The Improvised Implementation of Executive Agreements
64 Pages Posted: 5 May 2021 Last revised: 16 Aug 2022
Date Written: August 2, 2021
Implementation is at the core of lawmaking in our divided government. A rich literature covers the waterfront with respect to agencies’ implementation of legislative mandates, and another equally robust line of scholarship considers Congress’s implementation of treaties. Missing from those discussions, however, is another area of implementation central to U.S. foreign relations: the implementation of transnational regulatory agreements.
This Article examines how federal agencies have harnessed far-reaching discretion from Congress on whether and how to implement thousands of international agreements. Agencies regularly implement agreements by relying on a self-developed menu of options much like they do in the domestic regulatory context -- only without the checks and balances that those processes provide. What emerges from this analysis of the operation of agreements all the way down is a set of extemporized means through which the executive maintains control of these agreements and their regulation of the rights of private actors without legislative intervention or administrative law constraints. These revelations stand in contrast with conventional understandings of implementation as well as to prior accounts of how “international law [is] part of our law.”
Taken together, the Article makes four primary contributions. First, it documents an initial profile of the executive’s agreement implementation mechanisms and draws attention to the legal questions that they raise. Second, it provides a normative assessment of how international commitments get pushed through the grinder of our regulatory state, highlighting both the potential enhancement of rule of law values as well as the latent institutional troubles. Third, it develops a policy recommendation that seeks to maximize the benefits of executive autonomy in agreement implementation while also curbing some of the harms of agencies’ improvisation. Finally, it analyzes the lessons of this revealed practice for both administrative law and foreign relations law and their foundational principles.
Keywords: executive agreements, trade, implementation legislation, delegation, separation of powers, foreign relations, international law
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