Back in 2015, there were loud calls — not least from senators — for President Barack Obama to ask the Senate to ratify the Joint Comprehensive Plan of Action (JCPOA) with Iran, calling it a “treaty.” Instead, he chose to enter into an executive agreement, which has become something of a trend: Treaties are a tiny fraction of international agreements overall. A 2007 study by political scientists Kiki Caruson and Victoria Farrar-Myers found that between 1977 and 1996 presidents negotiated nearly 4,000 executive agreements — but only 300 treaties.
Tuesday, though, many opponents of the agreement argued that Obama’s failure to seek ratification was what allowed President Trump to end it unilaterally. According to Sen. Ben Sasse (R-Neb.): “Donald Trump isn’t ripping up a treaty. … President Obama made a bad deal with Iran without support from Congress, and today President Trump is pulling out of President Obama’s personal commitment, and he doesn’t need Congress’s support to do so.” Rep. Ron DeSantis (R-Fla.) tweeted that “President Trump had every right to withdraw the U.S. from what was effectively an Obama executive agreement.”
Perhaps these lawmakers are fans of Thomas Jefferson’s 1801 manual on parliamentary practice, which reads, “Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded.”
But presidents haven’t necessarily “understood” things the same way.
It’s surely possible that a treaty, in place of an executive agreement, would have wider support. Republicans would have had to vote to ratify it, and thus its abrogation might carry higher political costs. As I noted in 2015, “the difference between seeking a treaty and negotiating an executive agreement is, at base, a political question. So is the outcome of either.” And as political scientists Glen Krutz and Jeffrey Peake argue in their book “Treaty Politics and the Rise of Executive Agreements,” executive agreements conducted in “truly unilateral fashion” without even tacit congressional cooperation will be “codified but essentially hollow.”
Yet all else being equal, calling the JCPOA a “treaty” and getting Senate ratification would not have protected it from a presidential decision that it was “a horrible one-sided deal that should never, ever have been made.” [Continue reading…]