Executive Agreements+

Did President Obama act constitutionally in joining the Paris Climate Change Agreement without seeking the approval of the Senate or Congress? According to the conventional, tripartite paradigm for analyzing the president’s treaty-making power, this question is conceptualized as an issue of the president’s independent constitutional power. Since the Paris Agreement was not approved by the Senate as an Article II treaty or by Congress as a congressional-executive agreement, then it must be a sole executive agreement.

 This Article challenges the conventional, tripartite paradigm as both conceptually inadequate and historically inaccurate, and proposes a fourth category of international agreement, which it christens “executive agreements+” (EA+). EA+ are neither congressional-executive agreements nor sole executive agreements; they fall somewhere in between. They are supported, but not specifically authorized, by congressional action. This Article argues that EA+ have a long, heretofore undiscovered pedigree. It then explores the Obama administration’s deployment of the concept, applies it to the Paris Agreement, and argues that the Paris Agreement is best understood as an EA+ rather than as a sole executive agreement.

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