The Failed Transparency Regime for Executive Agreements: Data Visualizations

The Failed Transparency Regime for Executive Agreements: An Empirical and Normative Analysis was published in the December 2020 issue of the Harvard Law Review.  It analyzes data gleaned from 5,689 non-public cover memos that the Executive Branch included when it reported executive agreements to Congress, as required by law, from January 1989 to January 2017. The Article uses this data to evaluate the effectiveness of the transparency regime for executive agreements.  Here, the Harvard Law Review and the Article’s authors collaborated with the data visualization team at TWO-N to translate the data from the Article into interactive visualizations — the first time, we believe, that such a dynamic data visualization has accompanied a law review article.  All of the underlying data, as well as the cover memos, will be posted in full on Dataverse and are in the process of being uploaded as of December 10, 2020.

Which countries does the United States have executive agreements with from 1989 through 2016?

The cover memos that accompany the executive agreements when they are reported to Congress include a “legal authority” section that briefly identifies the legal basis for the agreement.  We coded these legal authorities on a 5-point scale: “1” (express authorization to conclude agreements); “2” (authorization to negotiate agreements); “3” (authorization to furnish assistance); “4” (authorization to engage in international cooperation); and “5” (no arguable delegation of agreement-making authority”).  (Some cover memos cited only the Constitution.)  Here you can view which countries the United States has agreements with from 1989 through 2016 by country, sorted by (1) the highest rating given to a citation in the legal authority section for each agreement and (2) the topic of the agreement. Once you select the information that interests you, clicking once on a country will bring you to a collection of the cover memos for the agreements involving that country on the Dataverse site.

Note: Only those agreements reported in cover memos have a legal authority rating (“highest rating”).  Those executive agreements in our database that are public but for which we do not have cover memos (and thus no information on the claimed legal authority) are listed as “Not Reported.” 

What topics do these executive agreements address?

The executive agreements cover a wide range of topics. Here you can explore how those topics interact with the country an agreement was with and the highest rating of the legal authorities identified by the State Department for entering that agreement. Clicking once on the country or rating will freeze corresponding bubbles in the other subject area circles. Clicking twice will bring you to a collection of the cover memos for the agreements involving the selected country or rating on the Dataverse site. 

Where were agreements published?

We compared the executive agreements reported in the cover memos to agreements made public, we compared the agreements in the cover memos to those in three databases of international agreements that those outside government can access: (1) Treaties and Other International Acts Series (TIAS), an online database in which the State Department publishes all executive agreements except for agreements that are classified or where “the public interest in such agreements is insufficient to justify their publication”; (2) an archived website where the State Department published unclassified agreements between 2006 and early 2013 (which we refer to as the Case Act Reports (CAR) database); and (3) HeinOnline, a commercial database of international agreements that requires a paid subscription to access. 

What sources of legal authority does the government rely on for these executive agreements?

As described above, the State Department identifies the legal authority for the agreements reported to Congress in non-public cover memos, and we coded these legal authorities on a 5-point scale (we did not code those that that cited only the Constitution).  Each agreement was then coded based on the highest rating given to a citation in the legal authority section for each agreement.  Here you can see a breakdown of agreements by that rating over time.