Daniel Bodansky and Peter J. Spiro (Arizona State University Sandra Day O'Connor College of Law and Temple University – James E. Beasley School of Law) have posted Executive Agreements Plus (Vanderbilt Journal of Transnational Law, Forthcoming) on SSRN. Here is the abstract:
Can President Obama join 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. If the Paris Agreement is 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 agreements, 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. The article argues that EA have a long, heretofore undiscovered pedigree. It explores the Obama Administration deployment of the concept, applies it to the Paris Agreement, and argues that, if President Obama accepts the Paris Agreement, it will be as an EA rather than as a sole executive agreement.