Molly Nixon
The Constitution’s treaty ratification process, which requires the consent of two-thirds of the Senate, covers a shrinking share of the promises the United States makes to other countries. The rest are concluded as executive agreements under varying degrees of congressional authorization. For decades, the Case–Zablocki Act’s (Case Act) reporting requirements have been Congress’ main window into the executive branch’s growing practice of striking international deals outside the treaty process. But it’s a poor substitute for affirmative consent, and as a recent US Government Accountability Office (GAO) report makes clear, administrations routinely flout even those modest obligations, resulting in Congress learning about US commitments sometimes months after they’ve been finalized.
Recognizing that presidents were increasingly bypassing the constitutional treaty process, Congress passed the Case Act in 1972. It directed the State Department to provide Congress with international agreements within 60 days after they’ve entered into force. That requirement became more important in the 1980s, after the Supreme Court (in INS v. Chadha) rejected as unconstitutional the legislative veto—a procedure allowing one or both houses of Congress to nullify a statutorily authorized executive branch action. Many executive agreements were made pursuant to statutes that contained a legislative veto, but when that tool was taken away, the authorities were often either redelegated without the veto or survived with that check severed. The Case Act’s transparency regime became Congress’ next-best means for oversight of executive branch commitments to foreign countries.
An amendment in the National Defense Authorization Act for Fiscal Year 2023 expanded the law’s reach. Congress broadened the State Department’s reporting obligation to include “qualifying nonbinding instruments” (QNIs). These are commitments that don’t legally bind the US but “could reasonably be expected to have a significant impact on the foreign policy of the United States” or that were the subject of a written communication from either of the congressional foreign affairs committees. Congress also shortened the reporting period so that the State Department must provide both international agreements and QNIs finalized the prior month, rather than 60 days after they’ve entered into force. And it required the executive branch to provide an explanation of the legal authority supporting each agreement and QNI.
The addition of QNIs was important: Legal scholars Curtis Bradley, Jack Goldsmith, and Oona Hathaway observed shortly after the amendment that “most of the consequential (and often controversial) international agreements made by the last three presidential administrations were nonbinding.” This category of nonbinding instruments, while open to some debate, likely includes agreements such as the Obama administration’s 2015 Joint Comprehensive Plan of Action with Iran and its Paris emissions reduction pledge, signed the same year, as well as the Trump administration’s March 2025 arrangement providing for the transfer of individuals from the US to El Salvador and (at least arguably) the recent memorandum of understanding with Iran.
But transparency is not the same as consent, and the law does little to close that gap. While the Senate Committee on Foreign Relations report on the Case Act amendment opined that the reporting requirement “does not replace consultation with Congress on the development of our foreign policy or substantive engagement with the public on commitments entered into on behalf of the American people,” the actual text of the bill offered only “the sense of Congress that the executive branch should not prescribe or otherwise commit to or include specific legislative text in a treaty, executive agreement, or nonbinding instrument” without congressional authorization.
And the Case Act’s provisions call into doubt even that mild contention. The act requires the State Department to detail “any new or amended statutory or regulatory authority anticipated to be required to fully implement” the agreements and QNIs that became operative in the prior month. But it’s not clear how a QNI, at least, could “require” changes to statutory authorities. And if one did, Congress—the only branch that can provide any statutory authority—should presumably have weighed in before an agreement anticipating such authority is concluded, much less operative.
Perhaps more troubling, the law excludes from its disclosure requirements QNIs entered into pursuant to Department of Defense, Armed Forces, or intelligence authorities, “creat[ing] a major gap in the new oversight regime,” according to Bradley, Goldsmith, and Hathaway, who say that the Department of Defense identified more than 6,000 nonbinding agreements in response to their Freedom of Information Act lawsuit.
An Unimpressive Reporting Record
Putting aside issues with the law itself, GAO’s recent review of the State Department’s compliance record is not encouraging. Of the 311 nonclassified international agreements and QNIs reported to Congress between October 2023 and March 2025, nearly a third were late. One agreement, concluded in early November 2024, wasn’t reported to Congress until the end of March 2025, meaning Congress didn’t learn about that US commitment until nearly five months after it became final. And the executive branch provided only a blanket statement on its legal authority for the reported QNIs, citing the president’s “authority under Article II to represent the nation in foreign affairs.”
The State Department was also deficient in meeting its public-facing duties, missing the statutory 120-day deadline for publishing agreement text on its website roughly half the time. GAO found that the information the department did post was scattered across four separate webpages, with no way to search by country, agency, or subject.
Temple University Law Professor Duncan Hollis says that “things have only gotten worse” since the GAO’s review period ended. He reports that the “second Trump administration has repeatedly flouted the Case Act’s requirements,” and, quoting a lawsuit brought by the Lawfare Institute, writes that the administration has declined to post or explain a number of executive agreements, including those covering “deportation of foreign nationals to Latin America, economic and defense partnerships in the Middle East, and trade with various allies.”
There are good reasons for why the Constitution requires two-thirds of the Senate to ratify a treaty. In his 1796 Farewell Address, President George Washington warned Americans against the dangers of foreign entanglements; convincing a supermajority of Senators that a particular entanglement is worth the trade-offs helps ensure that US commitments are limited and meaningful. In foreign affairs, as elsewhere, Congress should demand compliance with the Constitution’s requirements.
If a return to the Article II treaty ratification process isn’t on the political horizon, Congress could take a step in the right direction by automatically restricting the use of appropriated funds for the implementation of any late-reported agreement, requiring a vote to waive that restriction, rather than to impose it. (Congress has twice denied funding for unreported agreements—for FYs 1988 and 1989 and again for FYs 2005–2007—but those funding restrictions ended when the agreement was transmitted, mitigating their impact and compliance-motivating effects.) Expanding the use of report-and-wait frameworks, which prevent a proposed instrument from taking effect until a specified time after it has been submitted to Congress, would also reshape executive branch incentives.
GAO’s findings aren’t headline-grabbing assertions of unbounded executive authority. But they suggest a story familiar to anyone who has watched Congress try to police the executive branch. After delegating power, Congress frequently struggles to understand—much less influence—how that power is being used. Reporting requirements like those in the Case Act are often treated as an afterthought because there’s little cost to being late. And without an ex post mechanism, such as the legislative veto, to check executive exercises of that delegated authority, the first branch finds itself increasingly an afterthought in American government.
