It is now widely accepted that an agreement between Congress and the executive branch is a complete alternative to a treaty: the president can obtain approval of any agreement through a joint resolution of both houses of Congress, instead of a two-thirds majority of the Senate. As a treaty, such an agreement is the law of the country that replaces inconsistent state laws as well as inconsistent provisions in previous treaties, other international agreements or acts of Congress. A treaty is an international agreement established in writing and by international law between two or more sovereign states, whether inscribed in a single instrument or in two or more related acts. Treaties have many names: conventions, agreements, pacts, pacts, charters and statutes, among others. The choice of name has no legal value. Contracts can generally be categorized into one of two main categories: bilateral (between two countries) and multilateral (between three or more countries). The ex ante executive agreements of Congress are similar to many administrative provisions, as they are often based on vague or broad legal authorizations and are concluded by a large number of executive agencies. Some of the same concerns expressed in the framework of administrative regulation – legality, the registration of interest groups, reckless or corrupt bureaucratic measures, etc. – are also related to ex ante agreements between Congress and the executive branch. But there is at least one key difference: administrative provisions are subject to a complex administrative framework, but ex ante agreements between Congress and the executive branch are not subject to administrative law or any other accountability framework that goes beyond an incomplete and unreased reporting obligation. The Case Act, which came into force in 1972, recognized that executive agreements were becoming the dominant means by which the executive branch entered into international agreements, and Congress opted for transparency to discourage problematic behaviour and allow for the monitoring of potential political and legal problems.
The main mechanism of the case act framework is the requirement that the executive branch notifies Congress within 60 days of the conclusion of executive agreements. As one of us explained in a previous article, it worked very well very early on – because most of these delegations of authority were accompanied by veto legislation that did not require the rule on the President.