Constitutionally the President Can’t Make “Executive Agreements” with Other Countries

Pres. Donald Trump and North Korean leader Kim Jong Un reached a preliminary agreement to “denuclearize the Korean peninsula” during a historic summit in Singapore. But pundits and talking heads have missed a crucial fact in the midst of all the analysis. The president cannot constitutionally make any kind of legally-binding agreement without the advice and consent of the Senate.

The “executive agreement” signed by Trump and Kim Jong Un had four points.

  1. The United States and the DPRK commit to establish new U.S.-DPRK relations in accordance with the desire of the peoples of the two countries for peace and prosperity.
  2. The United States and the DPRK will join their efforts to build a lasting and stable peace regime on the Korean Peninsula.
  3. Reaffirming the April 27, 2018 Panmunjom Declaration, the DPRK commits to work toward complete denuclearization of the Korean Peninsula.
  4. The United States and the DPRK commit to recovering POW/MIA remains, including the immediate repatriation of those already identified.

We’ve already seen a great deal of debate on the substance of this agreement. But lost in the shuffle is the fact that constitutionally speaking, there is no such thing as an “executive agreement” with another country, and all arrangements with foreign powers must be subject to the treaty-making process – wherein ratification is secured only through the consent of two-thirds of the Senate.

“Executive agreements” that deliberately bypass this process, utilized strictly for political purposes from Theodore Roosevelt onward, have no place in a republican system and have done much to encourage a return to classic monarchism – where the executive held unlimited power over foreign relations.

If the Senate refuses to do their job to assent to the treaty, any resultant “deal” with North Korea will be no legally different from Obama’s unratified counterpart with Iran.

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