U.S. President Donald Trump has concentrated government power in his hands since the start of his second term. Much has been written about his one-man rule by executive order, his appointments based on personal loyalty, and his outrage at judges who defy him. But the American public should be equally alarmed by Trump’s personalization of international treaties.
Significant foreign treaties are normally ratified following either a two-thirds majority vote in the U.S. Senate or a majority vote in both houses of Congress. When a president acts alone, those treaties typically involve minor matters and are called “sole executive agreements.” Historically, all major treaties—such as those that created the United Nations, the World Bank, and NATO, but also treaties that lowered tariffs, secured human rights, and allowed the extradition of dangerous criminals—had some form of congressional consent. Congress has also famously refused consent for treaties it found wanting, such as the Treaty of Versailles, the Comprehensive Nuclear Test Ban Treaty, and the Convention on the Rights of Persons with Disabilities.
Today, we are witnessing the death of this entire U.S. treaty system. Trump has not been shy about doing deals with foreign nations, but he has not submitted any treaties to the Senate or Congress for approval. Instead, he has acted as if treaties were solely the prerogative of the executive branch, personally taking center stage in concluding agreements, like the one with Ukraine on critical mineral resources. He authorized more than a dozen international agreements in his first six months, most notably his so-called trade deals, and is pursuing dozens more. Some of these are not binding at all, like the political arrangement on strategic civil nuclear cooperation with El Salvador. It is generally uncontroversial for the president to conclude non-binding agreements without congressional approval. But the rest of Trump’s agreements appear to rely on extreme claims of presidential authority to qualify them as sole executive agreements.
You will not find any other president in all of U.S. history who has personalized the making of international treaties by shunning Congress in this way. But there is certainly a precedent for Trump’s approach: the monarchs of the Middle Ages.
Back then, kings and queens regularly concluded personal treaties. Emer de Vattel—a jurist and diplomat whose 1758 treatise, The Law of Nations, was widely read by the framers of the U.S. Constitution—noted the historical difference between personal treaties made by a monarch (which expired with their death) and a “real” treaty that “attaches to the body of the state, and subsists as long as the state.” As the modern international legal system emerged in 16th- and 17th-century Europe, sovereign states began to supersede monarchs as the dominant legal actors. In this new legal era, which persists today, leaders and parliaments now approve all treaties as mere agents of their nations, which are legally bound—much as CEOs sign contracts on behalf of corporations without triggering their own personal responsibility.
The move from a personal to a sovereign conception of treaties was critical, for it tied a nation’s international capacity to ratify treaties to the requirements of its own legal system. If a national constitution required legislative approval, then even countries with monarchs as their heads of state needed to obtain that approval. Indeed, the modern law of treaties provides that a nation’s consent to a treaty may be voided if it obviously violated its own law in expressing that consent.
Excluding Congress from treaty-making is thus out of step with modern international law and opens a legal avenue to voiding whatever Trump signs—in addition to being undemocratic and unconstitutional. It is also dangerous for several reasons. The first is a lack of transparency. President Woodrow Wilson famously called on nations to end secret treaties, a proposal later adopted into international law. History is rife with harmful violations of this rule, like the secret portion of the 1939 Nazi-Soviet pact that divided Eastern Europe between them and set off World War II. Today, a similar secrecy surrounds Trump’s supposed trade deals, of which the texts have not been made public. Japan and South Korea have both disputed the administration’s descriptions of their deals or denied that there is a final agreement at all. The American people have no idea what obligations Trump has made in their name.
Playing fast and loose like this, the Trump administration’s deals could require the country to spend money, a power solely of the U.S. House of Representatives. The summit with Russian President Vladimir Putin suggests outcomes that could be even more dire: What if Trump makes the United States a guarantor of a Russia-Ukraine peace treaty that recognizes Russia’s conquests? Any such accord likely violates international law, permitting Ukraine to reject the treaty at any time. What if Putin tells Trump that Ukraine breached the peace, whether or not that is true? Would the United States then be obliged to assist Russia militarily, an exercise of war powers constitutionally shared between the president and Congress?
Trump’s personal agreements may also contradict treaties that Congress previously approved. For instance, the White House is negotiating trade deals with Canada, Mexico, and South Korea, three of the 20 countries with which the United States already has free trade agreements previously approved by both chambers of Congress. Sole executive agreements could effectively supplant these earlier agreements—another maneuver of questionable constitutionality.
Finally, secret personal agreements can make it impossible for courts to fulfill their constitutional role, for instance in protecting individuals’ rights. The arrangement concluded with El Salvador in March, under which the administration transferred hundreds of foreign citizens to the infamous CECOT prison, appears to have been secret until the end of May. Members of Congress and deportees’ attorneys demanded to see it before then, but the administration rebuffed those requests. Not being able to review the agreement put U.S. courts in the impossible position of determining whether the United States had legal grounds to demand that the wrongly deported Kilmar Abrego Garcia be returned. (As it turned out, Trump had made a non-binding political commitment that gave no legal authority to any request to return the deportees. The Supreme Court finally ordered the administration to “facilitate” his return.)
In a similarly opaque case, the administration has been deporting some immigrants to Ghana, which in turn is expected to send them to third countries. When questioned by a judge, a Justice Department lawyer attested that the United States did not have an agreement with Ghana to facilitate the transfers. But the Ghanaian foreign minister stated in a public speech that there was indeed an agreement that had been reviewed by Ghana’s cabinet and attorney general. With the Trump administration not sending treaties to Congress for approval and delaying its reporting of the agreed-to text, the judge has no independent means of determining who to believe.
In 1788, Alexander Hamilton explained in one of the Federalist Papers that the U.S. Constitution did not assign treaty-making entirely to the executive or the legislature. In doing so, he emphasized a break with the old model of absolute royal authority: “However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration.” Our break from the British monarchy, in other words, led to vesting the treaty-making power in the president and the Congress jointly, not in one man. Nor is it a power that will pass via some monarchical succession to Trump’s familial successors.
Ideally, Congress would take Hamilton’s admonition to heart and demand restoration of its treaty-making roles. We are under no illusion that the current Congress will confront the president over his treaty policy. Still, Americans should resist subordinating legislative power (or in this case, the non-exercise of that power) to a personalized political movement. Those legislators who care about the integrity of U.S. foreign relations could start by insisting that Trump follow the law and provide the full text of all U.S. treaties and significant political commitments. Depending on what those texts show, members could urge restrictions on funding for treaties not submitted for approval, particularly those inconsistent with prior U.S. treaties. If Congress doesn’t reassert its constitutional prerogatives soon, America may slide into a monarchical conception of treaties, with all our new international obligations and commitments dictated solely by the president’s whims.
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