However, it is important not to fetishize this dichotomy. With a few exceptions, neither the hypotheses described nor their respective authors purport to explain the executive`s motivations in a way that leads to particularly strong policy recommendations. Instead, in formulating the hypotheses, most commentators are open to the idea that the role of the treaty can only be fully explained if several of the proposed mechanisms are taken into account. 29 Bradley, supra note 9, with 90 (“Most scholars … believes that the presidential power to enter into exclusive executive agreements is much narrower than the presidential power to enter into contracts pursuant to Article II.” Louis Henkin, Foreign Affairs and the United States Constitution (1996) (describes the view that the President will seek Senate approval only for “cautious” reasons, as “unacceptable”). The U.S. Supreme Court Pink (1942) found that international agreements, which were concluded in law, have the same legal status as treaties and do not require Senate approval. To Reid v. Concealed (1957), the Tribunal, while reaffirming the President`s ability to enter into executive agreements, found that such agreements could not be contrary to existing federal law or the Constitution. 47 Terry M. Moe – William G. Howell, The Presidential Power of Unilateral Action, 15 J.
L. Econ. Org. 132, 163 (describes how simply designating an “executive agreement” instead of “treaty” would allow the President to implement a foreign policy without involving the Senate); See also Matthew A. Crenson – Benjamin Ginsberg, Presidential Power: Unchecked and Unbalanced 321 (2007) (on the grounds that Franklin D. Roosevelt`s use of the executive agreement was motivated by a desire to circumvent the Senate). Since each observation in the data set is a contractual year, the analysis takes into account differences in the shelf life of different types of agreements, while maintaining consistent characteristics. Differences in shelf life are estimated from the survival time analysis. These methods are also called event history studies.
Footnote 88 Before proceeding, it is useful to define a few keywords. Survival time analysis is mainly used in medical sciences using the most common terminology in clinical trials. A “subject” is an observation unit, here an agreement. An “event,” “death” or “failure” are synonymous with the appearance of the incident of interest, here the expiration of an agreement. “Survival” is the period between the beginning of observation and the occurrence of the incident, here the period during which an agreement is in effect. Agreements in force during the last observation period are considered “legislated,” i.e. with a survival period that has an unknown floor and ceiling, because the final duration of the agreement cannot be respected. Finally, footnote 89, a “risk rate” refers to the probability of an event occurring. In the United States, executive agreements are made exclusively by the President of the United States. They are one of three mechanisms through which the United States makes binding international commitments.
Some authors view executive agreements as treaties of international law because they bind both the United States and another sovereign state. However, under U.S. constitutional law, executive agreements are not considered treaties within the meaning of the contractual clause of the U.S. Constitution, which requires the Council and the approval of two-thirds of the Senate to be considered a treaty. The dataset consists of all the agreements in force in the Intermediate Treaty Series (TIF) that were signed and ratified between 1982 and 2012. Footnote 67 TIF is the official collection of international agreements in force by the United States.