Signaling Behavior, Congressional-Executive Agreements, and the SALT I Interim Agreement

This Article, using a law and behavioral economics perspective, carves out a "signaling exception" to the general rule that Presidents must ratify national security accords as treaties and international trade accords as congressional-executive agreements. Under this signaling exception, the President can submit national security accords as congressional-executive agreements when 1) the accord is temporary, and 2) the accord signals that the United States has engaged in learning behavior (as described in the political science literature) about the nature of international affairs. Signaling behavior is particularly common in temporary agreements. The temporary nature of interim agreements allows the United States to signal incremental trust in its counterparties while hedging its risk. Using the SALT I accords as a case study, this Article locates the President's power to signal in the well-accepted sole communication power, which, under the signaling exception, trumps the Senate's right to advise and consent when the accord in question contains a disproportionate signaling component vis-a-vis its substantive, bargained-for component. Presidents could thus send signals in the form of sole executive agreements or congressional-executive agreements. The Constitution requires the latter vehicle because signals display network effects: they become more credible to foreign powers, and hence more valuable, with congressional support. INTRODUCTION Presidents have traditionally won congressional ratification of international accords using one of two procedures. They can submit an accord for approval by two-thirds of the Senate, as outlined in Article II, Section 2 of the U.S. Constitution. Alternatively, they can submit an accord for majority approval in both chambers of Congress as a congressional-executive agreement-a procedure that the Constitution does not explicitly prescribe. Although Presidents since James Madison have utilized the con-, gressional-executive agreement as a vehicle for ratification,1 congressional-executive agreements have mushroomed since the Yalta accords of World War II. For instance, in 1993, President Clinton submitted the controversial North American Free Trade Agreement (NAFTA) for ratification as a congressional-executive agreement. Thus, crafting a firm constitutional underpinning for congressional-executive agreements is crucial to the ongoing crediIMAGE FORMULA11 bility of American diplomacy. Absent such a constitutional underpinning, America risks seeing its negotiating partners grow recalcitrant at the bargaining table. After all, no rational foreign leader would make delicate concessions to Washington only to see an American court-or more likely, American public opinion-- rebuff the finished pact as unconstitutional. Unfortunately, in recent years, a coherent theory of the congressional-executive agreement has eluded constitutional law scholars. The majority viewpoint sees treaties and congressional-executive agreements as fully interchangeable: Presidents may submit an international accord for ratification using either vehicle.2 Bruce Ackerman and David Golove have attempted to lend an intellectual foundation to the interchangeability theory by describing the advent of congressional-executive agreements as a non-textual amendment to the Constitution.3 Rival scholars, such as Laurence Tribe, however, find the utter lack of textual support for congressional-executive agreements in the Constitution troubling.4 These scholars advocate a theory of "treaty exclusivity," or the idea that treaties are the only vehicle for ratifying international accords. Treaty exclusivity, however, clashes with practice. To adopt treaty exclusivity is to delegitimate, from a constitutional standpoint, large pieces of the world's postwar economic and security architecture. John C. Yoo has recently attempted to reconcile these two schools of thought by providing a practice-based, or functional, constitutional justification for the congressional-executive agreement. …