The Implementation Game: Foreign Agreement Commitments in Domestic Law
Posted: 5 May 2021
Date Written: May 2, 2021
Scholars and courts often approach questions of international law’s implementation into U.S. law from an ex ante perspective, confirming whether the lawmaker in question had the authority to enter into an international commitment and verifying the integrity of the procedural steps taken. We have far less information and many fewer common understandings about the other side of international lawmaking – the ex post integration into U.S. law. The black box of implementation is most salient when it comes to executive agreements – agreements entered into by the executive branch acting under a congressional delegation of authority or other executive authority but that receive no congressional review prior to their entry into force. These agreements become part of U.S. law in diverse and previously unstudied ways. This Article seeks to fill that gap, using foreign commercial obligations as a case study. It argues that executive implementation may be more ad hoc than is commonly recognized. The Article elaborates the domestic and international implications of this realization for how international law becomes part of our law.
Keywords: executive agreements, trade, implementation legislation, delegation, separation of powers, foreign relations, international law
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