Earlier this summer, the international trade community celebrated reaching agreement around several topics at the World Trade Organization (WTO) in Geneva. After many years of stagnation in negotiations, the WTO demonstrated its continued relevance in the development of shared rules and principles related to international commerce. Now the member countries must take these agreements home and undertake whatever steps may be necessary to implement the commitments to which they have just agreed. How precisely does this homecoming exercise work? It turns out we know surprisingly little about those processes, including here in the United States.
This is a strange omission in our implementation knowledge base. We have detailed academic work and relevant guiding case law on how U.S. statutes are implemented by federal agencies. A collection of courts and scholars have likewise considered how treaties are implemented by Congress. We care a lot about how the perennial sausage is made by our agencies and by Congress, but when it comes to cross-border sausages, however, we lack information on the actors, the means, and the significance of these regulatory moves.
Until now, we have had almost no account of agreement implementation in the United States – the processes through which agencies develop cross-border programs and new domestic rules derived from foreign relations – nor have we had a sense of how those choices alter the roles of the branches in domestic and international lawmaking. In a forthcoming Article, I rely on information from agency records as well as from officials engaged in decision-making surrounding implementation to elaborate these activities. (A clarifying note: There are many types of international agreements. This Article and this post deal exclusively with agreements into which the executive branch has entered without congressional approval.)
Take the following sample implementation scenarios:
- Congress delegates authority to the U.S. Department of Agriculture (USDA) to enter into agreements with other governments concerning common or equivalent standards for organic products. USDA officials negotiate an agreement with Taiwan concerning the approval of Taiwan’s organic labelling certification as equivalent to U.S. domestic standards. To implement the agreement, USDA posts a copy of the agreement on the USDA website and issues an internal memorandum regarding the operation of its content. U.S. agricultural specialists working at the border then begin to confirm the validity of the Taiwanese organic label on products imported by U.S. companies that are then sold throughout the United States.
- Congress authorizes the Treasury Department to regulate the intellectual property protection of product names. The United States subsequently enters into an agreement with the European Union concerning the intellectual property protection of the name “brandy de jerez” to be reserved for brandy from Spain. To implement it, Treasury then prepares a formal ruling regarding this commitment.
- Congress directs the Secretary of State to enter into “negotiations . . . as may be necessary and appropriate” to achieve specified fisheries goals. The State Department negotiates an agreement with Canada which says that the United States will “ensure that sufficient coho salmon enter [a certain river] to meet the agreed spawning objective,” among other commitments. To implement it, the National Marine Fisheries Service, which is part of the Department of Commerce, carries out a notice-and-comment rulemaking to address the overfished coho salmon stock along the U.S.-Canada border.
In each instance set out above, an agency decided how it would subsequently treat, as a matter of law and as a matter of mechanics, the commitments to which it or another agency agreed. This final step of implementation can take a variety of legal and administrative forms at the discretion of the agency. None of these scenarios would appear to pose any great risk to democracy nor any major concern about executive overreach. And yet, none of these followed a traditional administrative law procedure from start to finish. In fact, none of them followed any clearly prescribed procedure at all. Rather, agencies are developing means of implementing agreements extemporaneously – and wholly apart from any preexisting domestic regulatory power they may or may not have on the agreement topic.
Two categories of implementation mechanisms emerge, distinguished by their internal methodologies: what I call procedural implementation and automatic implementation. The former refers to circumstances in which agencies take additional lawmaking steps to convert the agreement commitments into domestic law or operation. The latter refers to instances in which the agency acts on the commitment without undertaking any further administrative steps. Both types are used readily and both often without deliberation or planning. Agencies can use these techniques both to drift into regulatory areas managed by other agencies and to box out other agencies and Congress from administration in those spaces.
Like most regulatory maneuvers, improvised implementation has both good and bad features, and lessons for other areas of the law. For one, the agreement-implementation story may be a model for those who argue against heavy-handed, stipulated process. Agencies do not appear to be abusing their broad licenses. There are efficiency gains and flexibility for the executive to deploy its expertise. But there are downsides to agency ad-libbing in this way: disruptive intra-branch conflict and uncertainty among them.
The most unsettling aspect of improvised implementation is the confusion it creates surrounding the legal status of executive agreements. In a conflict between a pre-existing rule and a new agreement, it is unclear which preempts the other. The Article considers the implications of three possible approaches for resolving these questions and for thinking about agency choices in improvised implementation. One approach underscores statutory implementation principles vested in ordinary rulemaking and adjudication as part of agencies’ domestic regulatory work. A second concentrates on foreign relations rules about treaties but applies them loosely to executive agreements, seeking to integrate concepts of treaty law into agency practice. Finally, a third alternative rejects the position that agencies can undertake any implementation work absent express congressional delegation. Each of the three approaches lends itself to a different set of legal outcomes. And each provides agencies with variable degrees of empowerment, redistributing the burdens of implementation across the branches. Since none of the three benefits from commanding support, the consequence is a degree of dissonance in just what work the implementation mechanisms are doing.
Rather than sort through these three approaches, or ask the courts to do so, I advocate greater congressional guidance on the front end – what I call prescriptive implementation. Congress could set out instruction for agencies’ operationalization of these agreements. Sometimes it already does so, though such prescriptions are uncommon. In these few instances, Congress provides authorization, agency method, and the mode of implementation. Clearer pathways such as these, even if diverse, would alleviate some of the legally risky improvisation by the executive branch that this study highlights.
Regardless of whether our institutional actors are willing to undertake this retail-level reform, understanding the executive’s improvised implementation mechanisms provides useful lessons for the lenses through which scholars and courts think both about agreements and about agency behavior. For one, these agencies’ experiences cast doubt on assumptions about the limits of agency action in the face of legislative delegation. They also surface a further layer of the agency lawmaking exercise: implementation by one agency of commitments made by a sibling agency. I pick up still others in the Article.
Finally, while conducting this study, it became clearer just how the lack of crossover between foreign relations law and administrative law has led to a disjunction of explanations as to what agencies are doing. Regulatory law scholarship tends to exceptionalize foreign instruments and foreign-facing lawmaking, leaving those matters to foreign relations law, and the foreign relations law literature tends to focus on the implementation of treaties alone, leaving the rest to regulatory scholars. These agreement implementation practices raise issues both of appropriate agency supervision and of enforceability of our foreign commitments – issues that remain at the heart of both disciplines.
Kathleen Claussen is Professor of Law at the University of Miami School of Law.