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Articles Presidential Control Over International Law VOLUME 131 MARCH 2018 NUMBER 5 © 2018 by The Harvard Law Review Association ARTICLES PRESIDENTIAL CONTROL OVER INTERNATIONAL LAW Curtis A. Bradley & Jack L. Goldsmith CONTENTS INTRODUCTION .......................................................................................................................... 1203 I. PRESIDENTIAL CONTROL OVER INTERNATIONAL AGREEMENTS ....................... 1206 A. Unilateral Presidential Power to Make Binding International Agreements .......... 1206 1. Forms of International Agreement Making ............................................................ 1207 2. Decline of Treaties ..................................................................................................... 1209 3. Decline of Congressional Participation in Nontreaty Agreements ..................... 1212 4. Rise of “Executive Agreements+” ............................................................................ 1215 5. Nonbinding Political Commitments ........................................................................ 1217 B. Interpreting International Agreements ......................................................................... 1220 C. Terminating International Agreements ......................................................................... 1223 II. PRESIDENTIAL CONTROL OVER OTHER FORMS OF INTERNATIONAL LAW ..... 1226 A. Customary International Law ....................................................................................... 1226 1. CIL Formation ........................................................................................................... 1227 2. CIL Interpretation ..................................................................................................... 1230 3. CIL Avoidance and Violation .................................................................................. 1233 B. Interim Treaty Obligations and Provisional Application .......................................... 1235 1. Interim Obligations ................................................................................................... 1235 2. Provisional Application ............................................................................................ 1238 C. The Executive Branch and International Organizations .......................................... 1241 III. WHY PRESIDENTIAL CONTROL MATTERS ................................................................. 1245 A. Combining and Substituting Unilateral Power .......................................................... 1245 1. Comprehensive Nuclear-Test-Ban Treaty ................................................................ 1245 2. Security Agreement with Iraq .................................................................................. 1247 3. Paris Agreement ......................................................................................................... 1248 B. The Impact of Presidential Control .............................................................................. 1252 1. Consequences for the United States ........................................................................ 1253 2. Consequences for Later Presidents .......................................................................... 1253 3. Consequences for Congress ....................................................................................... 1254 4. Consequences in Courts ............................................................................................ 1255 1201 1202 HARVARD LAW REVIEW [Vol. 131:1201 5. Consequences for States ............................................................................................ 1255 6. Consequences for Individuals and Private Firms ................................................. 1256 IV. LEGAL AUTHORITY ........................................................................................................... 1257 A. The Frequent Need for Congressional Authorization or Approval ........................... 1257 B. International Agreements Without Congressional Authorization ............................. 1259 C. The Limits of Implied Authorization ........................................................................... 1263 1. Congressional-Executive Agreements and Executive Agreements+ .................... 1265 2. Executive Agreements Pursuant to Treaty ............................................................. 1267 3. Consequential Political Commitments .................................................................... 1269 V. I NSTITUTIONAL REFORM ................................................................................................ 1270 A. Are Existing Accountability Constraints Adequate? .................................................. 1271 1. Reasons to Worry About Presidential Accountability Related to International Law ................................................................................................. 1272 2. Additional Factors Relevant to Accountability Assessment ................................ 1279 B. Reform Proposals ............................................................................................................ 1287 1. Transparency............................................................................................................... 1287 2. Other Reform Possibilities ....................................................................................... 1294 CONCLUSION ............................................................................................................................... 1297 PRESIDENTIAL CONTROL OVER INTERNATIONAL LAW Curtis A. Bradley∗ & Jack L. Goldsmith∗∗ Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, Presidents assert the authority to (a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law; (b) make increasingly consequential political commitments for the United States on practically any topic; (c) interpret these obligations and commitments; and (d) terminate or withdraw from these obligations and commitments. While others have examined pieces of this picture, no one has considered the picture as a whole. For this and other reasons, commentators have failed to appreciate the overall extent of presidential unilateralism in this area, as well as the extent to which Presidents are able to shift between different pathways of authority in order to circumvent potential restraints. This trend, moreover, has become more pronounced in recent years. In many ways, the growth of this vast executive control over international law resembles the rise of presidential power in other modern contexts ranging from administrative law to covert action. Unlike in those other contexts, however, there is no systematic regulatory apparatus to guide or review the exercise of presidential control over international law. After presenting a descriptive account of the rise of such control, the Article turns to normative issues about the legality and broader legitimacy of this practice. It concludes that much of the modern practice has a plausible legal foundation but that some recent presidential actions and arguments relating to international agreements are questionable under generally accepted separation of powers principles. It also explains that the broader legitimacy question is difficult to assess because it turns on contested issues about the aims of presidential control, its efficacy in practice, and the costs and benefits of possible accountability mechanisms. After mapping out these and related considerations, the Article argues for one general accountability reform: significantly heightened transparency of executive branch actions and their legal bases. The Article then assesses the costs and benefits of additional accountability reforms that might become appropriate as more information about presidential control comes to light. INTRODUCTION wo of President Barack Obama’s most important foreign policy ac- Tcomplishments were the Paris Agreement on Climate Change, which aims to lower greenhouse gas emissions, and the Iran Nuclear Agreement, which lifted international and domestic sanctions against ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ William Van Alstyne Professor of Law, Duke Law School. ** Henry L. Shattuck Professor of Law, Harvard Law School. For helpful comments and suggestions, we thank Matt Adler, John Bellinger, Sue Biniaz, Gabby Blum, Jamie Boyle, Kathryn Bradley, Ashley Deeks, Tara Grove, Monica Hakimi, Duncan Hollis, Aziz Huq, Maximo Langer, Maggie Lemos, Daryl Levinson, Michael Mattler, Julian Mortenson, Andy Olson, Eric Posner, David Pozen, Michael Ramsey, Daphna Renan, Shalev Roisman, Neil Siegel, Ganesh Sitaraman, Paul Stephan, Matthew Stephenson, Cass Sunstein, Adrian Vermeule, Ed Williamson, Andrew Woods, and participants at faculty workshops at Duke Law School and Harvard Law School and at the annual International Law in Domestic Courts interest group workshop. For excellent research assistance, we thank Brad Barber, Zac Copeland, Cary Glynn, Maxwell Gottschall, Dennis Howe, Lisa Jing, Kevin Keller, Michelle Melton, Shannon Togawa Mercer, Asher Perez, Ken Notter, and Cody Poplin. 1203 1204 HARVARD LAW REVIEW [Vol. 131:1201 Iran in exchange for Iran’s dismantling of its nuclear weapons
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