Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: II (with Asher Lans), 54 Yale Law Journal 534 (1945)
The existence under our Constitution of the variety of interchangeable techniques, described in the previous Sections of this article, for perfecting international agreements has obviously served the nation well in the past. It may in the future, if the facts of variety and interchangeability are fully recognized and acted upon by the public and by all branches of the Government, provide a system for the conduct of our foreign relations which is adequate both to cope with the imperatives of survival and to secure our other national interests in the contemporary world—that is, a system whereby policy is quickly and easily formed by democratic means for the nation as a whole, and whereby the execution of policy is prompt and efficient, without being subjected to the adventitious whims and disintegrating attacks of obstructionist minority control. The flexibility and dispatch which such a system may require are available in the President's powers to make the initial decision as to how any particular agreement is to be perfected and to make and perform, on his own responsibility, all agreements needed to meet war and other emergencies. Conversely, ample check upon any arbitrary or unwise exercise of executive power, beyond what is imposed by public opinion and the President's unique responsibility to the voters of the whole nation, is insured by the fact that, without the aid of the Congress, the powers of the President, or even of the President and the Senate, to perform important international agreements are in the long run severely limited. Sooner or later, and in most instances sooner, a President who is engaged in important international undertakings must secure funds and supplementary legislation and must, therefore, submit his negotiations to the scrutiny and approval or disapproval of a majority of the elected representatives of the people. Full and free responsiveness to democratic control and to the national interest can be made certain by use of the Congressional-Executive agreement as a functional alternative to the treaty, enabling the President to go to both houses of the Congress for confirmation of any particular agreement, either in the first instance, or after it has become apparent that an agreement previously submitted to the Senate will be blocked by a minority obdurate in opposing majority will. In such a system the survival, as a sort of constitutional vermiform appendix, of an additional undemocratic mode of validating international agreements by the two-thirds vote of a single house, can do no harm to the national interest, if it is agreed by all parties that this mode of validation is not exclusive of the more democratic mode and that its continued existence is not to be used to obfuscate issues of substantive policy by the invocation of procedural subtleties.
Date of Authorship for this Version
McDougal, Myres S. and Lans, Asher, "Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: II" (1945). Faculty Scholarship Series. 2486.