Article II Treaties and Signaling Theory

THE RESTATEMENT AND BEYOND: THE PAST, PRESENT, AND FUTURE OF U.S. FOREIGN RELATIONS LAW (Forthcoming 2020)

Duke Law School Public Law & Legal Theory Series No. 2019-49

36 Pages Posted: 5 Aug 2019 Last revised: 24 Sep 2019

Date Written: 2019

Abstract

Some scholars contend that, under modern law and practice, presidents can choose to conclude any international agreement by obtaining either ex ante authorization or ex post approval from a majority of Congress rather than obtaining the supermajority “advice and consent” of the Senate that is specified in Article II of the Constitution. If presidents in fact have this freedom of choice, there appears to be a puzzle: why do they ever choose to use the Article II treaty process, which is more politically difficult than the executive agreement processes? To be sure, the use of the Article II process has been in decline, but the process is still used for some agreements, including in situations in which the process seems to make it more difficult for presidents to obtain approval of agreements that they support. A common answer to this puzzle is based on signaling theory: using the Article II process, it is said, allows the president or the country to signal valuable information to potential treaty partners. This book chapter argues that the signaling explanation is questionable and suggests that domestic legal and political factors better explain the continued (although recently much diminished) use of the Article II process. It also highlights a number of empirical questions relating to this issue that would benefit from further study.

Keywords: treaties, signaling, executive agreements, interchangeability

Suggested Citation

Bradley, Curtis, Article II Treaties and Signaling Theory (2019). THE RESTATEMENT AND BEYOND: THE PAST, PRESENT, AND FUTURE OF U.S. FOREIGN RELATIONS LAW (Forthcoming 2020) ; Duke Law School Public Law & Legal Theory Series No. 2019-49. Available at SSRN: https://ssrn.com/abstract=3429179 or http://dx.doi.org/10.2139/ssrn.3429179

Curtis Bradley (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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