a fourth category of international agreements, which it christens “executive agreements plus” (EA-plus). EA-plus are neither congressional-executive agreements nor sole executive agreements; they fall somewhere in between. They are supported, but not specifically authorized, by congressional action. The article argues that EA-plus have a long, heretofore undiscovered pedigree. It explores the Obama Administration deployment of the concept, applies it to the Paris Agreement, and argues that, if President Obama accepts the Paris Agreement, it will be as an EA-plus rather than as a sole executive agreement.

Keywords: Treaties, Executive Agreements, Paris Agreement, Climate Change, Foreign Relations Law, Separation of Powers

JEL Classification: K30, K33

Suggested Citation

Bodansky, Daniel and Spiro, Peter J., Executive Agreements Plus (May 1, 2016). Vanderbilt Journal of Transnational Law, Forthcoming; Temple University Legal Studies Research Paper No. 2016-36. Available at SSRN: https://ssrn.com/abstract=2802365

Daniel Bodansky (Contact Author)

Arizona State University Sandra Day O'Connor College of Law ( email )

111 E Taylor St
Phoenix, AZ 85004
United States

Peter J. Spiro

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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