“The vast majority of our international commitments take effect without congressional approval.”
— Joe Biden on Monday, March 9th, 2015 in a statement released to the media
The complicated process of forging international agreements has burst into the spotlight now that the Obama administration is trying to negotiate a nuclear deal with Iran.
Recently, 47 Republican senators penned an open letter to Iranian leaders. It was structured as a civics lesson — one intended to remind Iran that even if it is negotiating with the executive branch, Congress has powers to derail any deal it finds objectionable.
Among other things, the March 9 letter said that the next president could revoke an agreement struck by Obama “with the stroke of a pen, and future Congresses could modify the terms of the agreement at any time.” (We rated that Mostly True.)
Vice President Joe Biden released a toughly worded statement taking issue with the senators’ perspective. Biden said in part:
“Around the world, America’s influence depends on its ability to honor its commitments. Some of these are made in international agreements approved by Congress. However, as the authors of this letter must know, the vast majority of our international commitments take effect without congressional approval. And that will be the case should the United States, the United Kingdom, France, Russia, China, and Germany reach an understanding with Iran.”
We wondered whether Biden was right that “the vast majority of our international commitments take effect without congressional approval.”
Several statistical tallies show that there is a large and growing reliance on what are known as “executive agreements,” at the expense of approving treaties, which require a two-thirds vote in the Senate.
The upside of pursuing an executive agreement is that they are easier to negotiate — they don’t require approval from Congress, which removes a major obstacle. The downside of an executive agreement, however, is that it’s easier to reverse.
Research published by Jeffrey S. Peake of Clemson University and Glen Krutz of the University of Oklahoma found executive agreements accounting for a steadily rising percentage of international agreements.
• Between 1789 and 1839, about 31 percent were executive agreements rather than treaties.
• From 1839 to 1889, the share rose to 52.5 percent.
• From 1889 to 1939, it climbed again to 63.6 percent.
• From 1939 to 1989, it rose even further, to 94.3 percent.
But if you use this data set, there’s a problem for Biden’s claim. While executive agreements are, as a whole, less reliant on congressional action than treaties are, that’s not the same thing as saying that all of them are entirely unaffected by congressional action.
That’s because there are actually three kinds of executive agreements, each with a different degree of congressional input:
• Congressional-executive agreements. The North American Free Trade Agreement and the General Agreement on Tariffs and Trade were done this way.
• Executive agreements that follow an earlier treaty.
• Sole executive agreements.
Only a small percentage of international agreements escape congressional input entirely. These agreements may not be vetted by Congress in the same way, and to the same degree, as treaties are, but Biden’s phrasing fuzzes the differences.
When we checked with Biden’s office, they said that looking at the question in this way is misleading.
Because Iran’s nuclear program is a major geopolitical issue, we think many Americans would assume that any deal would at least be considered binding. But in the wake of the senators’ letter, the Obama administration has made clear in testimony to Congress that any agreement with Iran would actually fall into the non-binding category.
Experts told us the distinction between binding and non-binding agreements is often lost even among professionals. And Biden’s staff emphasized to PolitiFact that non-binding arrangements aren’t trivial.
A number of significant commitments have been considered non-binding. Recent examples include the framework for disarming Syria of chemical weapons and greenhouse gas targets agreed to last year by the United States and China.
Biden’s office added that non-binding doesn’t equal non-enforceable. The United States has methods to enforce them, such as sanctions.
Independent experts expressed concern that Biden used the phrase the “vast majority of our international commitments” without being able to show his arithmetic.
“The problem I have (with Biden’s claim) is that I have no idea how anyone would figure out how many non-binding agreements there are, or indeed what even counts as a non-binding agreement,” said Michael D. Ramsey, law professor at the University of San Diego. “The president and his diplomats are constantly making arrangements with foreign officials on many issues large and small, but most of these are not extensively negotiated or directed to important matters.”
Our ruling
Biden said “the vast majority of our international commitments take effect without congressional approval.”
When looking at binding agreements, Biden is likely off base. While it’s true that formal treaties represent a small minority of all binding international agreements, most of the other types of non-treaty, binding agreements do have some congressional input.
Biden may be on safer ground once you add in non-binding agreements. However, Biden’s office did not provide statistics to back up this claim, and independent experts said they aren’t aware that such a tally exists. So the claim that agreements negotiated without congressional input represent “the vast majority of our international commitments” is essentially informed speculation.
We rate Biden’s claim Half True.
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