International Agreements (Part II): Examining Tools for Congressional Influence Over International Instruments

International Agreements (Part II): Examining Tools for Congressional Influence Over International Instruments

Legal Sidebari

International Agreements (Part II): Examining
Tools for Congressional Influence Over
International Instruments
September 29, 2023
This Legal Sidebar examines options for Congress to influence international instruments. It is the second
in a three-part series on international agreements in the U.S. legal system. Part I introduces the primary of
forms of international instruments and the process for making them. Part III addresses legislative
measures that increase transparency into the United States’ international obligations. For more
information on these topics, see International Law and Agreements: Their Effect upon U.S. Law.
Congressional Influence Over International Instruments
Based on its constitutional powers, the legislative branch has a unique set of tools to influence
international agreements, and the level of influence exercised varies depending on the type of instrument.
As discussed in Part I of this series, international agreement-making has evolved since the Founding era,
and the President now concludes executive agreements and non-binding instruments more often than
treaties, which are submitted to the Senate for advice and consent. A different suite of congressional tools
may be available to influence non-treaty instruments. Congress’s authority may also vary depending on
whether an instrument addresses an authority assigned to Congress in Article I of the Constitution, an
exclusive presidential power outlined in Article II, or a blend of issues. For example, Congress has broad
authority to shape trade agreements based on its power over foreign commerce, but its ability to influence
agreements related to recognition of foreign governments may be limited because recognition is an
exclusive presidential prerogative.
“Advice and Consent” and the Senate’s Role in Treaty-Making
When the United States seeks to conclude an international agreement as a treaty, the Senate plays an
essential part based on its constitutional role to provide advice and consent. In this process, the Senate can
shape treaties’ interpretation and effect by conditioning its consent on reservations, understandings,
declarations (RUDs), and other conditions, discussed in this In Focus.
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Authorizing Congressional-Executive Agreements
Apart from treaties, Congress has the power to grant or revoke statutory authorizations for congressional-
executive agreements, and there are several methods available to Congress. Congress can enact legislation
that gives the executive branch advance (also called ex ante) permission to conclude agreements. It can
pass legislation that gives after-the-fact (or ex post) approval to agreements that the executive branch has
already negotiated and signed. Congress can also incorporate elements of both methods by giving the
executive branch ex ante authority to negotiate and sign agreements while requiring ex post congressional
approval before the agreement enters into force.
Some statutes give the executive branch broad agreement-making authority. The Foreign Assistance Act,
for example, authorizes the President to “furnish military assistance, on such terms and conditions as he
may determine . . . will strengthen the security of the United States and promote world peace.” Other laws
are more prescriptive and only authorize agreements that meet defined criteria. For example, data-sharing
agreements authorized under the CLOUD Act must meet a detailed set of requirements and are only
available to countries that “afford robust substantive and procedural protections for privacy and civil
liberties.”
“Report-and-Wait” Frameworks
Laws establishing “report-and-wait” frameworks create mechanisms for increased congressional control
over non-treaty instruments. This model of legislation requires the executive branch to submit a proposed
instrument to Congress within a specified time before it can take effect. After receiving the text, Congress
can use expedited (also known as “fast track”) legislative procedures to act on the instrument. Some laws
provide that an instrument will enter into force unless Congress enacts a joint resolution of disapproval
within a defined time. Others require Congress to enact new legislation that gives ex post approval before
the instrument can take effect. The report-and-wait model is common for trade agreements, but Congress
has used it for other executive agreements and non-binding instruments.
Congressional Objective-Setting
Congress may wish to encourage the pursuit of certain objectives in U.S. negotiations with foreign
countries and international organizations. The Supreme Court has stated in dicta that the President has
exclusive power to conduct international negotiations, but historical practice shows there are avenues for
Congress to set initiatives on the international stage. For example, Congress can enact non-binding
recommendations and “sense of” provisions encouraging the executive branch to pursue certain
objectives. Non-binding recommendations and resolutions helped catalyze several major international
agreements, including the North Atlantic Treaty and the World Bank’s Articles of Agreement.
Congress can also encourage the executive branch to pursue defined goals by authorizing executive
agreements within parameters that align with congressional aims. Some laws authorizing congressional-
executive agreements set negotiating objectives for agreements to be pursued under the statutory
authority. In the trade agreements context, Congress frequently uses report-and-wait frameworks that
facilitate fast-track approval if the President follows statutorily defined negotiating requirements.
Legislation that requires—rather than authorizes or encourages—the President to pursue international
instruments may raise constitutional objections. The Office of Legal Counsel (OLC) in the Department of
Justice contends that legislation dictating the “‘time, scope, or objectives’ of international negotiations”
can unconstitutionally intrude on the President’s foreign affairs power. According to OLC, Congress can
offer the President fast-track procedures in return for the President following congressional objectives, but
Congress cannot restrict the President’s independent authority to forgo expedited procedures and pursue
an instrument with different aims.

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In line with OLC’s view, one U.S. court of appeals held that a statute requiring the Secretary of State to
negotiate a sea turtle conservation convention violated separation of powers principles. Despite this
opinion, Congress has continued to enact laws that require the President to pursue some international
agreements. A similar set of laws directs the executive branch to use the “voice and vote” of the United
States in international organizations to advance congressional goals. On a few occasions, Presidents have
raised constitutional concerns with these mandates in signing statements, which occasionally state that the
President will treat them as non-binding. Other times, Presidents have signed the laws without objection.
Oversight and Accountability Mechanisms
Congress has used the fol owing legislative mechanisms to facilitate oversight and accountability in the executive branch’s
international-agreement-making practice.
•
Certification requirements: Making authorizations for congressional-executive agreements contingent on
certification that statutory requirements are satisfied, requiring periodic renewal of certifications, and applying
certification requirements to changes and amendments to agreements
•
Interagency deliberation: Mandating interagency deliberation and requiring concurrence of multiple agencies in
international instrument-related certifications
•
Information-sharing: Requiring congressional reporting, briefings, and consultations on international-instrument-
related issues with regular audits on statutory compliance provided to Congress
•
Power of the purse: Withholding funding related to agreements using the appropriations power
•
Prohibiting action without agreement: Prohibiting the President from taking unilateral actions on the
international stage without first concluding an international agreement
•
Monitoring implementation: Mandating information-sharing and certifications related to ongoing compliance with
and implementation of agreements
•
Sunset: Terminating authorizations for executive agreements at a defined time unless renewed
Administrative Agreement-Making Procedures
The Administrative Procedure Act (APA) subjects some executive branch agency actions to transparency
and public participation requirements, but the law exempts actions involving “military or foreign affairs
functions” from key requirements, and it does not cover the President’s actions. Because some procedural
provisions of the APA do not apply to actions related to international instruments, Congress has
sometimes enacted legislation that defines the internal processes through which the executive branch
negotiates and concludes international agreements.
Some requirements are context-specific. The legislation authorizing international postal agreements, for
example, mandates several procedural steps. The Secretary of State must coordinate with executive
branch agencies; meet with public sector advisory groups; consider the Postal Regulatory Commission’s
views; and maintain a liaison with congressional committees, the Postal Service, and other stakeholders.
In addition, legislation authorizing congressional-executive agreements sometimes directs the executive
branch to consider congressional views and public input as a condition to using fast-track authority.
Other statutes apply to broad groups of instruments. For instance, a statute commonly called the Case-
Zablocki Act requires executive branch officials to consult with the Secretary of State before concluding
binding international agreements. As discussed in Part III of this series, provisions in the James M. Inhofe
National Defense Authorization Act for Fiscal Year 2023, which went into effect on September 19, 2023,
build on the Case-Zablocki Act and require executive branch agencies to follow interagency coordination
processes and transparency mandates when concluding binding agreements and some non-binding
instruments.
Although many statutory agreement-making procedures have not garnered constitutional objections,
President Biden issued a signing statement in August 2023 in connection with the United States-Taiwan

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Initiative on 21st-Century Trade First Agreement Implementation Act that raised constitutional concerns.
The Act gave ex post approval to a U.S.-Taiwan trade agreement and set forth transparency and
consultation requirements for future agreements between the two partners. The Act does not authorize
future agreements or create a fast-track process to approve them, but it imposes procedural mandates if
the President independently pursues future agreements. Specifically, the Act requires the executive
branch, among other things, to provide daily briefings to congressional committees and leaders during
negotiations, share and allow time for review of negotiating texts, and include a congressional advisory
group as members of the U.S. delegation. President Biden’s signing statement argued that, to the extent
these requirements would infringe upon his constitutional authority to negotiate with a foreign partner, the
executive branch will treat them as non-binding.
Controlling Implementation
When a change in domestic law is necessary to implement an international instrument, the task of
providing that legislation falls to Congress. This constitutional power allows Congress to shape
international instruments’ role in the U.S. legal system, but most instruments do not require new
legislation. International agreements and non-binding instruments are often silent on how they should be
implemented, and the executive branch frequently decides how implementation will occur in the United
States. Executive branch agencies sometimes implement instruments through administrative rulemaking
procedures or by applying them directly without additional implementing processes. Congress could
consider exerting greater control over international instruments through legislation dictating how they are
implemented domestically.
In some legislative models, such as the trade promotion authority discussed below, Congress has used a
comprehensive set of legislative requirements to increase congressional influence at all stages of the
agreement-making process—from objective-setting to implementation.

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Tools in the Trade Promotion Authority Framework
The legislative model known as trade promotion authority (TPA), the latest version of which expired in 2021, provides an
il ustrative example of legislation that authorizes international agreements while combining tools for congressional control
and oversight at each stage of the agreement-making process. TPA created a framework to negotiate, conclude, and
implement trade agreements using the fol owing requirements and features over the course of the agreement-making
process.
•
Objective-setting: Statutorily defined objectives and policy goals to pursue in negotiations
•
Pre-negotiation: Congressional notification and consultation requirements before the executive branch begins
negotiations
•
During negotiations: Mandatory congressional oversight and consultation with public and congressional engagement
during negotiations
•
Before signature: Additional congressional consultation prior to signing an agreement; mandatory pre-signature
reporting with a fast-track resolution of disapproval process if the executive branch’s report does not align with
statutory objectives
•
Before entry-into-force: Requirement for the President to submit an agreement’s text, draft implementing
legislation, proposed administrative action, and other supporting information to Congress before an agreement enters
into force
•
Entry-into-force and implementation: Fast-track process for Congress to simultaneously approve an agreement
and enact implementing legislation; agreement does not enter into force unless implementing legislation is enacted
•
Other features: creation of a congressional advisory group; development of information-sharing guidelines; fast-track
resolution of disapproval process if executive branch does not consult with or notify Congress
Withdrawal from International Instruments
Congress could consider efforts to counter the increasing presidential control over withdrawal from
international instruments. One method for congressional influence is for the legislative branch to
prescribe a withdrawal process when it authorizes or gives advice and consent to international
instruments. OLC opined in 2018 that, when the authorizing act does not specify a withdrawal method,
Congress has little ability to control the withdrawal process through legislation. In a 2020 opinion, OLC
took the position that treaty withdrawal is an exclusive presidential power and that Congress cannot
constitutionally restrict the President’s discretion to withdraw by imposing a 120-day notice-and-waiting
period on a previously ratified treaty.
Courts to date have not described the President’s withdrawal power as broadly as OLC. The weight of
judicial authority suggests that the interbranch debate over withdrawal power presents a political question
that is more appropriately resolved through political processes than through judicially determined legal
principles. To the extent that withdrawal is a political question, Congress can use its traditional
authorities, such as its legislative authority and oversight powers, to guide the resolution of disagreement
with the executive branch. A provision in the Senate-passed version of the National Defense
Authorization Act for Fiscal Year 2024 could test Congress’s power to regulate withdrawal by prohibiting
the President from withdrawing from the North Atlantic Treaty without the advice and consent of the
Senate.

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Author Information

Stephen P. Mulligan

Legislative Attorney

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