Exiting Congressional-Executive Agreements

26 Pages Posted: 9 Oct 2017 Last revised: 10 Mar 2018

Curtis Bradley

Duke University School of Law

Date Written: October 25, 2017

Abstract

Some commentators have argued that, even if the President has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the President lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This paper challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this paper contends, there is no compelling reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice, and, thus, for example, either instrument can be used to address matters relating to international commerce and trade. Moreover, while presidents do not have the authority to unilaterally terminate statutes, congressional-executive agreements are not mere statutes; they are, like Article II treaties, binding international instruments that can be concluded by the United States only through presidential action. These agreements also typically contain withdrawal clauses similar to the ones contained in Article II treaties that presidents have long claimed the authority to invoke unilaterally, and Congress has never indicated that it views presidents as having less withdrawal authority for such agreements. Indeed, in its trade legislation, Congress appears to have accepted that presidents may invoke such clauses unilaterally.

Keywords: Treaty Withdrawal, Congressional-Executive Agreements, NAFTA, Trade Agreements

Suggested Citation

Bradley, Curtis, Exiting Congressional-Executive Agreements (October 25, 2017). Duke Law Journal, Forthcoming; Duke Law School Public Law & Legal Theory Series No. 2018-1. Available at SSRN: https://ssrn.com/abstract=3049279 or http://dx.doi.org/10.2139/ssrn.3049279

Curtis Bradley (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
141
rank
186,980
Abstract Views
664
PlumX