Executive Agreements vs. Treaties: Skirting the Constitution?

What makes a treaty binding? Who holds the power to shape U.S. foreign policy, the President or the Senate?

In this episode, hosts Savannah Eccles Johnston and Matthew Brogdon unpack the constitutional roots and modern challenges of the U.S. treaty-making process. From Washington's awkward Senate visit to Wilson’s League of Nations failure, they trace the battle over presidential diplomacy and legislative oversight.

The conversation moves from 18th-century compromise to 21st-century executive agreements, exploring how the Constitution’s sparse language on treaties has led to decades of political, legal, and procedural improvisation.

If you’ve ever wondered why the Senate approves treaties, how executive agreements avoid that step, or whether a president can unilaterally exit NATO, this episode is for you.

Key Takeaways

• The treaty power is constitutionally assigned to the President with Senate oversight requiring two-thirds Senate approval.
• Historical precedent, including Washington’s early attempt at direct consultation, has shaped today’s treaty process as more formal and less collaborative.
• Executive agreements are not constitutionally equivalent to treaties but have become a common tool for presidents to shape foreign policy without Senate approval.
• Whether a president can unilaterally withdraw from a treaty (like NATO) remains a legally unresolved question with major implications for the separation of powers.
• The rise of executive agreements reflects both practical political realities and blurred constitutional boundaries, raising questions about long-term democratic accountability.
• Courts have largely avoided intervening in treaty termination and executive agreements, often treating them as political questions.
• Despite growing reliance on executive agreements, if a nation wants a lasting and enforceable deal with the U.S., it still needs a treaty.

In This Episode

• (00:00:00) Introduction to treaty power
• (00:00:30) Debate at the Constitutional Convention
• (00:01:04) Hamilton’s push for executive diplomacy
• (00:03:22) Washington’s failed in-person treaty consultation
• (00:05:22) The Jay Treaty and Senate consent precedent
• (00:09:00) Wilson, the League of Nations, and the Senate backlash
• (00:13:35) Mutual defense and declaring war
• (00:20:45) Can a president leave NATO?
• (00:23:49) Carter, Taiwan, and Goldwater v. Carter
• (00:27:48) Executive agreements vs. treaties
• (00:32:00) Senate’s quiet acceptance of executive agreements
• (00:35:08) Recap of constitutional treaty principles

Notable Quotes

[00:03:48] "This is the only time that Washington sort of loses his cool in public as president… he winds up storming out of the Senate chamber." — Matthew Brogdon

[00:07:18] "Washington basically says, 'I tried that. That doesn’t work. All you get to do is say yes or no.'" — Savannah Eccles Johnston

[00:12:42] "The Constitution puts the Senate in the president's sandbox whenever it comes to the treaty power." — Matthew Brogdon

[00:19:35] "So much of America’s interactions with the world are kind of weird because we act as if the president has unilateral authority on foreign affairs—and he doesn’t." — Savannah Eccles Johnston

[00:24:55] "We had a treaty obligation to Taiwan... In order to establish diplomatic relations with China, we had to rescind any recognition of Taiwan." — Matthew Brogdon

[00:31:11] "Any future president can just disregard or ignore [an executive agreement]... It’s a commitment of that particular president." — Matthew Brogdon