On March 28, 2023, the United States and Japan entered into the Agreement Between the Government of the United States of America and the Government of Japan on Strengthening Critical Minerals Supply Chains (the “Trade Agreement”).1 In response to this announcement, Republican and Democratic members of Congress alike expressed concern that the Office of the United States Trade Representative exceeded its authority when negotiating the Trade Agreement. The Trade Agreement took the form of a sole executive agreement, without congressional approval. Last month, during US Trade Representative Ambassador Katherine Tai’s appearances before the Senate Finance and House Ways & Means Committees, Republican members of both committees expressed concern that, absent congressional approval, the next Administration could ignore, back out of, or renegotiate any executive agreement entered into by the Biden Administration.2 Further, Democratic members of the committees argued that, for the Trade Agreement to be effective, it needed labor and environmental provisions and that “the Administration does not have the authority to unilaterally enter into free trade agreements.”3
In light of the above, this Legal Update examines sole executive agreements, including what they are, how they differ from statutorily enacted international agreements (i.e., congressional-executive agreements), and what legal options an administration has to back out of or modify these types of agreements. We note, however, that the effect of international agreements on domestic US law remains a topic of debate among legal experts, and, while we attempt to summarize the leading views on this topic, these views are not necessarily settled law.
What Is a Sole Executive Agreement, and How Does It Differ from Statutorily Enacted International Agreements?
Under US law and practice, an international pact can take one of three forms:
- Treaty: An international agreement “negotiated and signed by a member of the executive branch that enters into force if it is approved by a two-thirds majority of the Senate and is subsequently ratified by the President.”4
- Executive Agreement: “An international agreement that is binding” under international law, and, as detailed below, can come in a number of forms itself, but which the “President enters into without receiving the advice and consent of the Senate.”5
- Nonlegal Agreement: “A pact (or a provision within a pact) between the United States and a foreign entity that is not intended to be binding under international law, but may carry nonlegal incentives for compliance.”6
The US Constitution provides that the president “shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” (Article II, section 2). Treaties are binding agreements between nations and become part of international law. Treaties to which the United States is a party also have the force of federal legislation, forming part of what the Constitution calls “the supreme Law of the Land.”
The majority of international agreements into which the United States enters, however, are executive agreements. According to a 2018 Congressional Research Service (“CRS”) Report, “[c]ommentators estimate[d] that more than 90% of international legal agreements concluded by the United States have taken the form of an executive agreement.”7 There are three categories of executive agreements: 1) congressional-executive agreements, 2) executive agreements made pursuant to a treaty, and 3) sole executive agreements.
As the name suggests, congressional-executive agreements are entered into by the president “with the concurrence of a simple majority” by both the House of Representatives and the Senate.8 Congress must pass implementing legislation, “which includes all the changes to U.S. law required to bring the US into compliance with the agreement.”9 There are two types of congressional-executive agreements: ex ante and ex post. In ex ante agreements, the president “operates pursuant to preexistent authority.”10 In other words, Congress has already passed a statute, which the president has signed into law, that authorizes the president to negotiate and conclude the agreement.11 In ex post agreements, the president negotiates an international agreement “without any specific . . . statutory authorization in advance of the negotiations.”12 He or she then submits the agreement to both houses of Congress for their approval.13 Like domestic legislation, the agreement must pass both chambers by a simple majority, and the president must sign it.14 If Congress makes any modifications to the agreement, the President must present the proposed changes to the “original negotiating state for approval again.”15
Executive agreements made pursuant to treaties are agreements that the president enters into based on “authority created in prior Senate-approved [i.e., two-thirds approved], ratified treaties.”16 Finally, sole executive agreements are agreements into which the president enters “based upon a claim of independent presidential power in the Constitution.”17
Increasingly, courts have come to view sole executive agreements in many instances as the functional equivalent of treaties on the domestic (i.e., US) legal plane. For example, in American Ins. Ass’n v. Garamendi, the US Supreme Court held that “valid executive agreements are fit to preempt state law, just as treaties are.” 539 U.S. 396, 416 (2003).
The legitimacy of a sole executive agreement depends on the agreement’s subject matter. If the agreement “address[es] an area where [the president] has clear, exclusive constitutional authority,” then there is a stronger argument that the agreement is “legally permissible regardless of congressional disagreement” (if such disagreement is evidenced).18 However, where the president’s “constitutional authority over the agreement’s subject matter is unclear,” then reviewing courts may consider whether Congress implicitly approves of, is silent on, or disapproves of the agreement when determining whether the agreement is legitimate.19
How Does an Executive Agreement Affect US Law?
Whether and the extent to which an executive agreement will affect domestic US law depends on whether the provisions of the agreement are “self-executing” or “non-self-executing.” “Self-executing” provisions “have the force of domestic law without the need for subsequent” legislation.20 “Non-self-executing” provisions, on the other hand, usually require Congress to “pass legislation implementing the provision in a domestic statute”21 to authorize US agencies “to carry out the functions and obligations contemplated by the agreement or to make them enforceable in court.”22
Determining whether a provision is self-executing or non-self-executing can be a complicated process. However, the Supreme Court has “deemed a treaty non-self-executing when the text manifest[s] an intent that the treaty . . . not be directly enforceable in US courts, or when the Senate conditioned its advice and consent on the understanding that the treaty was non-self-executing.”23 Furthermore, while the Supreme Court has not opined directly on this topic, “many [lower] courts and commentators agree that provisions in international agreements that would require the United States to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing[.]”24 For example, if a provision requires expenditure of funds or raising revenue, or if it creates criminal liability, lower courts have held that the provision is non-self-executing “because these powers are the exclusive prerogative of Congress.”25 This is exactly what current members of Congress are arguing in the case of the Trade Agreement: because Congress has “primary authority over US trade policy through its constitutional power to levy tariffs and regulate foreign commerce,”26 they claim the executive branch exceeded its constitutional authority by entering into a free trade agreement without congressional approval.
How Can an Administration Withdraw from or Modify an Executive Agreement?
Legal commentators generally agree that “when the President has independent authority to enter into an executive agreement, the President may also independently terminate the agreement without congressional or senatorial approval.”27 Thus, in the case of sole executive agreements, a future administration could unilaterally withdraw the United States from such an agreement or renegotiate the agreement with the other signatories. A recent example is the Paris Agreement. The Paris Agreement is an international treaty on climate change that the United States joined under former President Obama.28 After providing notice of withdrawal as required under the Paris Agreement, the Trump Administration withdrew the United States from the Paris Agreement on November 4, 2020.29 On January 20, 2021, on his first day in office, President Biden signed an executive order to re-admit the United States into the Paris Agreement.30 For a future administration to withdraw the United States from the Trade Agreement, it would need to provide Japan at least 90 days’ notice.31 The termination would “take effect four months after the date on which” the United States provides this notice “or on such other date as the Parties may decide.”32
In contrast, withdrawing from or modifying executive agreements made pursuant to treaties and congressional-executive agreements often depends on “the underlying treaty or statute on which the agreement is based. . . . [I]n the case of executive agreements made pursuant to a treaty, the Senate may condition its consent to the underlying treaty on a requirement that the President not enter into or terminate executive agreements under the authority of the treaty without senatorial of congressional approval.”33 In the case of congressional-executive agreements, “Congress may dictate how termination occurs in the statute authorizing or implementing the agreement.”34 Congress may also direct the president to terminate congressional-executive agreements.35 Finally, while presidents “have asserted the authority to withdraw unilaterally from congressional-executive agreements,” there is “debate over the extent to which the Constitution permits” the president to withdraw from such agreements without the approval of Congress.36
Sole executive agreements have long been a part of the United States’ international legal framework. However, the subjects that these agreements can cover depend on the constitutional powers granted to the executive branch. When a sole executive agreement exceeds those constitutional powers, the validity of the agreement can come into question. Furthermore, sole executive agreements can lead to uncertainty in the area of international law, as subsequent administrations can unilaterally withdraw the United States from the agreements. All of which raises a question: will the Trade Agreement last into the latter half of the decade? The answer to that question may depend on who is in the White House at noon on January 20, 2025.
1 For more information about the Trade Agreement specifically, please see US and Japan Enter into Critical Minerals Trade Deal, Mayer Brown, March 29, 2023.
2 U.S. Trade Representative Testifies on 2023 Agenda, https://www.c-span.org/video/?526852-1/us-trade-representative-testifies-2023-agenda; The President’s 2023 Trade Policy Agenda, https://www.finance.senate.gov/hearings/the-presidents-2023-trade-policy-agenda.
3 Jennifer Doherty, US, Japan Sign Unorthodox Deal On Critical Minerals for EV, LAW360 (Mar. 28, 2023, 6:37pm), available at https://www.law360.com/internationaltrade/articles/1590558?nl_pk=713b8dd7-a28b-4a6c-bc77-17a1dc6e7d84&utm_source=newsletter&utm_medium=email&utm_campaign=internationaltrade&utm_content=2023-03-29&nlsidx=0&nlaidx=0
4 Cong. Rsch. Serv., International Law and Agreements: Their Effect upon U.S. Law 3 (Sept. 19, 2018), available at https://crsreports.congress.gov/product/pdf/RL/RL32528 [hereinafter International Law and Agreements]. Note that the US definition of “treaty” is significantly more narrow than the international definition, which is “any international agreement concluded between states or other entities with international personality . . . if the agreement is intended to have international legal effect.” Frederic L. Kirgis, International Agreements and U.S. Law, 2 ASIL INSIGHTS No. 5 (1997), available at https://www.asil.org/insights/volume/2/issue/5/international-agreements-and-us-law (last visited Apr. 11, 2023) [hereinafter Kirgis, International Agreements and U.S. Law].
9 John G. Murphy, So, How Exactly Does Congress Go About Voting on USMCA?, U.S CHAMBER OF COM., Sept. 6, 2019, https://www.uschamber.com/international/so-how-exactly-does-congress-go-about-voting-usmca.
21 Cong. Rsch. Serv., Self-Executing and Non-Self-Executing Treaties, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artII-S2-C2-1-4/ALDE_00012955/ (last visited Apr. 9, 2023) [hereinafter Self-Executing and Non-Self-Executing Treaties].
26 Cong. Rsch. Serv., U.S. Trade Policy: Background and Current Issues 1 (Jan. 30, 2023), available at https://crsreports.congress.gov/product/pdf/IF/IF10156.
28 Tanya Somanader, President Obama: The United States Formally Enters the Paris Agreement, The White House: President Barack Obama (Sept. 3, 2016, 10:41 AM), https://obamawhitehouse.archives.gov/blog/2016/09/03/president-obama-united-states-formally-enters-paris-agreement.
29 Brady Dennis, Trump makes it official: U.S. will withdraw from the Paris climate accord, WASH. POST (Nov. 4, 2019, 7:17 PM), https://www.washingtonpost.com/climate-environment/2019/11/04/trump-makes-it-official-us-will-withdraw-paris-climate-accord/; Matt McGrath, Climate change: US formally withdraws from Paris agreement, BBC (Nov. 4, 2020), https://www.bbc.com/news/science-environment-54797743.
30 Cong. Rsch. Serv., United States Rejoins the Paris Agreement on Climate Change: Options for Congress (Feb. 25, 2021), available at https://crsreports.congress.gov/product/pdf/IF/IF11746.
31 Agreement Between the Government of the United States of America and the Government of Japan on Strengthening Critical Minerals Supply Chains 8, available at https://ustr.gov/sites/default/files/2023-03/US Japan Critical Minerals Agreement 2023 03 28.pdf (last visited Apr. 11, 2023).