The President's Rational Choice of a Treaty's Preratification Pathway: Article II, Congressional-Executive Agreement, or Executive Agreement?

John K Setear

The Journal of Legal Studies, 2002, vol. 31, issue 1, S5-39

Abstract: A president who chooses to seek legislative approval of a treaty risks delay, textual modification, and even outright defeat. Neither the Constitution nor Congress nor the courts constrain this choice. The president nonetheless often seeks legislative approval before ratifying a treaty, whether through the constitutionally specified process of obtaining Senate advice and consent or the extraconstitutional congressional-executive agreement. Why? This article argues that the president risks the hazards of seeking legislative approval in order to send other nations a costly, credible signal of U.S. commitment to the obligations of the treaty. First, the article examines in general terms the choice to seek legislative approval at all and, if sought, which path of legislative approval to employ. Second, the article argues that signaling theory explains why presidents systematically allocate certain issue areas (for example, trade liberalization or arms control) to certain preratification pathways (for example, the congressional-executive agreement or the Article II pathway). Copyright 2002 by the University of Chicago.

Date: 2002
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