Executive Agreements Relying on Implied Statutory Authority: A Response to Bodansky and Spiro
Until recently, the law surrounding executive agreements has been a subject of attention from a relatively small number of academics concerned with foreign relations law, along with State Department lawyers who have a need to deploy the underlying concepts in concrete determinations. Then, with little advance warning, the Paris Agreement thrust legal doctrines surrounding executive agreements to center stage in public policy debates and in the popular press. President Donald Trump’s campaign promise to “cancel” the Paris Agreement has drawn even more attention to the issue. Unfortunately, the result has been a great deal of confusion, often needlessly contributing to turbulent confrontations about the contours of the executive agreement power, when clarity and precision instead are called for.
Daniel Bodansky and Peter Spiro appropriately focus on a subset of executive agreements, namely those whose domestic legal authority is a federal statute that does not expressly authorize the executive branch to conclude international agreements. As they note, the Paris Agreement is not the first international agreement to be concluded by the United States in this mode. Also as observed in their Article, this is an approach that has been deployed in the past by the executive branch with respect to a number of international environmental agreements, especially those addressing air pollution.