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Articles the Failed Transparency Regime for Executive Agreements: an Empirical and Normative Analysis

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Articles the Failed Transparency Regime for Executive Agreements: an Empirical and Normative Analysis VOLUME 134 DECEMBER 2020 NUMBER 2 © 2020 by The Harvard Law Review Association ARTICLES THE FAILED TRANSPARENCY REGIME FOR EXECUTIVE AGREEMENTS: AN EMPIRICAL AND NORMATIVE ANALYSIS Oona A. Hathaway, Curtis A. Bradley & Jack L. Goldsmith CONTENTS INTRODUCTION ............................................................................................................................ 632 I. THE LEGAL REGIME FOR EXECUTIVE AGREEMENTS .............................................. 638 A. The Legality of Executive Agreements ............................................................................ 638 1. Sole Executive Agreement Power .............................................................................. 639 2. Implied Congressional Authorization to Make an Agreement ............................... 641 3. International Agreements Consistent with Domestic Law ..................................... 643 4. Authorization in a Prior Treaty or Agreement ........................................................ 644 B. The Transparency Regime for Executive Agreements ................................................... 645 1. Publication Requirements .......................................................................................... 645 2. Reporting Requirements ............................................................................................. 648 3. Periodic Congressional Concerns and Amendments ............................................... 651 4. Other Transparency Requirements ............................................................................ 656 II. DOES THE TRANSPARENCY REGIME WORK? AN EMPIRICAL ASSESSMENT ...... 657 A. Qualitative Evidence: How Executive Agreements Are Made and Reported to Congress ......................................................................................................................... 658 B. Quantitative Evidence: Assessing the Transparency and Legality of Executive Agreements ......................................................................................................................... 665 1. Transparency of Executive Agreements ..................................................................... 667 (a) Publication ............................................................................................................ 668 (b) Reporting ............................................................................................................... 671 2. Legal Bases for Reported Agreements ....................................................................... 677 (a) Cited Authorities.................................................................................................. 677 (i) Citations to the U.S. Constitution ............................................................... 677 (ii) Citations to Authorities Other than the U.S. Constitution ..................... 677 (b) Quality of Cited Authority.................................................................................. 679 (c) Assessing Strength of Legal Authority for Each Agreement ........................... 684 629 630 HARVARD LAW REVIEW [Vol. 134:629 III. PATHOLOGIES AND REFORM ............................................................................................. 691 A. Improving the Collection and Reporting of Agreements .............................................. 693 1. Transparency Issues that Emerge from the Data ..................................................... 694 2. Reform Proposals ......................................................................................................... 697 (a) Internal Organization .......................................................................................... 700 (b) Comprehensive Duty to Publish ........................................................................ 701 (c) Implementing Reforms ......................................................................................... 704 3. Political Commitments ................................................................................................ 708 B. Ensuring Legality .............................................................................................................. 710 1. Legality Issues that Emerge from the Data .............................................................. 710 (a) Executive Agreements+ ....................................................................................... 711 (b) Ex Ante Congressional-Executive Agreements ................................................. 713 2. Reform Proposals ......................................................................................................... 715 C. Reforms that Would Not Require Legislation ............................................................... 718 CONCLUSION ................................................................................................................................. 719 APPENDIX A: METHODOLOGY .................................................................................................. 721 APPENDIX B: CODEBOOK ........................................................................................................... 723 THE FAILED TRANSPARENCY REGIME FOR EXECUTIVE AGREEMENTS: AN EMPIRICAL AND NORMATIVE ANALYSIS† Oona A. Hathaway,* Curtis A. Bradley** & Jack L. Goldsmith*** The Constitution specifies only one process for making international agreements. Article II states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The treaty process has long been on a path to obsolescence, however, with fewer and fewer treaties being made in each presidential administration. Nevertheless, the United States has not stopped making international agreements. Even as Article II treaties have come to a near halt, the United States has concluded hundreds of binding international agreements each year. These agreements, known as “executive agreements,” are made by the President without submitting them to the Senate, or to Congress, at all. Congress has responded to the rise of executive agreements by imposing a transparency regime — requiring that all the binding executive agreements be reported to Congress and that important agreements be published for the public to see. Until now, however, there has been no systematic assessment of how well the transparency regime has been working. This Article seeks to fill that gap. Through a Freedom of Information Act lawsuit, we obtained thousands of documents relating to the agreements reported to Congress and the legal authority on which the executive branch has relied for ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– † The Harvard Law Review has not independently reviewed the data and analyses described herein. * Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School. ** William Van Alstyne Professor, Duke Law School. *** Learned Hand Professor, Harvard Law School. For helpful comments and suggestions, we thank Sue Biniaz, Kathy Bradley, Kathleen Claussen, Ashley Deeks, Kristen Eichensehr, Jean Galbraith, Monica Hakimi, Duncan Hollis, Mark Iozzi, Jamil Jaffer, Michael Mattler, David Pozen, Ryan Scoville, Margaret Taylor, and participants in a faculty workshop at Duke Law School and in the 2019 Duke-Virginia Foreign Relations Law Roundtable. For excellent research assistance, we thank Benjamin Fleshman, Michelle Lou, Eli Nachmany, Sam Rebo, and Abraham Sutton. For assistance with data collection and statutory analysis, we thank Andrea de Sa, Sasha Dudding, Pardis Gheibi, Katrin Marquez, and Danielle Zucker — who worked nearly two years on this project. We also thank Natalie Giotta, Ariq Hatibie, Kelsea Jeon, Christopher Kim, Tobias Kuehne, Julianna Lai, Sam Larkin, Jared LeBrun, Preston Lim, Randi Michel, Nicole Ng, Max Obmascik, John Park, Kate Pundyk, and Tiana Wang for their assistance in generating and quality controlling the data, and Andrea de Sa and Ayoub Ouederni for their outstanding assistance with analyzing the data. We thank the many government lawyers past and present who provided us with insights into the process for making executive agree- ments. We are grateful to Michelle Pearse, of the Harvard Law School Library, for assistance with creating the online repository of the data in this Article and to Evelyn Ma, Lucie Olejnikova, and the entire team at the Yale Law Library for their help on a number of research projects, including tracking down obscure sources. For assistance with the FOIA request and lawsuit against the Department of State (Yale Law School Center for Global Legal Challenges v. U.S. Department of State, No. 17-cv-02042 (D. Conn. Dec. 7, 2017)), we thank Hannah Bloch-Wehba, Charles Crain, Diana Lee, Paulina Perlin, and David Schultz of the Media Freedom and Information Access Clinic at Yale Law School. For their work on the data visualizations, see Oona A. Hathaway, Curtis A. Bradley & Jack L. Goldsmith, The Failed Transparency Regime for Executive Agreements: An Empirical and Normative Analysis: Data Visualizations, HARV. L. REV. (Dec. 10, 2020), https://harvardlawreview.org/executive-agreements-vis- ualizations, and Figures 1 and 3 in this Article, we thank Aucher Serr and Natalie Erdem, of Two-N. 631 632 HARVARD LAW REVIEW [Vol. 134:629 these agreements. Together with a series of interviews with lawyers directly involved in the process, this new information has given us an unprecedented look inside the system
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