The President's Rational Choice of a Treaty's Pre-Ratification Pathway: Article Ii, Congressional-Executive Agreement, or Executive Agreement?

Abstract

A President who chooses to seek legislative approval of a treaty risks delay, textual modification, and even outright defeat. Neither the Constitution nor Congress nor the courts constrains this choice. The President nonetheless often seeks legislative approval before ratifying a treaty, whether through the constitutionally specified process of obtaining Senate advice-and-consent or the extra-constitutional Congressional-Executive agreement. Why? This Article argues that the President risks the hazards of seeking legislative approval in order to send to other nations a costly, credible signal of US commitment to the obligations of the treaty. First, the Article examines in general terms the choice to seek legislative approval at all and, if sought, which path of legislative approval to employ. Second, the Article argues that the signaling theory explains why Presidents systematically allocate certain issue areas (e.g., trade liberalization or arms control) to certain pre-ratification pathways (e.g., the Congressional-Executive agreement or the Article II pathway, respectively).