70 That procedure is correct, with the exception of a few exceptions which are due to peculiarities in the publication process. For example, the Guide (2011) lists the START I agreement as indicated in the TIF (2010) and is not indicated in the TIF (2011), Although the agreement expired on 5 December 2009 (The corresponding identifier is LAV 3172, see U.S. Department of State, A Guide to the United States Treaties in Force 870 (Igor I. Kavass ed., 2011)). This is due to the fact that the contract expired too shortly before the deadline for publication of the TIF 2010. However, all agreements are affected in the same way by characteristics of the underlying disclosure mechanism, making it unlikely that these errors will create distortions in the estimate. On the national territory, the question of legal substitutability is traditionally more controversial. Of course, there are few arguments why Congress participation can be totally nullified by replacing the treaty with the executive agreement alone. Footnote 29 However, views on the interchangeability of treaties and agreements between Congress and the executive branch are less harmonious. The Constitution does not explicitly mention the existence of an instrument similar to today`s congress-executive agreement, which gives rise to a debate on how to interpret this silence. For early proponents, it was more than enough to show that interchangeability offers flexibility and best describes U.S. practice. Foreign policy to assert that treaties and agreements between Congress and the executive branch should serve as a legal substitute.
Footnote 30 Subsequent arguments have been based on the idea of the existence of “constitutional moments” that would inform the interpretation of the Constitution through the consistent practice of the President, Congress, and the Supreme Court. Footnote 31 Such moments, arising in particular from the practice of the 1940s, would have altered the importance of the contractual clause and served as the constitutional basis for the agreement between Congress and the executive. Similarly, Hathaway`s analysis is purely descriptive and is not able to empirically examine why contracts are more or less common in certain thematic areas. This makes it impossible to determine whether the historical conventions motivate the application of the treaty in different thematic areas or whether other considerations might be at stake. To date, the debate over the continued relevance of treaties has not been resolved in a context where agreements between Congress and the executive branch are so readily available and widespread. . . .