The Treaty That Wasn't

There is an amendment to the Constitution you will not find in any textbook. It was never ratified by the states. No Congress passed it. No convention proposed it. But it functions exactly as if it existed, and it has quietly transformed American foreign policy for nearly a century. It is the Executive Agreement Amendment, an unwritten revision to Article II, Section 2 that reads something like this: the President may make binding international commitments with the advice and consent of no one, provided the subject is important enough to avoid the Senate. The Framers never wrote that. They wrote the opposite. And we have allowed their design to be erased by practice, convenience, and the relentless expansion of executive power.

What the Constitution Actually Says

Let me be tedious for a moment, because the text matters. Article II, Section 2, Clause 2 states that 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. That is the only method the Constitution provides for making binding international agreements. There is no executive agreement clause. No sole executive power to contract with foreign nations. The President negotiates, the Senate consents by a supermajority, and the treaty is made. James Madison explained why in Federalist Number 58. A simple majority is insufficient for matters that commit the whole nation. A supermajority requirement protects against the danger of a majority faction binding the minority to measures that would be injurious to the public good. The Treaty Clause is a deliberate friction point, a constitutional brake on presidential overreach in foreign affairs. John Adams, reflecting on the Constitution's design, put it even more bluntly. He said the President shall have the power of making treaties, but not without the advice and consent of the Senate. This is a wise precaution against making treaties lightly. That precaution has been systematically dismantled.

The Quiet Coup

Executive agreements have existed since the early Republic. George Washington used one to resolve a postal dispute with Britain. Thomas Jefferson concluded an agreement on prisoners of war. But these were minor, administrative, and limited, precisely the kind of day-to-day diplomatic housekeeping that no one expected to require the full treaty machinery. The transformation began in earnest in the twentieth century. Franklin Roosevelt used executive agreements extensively during World War II, arguing that national security required speed. The Supreme Court gave its blessing in United States versus Belmont in 1937 and United States versus Pink in 1942, holding that executive agreements have the same legal force as treaties, at least for purposes of domestic law. The genie was out of the bottle. Consider the numbers. In the first 150 years of the Republic, the United States entered roughly six hundred treaties and twelve hundred executive agreements. From 1939 to 2018, the United States entered two thousand treaties and more than sixteen thousand executive agreements. The ratio has inverted entirely. Treaties are now the exception. Executive agreements are the rule. What kind of agreements? The Iran nuclear deal, the Joint Comprehensive Plan of Action, was an executive agreement. The Paris Climate Accord was an executive agreement. The Trans-Pacific Partnership was negotiated as an executive agreement, though never ratified. The Deferred Action for Childhood Arrivals program, which fundamentally altered immigration enforcement, was an executive agreement with Mexico in the form of a memorandum. The Open Skies Treaty modifications were executive agreements. The United States Afghanistan Bilateral Security Agreement that governed our military presence after 2014 was an executive agreement. Every one of these commitments bound the United States in ways that would have required a treaty under any honest reading of the Constitution. Not one received a two-thirds Senate vote.

The Costs Are Not Abstract

Defenders of executive agreements will tell you this is efficient. The world moves faster than the Senate. Treaties take too long. The supermajority requirement is a relic of a slower age. This argument is deeply unconservative. Efficiency is not a constitutional value. The Constitution was designed to be inefficient, to slow things down, to require consensus, to force deliberation. The Treaty Clause is not a bug from 1787 that we have finally fixed. It is a feature that protects the republic from the transient enthusiasms of a single President or party. The costs of abandoning it are threefold. First, the Senate's constitutional role is gutted. The Advice and Consent power is not a formality. It is the institutional check, the states' representation, on executive foreign policy. When a President can bypass the Senate entirely, the entire architecture of separated powers collapses at the water's edge. The President becomes not the chief diplomat but the sole diplomat, answerable to no one but the next election. Second, durability vanishes. A treaty represents a national consensus. It binds the United States because it was made with the consent of the states, a supermajority of their senators. An executive agreement represents the will of one person, enforceable only as long as that person or a like-minded successor holds office. The result is that every new President can undo the foreign policy of the previous one with a stroke of a pen. Trump withdrew from the Paris Accord. Biden rejoined it. Trump pulled out of the Iran deal. Biden tried to renegotiate it. Our allies know that an executive agreement is only as durable as the next election. Our adversaries know it too. It makes every commitment weaker. Third, it empowers the administrative state. Executive agreements are often implemented through agency regulations, not legislation. The President signs an agreement, and then the Environmental Protection Agency or the State Department interprets existing law to comply with it. Congress is bypassed entirely, not just on the treaty but on the domestic implementation. This is how the Paris Accord became domestic policy without a single vote. The EPA simply reinterpreted the Clean Air Act to align with the agreement's targets. That is not governance. That is executive lawmaking.

The Objection and the Rebuttal

The most common defense is that the Constitution does not actually require treaties for everything. The President has inherent Article II powers over foreign affairs. Executive agreements are a valid exercise of those powers. This argument proves too much. If the President's inherent powers extend to any international agreement he chooses to make, then the Treaty Clause is surplusage, a dead letter written into the Constitution for no reason. The Framers did not write dead letters. They wrote a specific, enumerated process for making treaties. If they had wanted the President to be able to make binding agreements on his own authority, they would have said so. They did not. The Treaty Clause is an explicit limitation on presidential power, not a suggestion. The Supreme Court has never directly held that executive agreements can replace treaties for all purposes. The Belmont and Pink cases involved specific circumstances, diplomatic recognition and settlement of claims, that arguably fell within the President's recognition power. The Court has never said that a President can use executive agreements to commit the United States to long-term, substantive obligations that would otherwise require a treaty. But the political branches have acted as if that is the law, and no one has stopped them.

What Restoration Would Look Like

The remedy is not complicated, but it would require a Congress willing to reclaim its constitutional authority. The most direct approach is for Congress to pass a statute requiring Senate approval, by two-thirds, for any international agreement that would be binding under international law or that commits the United States to significant obligations. The Case-Zablocki Act of 1972 already requires that executive agreements be transmitted to Congress. It does not require Senate consent. A simple amendment would close that gap. The more principled approach is for the courts to recognize that the Treaty Clause is the exclusive method for making binding international commitments unless Congress has expressly delegated treaty-making authority to the President in a specific context. The Court has been reluctant to police this boundary, but the expansion has become so extreme that a case is ripe for the taking. Neither approach will happen without a political movement that understands what has been lost. The American people have been told that executive agreements are normal, necessary, and harmless. They are none of those things. They are an unconstitutional end-run around the Senate, a slow erosion of republican government, and a transfer of power from the many to the one.

The Founders' Warning

Thomas Jefferson, writing about the treaty power in his Manual of Parliamentary Practice, warned that by the general power to make treaties, the President and Senate may alienate the great rights of the people. That is why the Constitution requires a supermajority, to make alienation difficult. We have abandoned that protection in the name of convenience. We have told ourselves that the world is too complex for constitutional processes. We have accepted an imperial presidency because it is easier than demanding that our leaders actually persuade. The Constitution has not changed. We have. And the next time a President signs an executive agreement committing the United States to a trillion-dollar climate pledge, a nuclear deal with a hostile power, or a security guarantee to a fragile ally, ask yourself this. Did the Senate consent? Two-thirds of them? If not, we are living under a government of men, not laws, and the Framers would not recognize the republic they built.