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Congress evaluates its role building international policy alongside the president

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Foreign Relations Committee Chairman Bob Corker, R- Tenn. / Photo: Senate Foreign Relations Committee

WASHINGTON (Sinclair Broadcast Group) – Lawmakers on the Senate Foreign Relations Committee gathered Tuesday to discussed the authority of the president and the Senate in engaging in or withdrawing from vital international policy.

According to the Berkeley Law Library, treaties and international agreements are the responsibility of the executive branch. However, in Article II Section 2 of the United States Constitution, it states that"he [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” These agreements involving the Senate are referred to as “congressional-executive agreements.”

Berkeley Law Library outlines this process in the following order:

  • "Secretary of State authorizes negotiation
  • U.S. representatives negotiate
  • Parties agree on terms, and upon authorization of Secretary of State, sign treaty
  • President submits treaty to Senate
  • Senate Foreign Relations Committee considers treaty and reports to Senate
  • Senate considers and approves by 2/3 majority
  • President proclaims entry into force"

Some of the “treaties” the public hears about the president engaging in are executive agreements, which are not the same as the type of treaties mentioned in Article II of the constitution. These types of agreements are called “executive agreements.”

Foreign Relations Committee Chairman Bob Corker, R- Tenn., called on Congress to take a more active role in treaties and the negotiations that occur when forming them.

“Through the years the president from both parties have increasingly abused their authority to enter into and terminate binding international agreements with little input from Congress,” Corker said. “Unilateral presidential action without meaningful congressional partner undermines our national strength.”

Corker said that the hearing was not to “constrain” the powers of the president with respect to diplomacy, but to encourage the United States speaks with one voice on foreign policy and diplomatic affairs.

Ranking Member of the Committee Senator Ben Cardin, D-Md., highlighted that treaties are not as commonly used as they once were to enter into international agreements. Presidents are opting to use executive agreements to avoid Senate gridlock and red tape.

“So, the president when he wanted to enter into a climate agreement he chose an executive agreement rather than a treaty. When he wanted to enter into an agreement with the international community with Iran, he chose an executive agreement rather than a treaty,” Cardin said. “Why? Because he couldn’t get it ratified in the United States Senate under any scenario.”

Hearing witness and professor at the Duke University School of Law Curtis A. Bradley said in his statement the reason behind the increase in executive actions is the high demand for them during the 20th century.

“Well over 90 percent of all binding international agreements concluded by the United States since the 1930s have been concluded without senatorial advice and consent,” Bradley said. “One reason is practical: the number of international agreements rose dramatically during the 20th century, and more efficient processes for concluding international agreements were needed.”

Bradly also stated that presidential authority “is highly problematic from the perspective of the separation of powers.” Corker mentioned it was this very issue our founding fathers worked to prevent.

“Our founder understood of entrusting too much of this power to the president alone and the constitution clearly provides for a shared authority to enter into binding international agreements,” Corker said.

The professor suggested in his testimony that some of these “deficiencies” could be remedied through congressional action.

Hearing witness and Former Principal Deputy National Security Adviser, Senior Research Scholar for Columbia University Avril D. Haines said that not all treaties are in the interest of the United States and therefore must be reviewed on a case-by-case basis.

“The current Administration’s approach to treaties and international law may serve to undermine the international legal order we helped to build on a bi-partisan basis over the history of our country – one that in my view is critical to our security, prosperity and values,” Haines said.

To help ensure greater transparency, Haines suggested the committee review “Senate rules of procedures for considering and disposing of treaties.”

“Through a streamlining process, it might be possible to make it easier to deliberate on treaties, while at the same time making it harder for one or two Senators to effectively block a debate on treaties,” Haines stated.

Editor's Note: Information on the treaty-making process was provided by the Berkely Law Library.