EXECUTIVE AGREEMENTS (Update)

Article II of the Constitution empowers the President to make treaties with the advice and consent of two-thirds of the U.S. senate. An "executive agreement" is an agreement with a foreign government signed by a member of the executive branch without the advice and consent of the Senate. When the executive acts unilaterally the agreement is known as a "sole executive agreement"; when the executive acts with the approval of a simple majority of both houses of Congress the agreement is known as a "congressional–executive agreement." The President has discretion to decide whether to sign an international agreement in the form of an Article II treaty, a sole executive agreement, or a congressional–executive agreement. In deciding which form of agreement is appropriate, the President will consider the relative importance of the agreement, the likelihood of obtaining a supermajority of the Senate or a simple majority of both houses, and the domestic legal effect of the agreement.

The Constitution does not expressly authorize executive agreements. Article I prohibits states from entering into "an Agreement or Compact with another State, or with a foreign Power," without congressional authorization. Some commentators have suggested that this reference indicates that the Framers understood that there were forms of international agreements other than Article II treaties. There is strong evidence that the Framers were referring to international agreements that do not bind the nation in the future. The term "Agreement or Compact" probably derived from the eighteenth-century treatise The Law of Nations by emerich de vattel. In this treatise, Vattel defined an agreement or compact as a contemporaneous exchange that imposes no future obligation. For example, a state might use a compact to settle disputed borders with another state or foreign government. By contrast, Vattel defined a treaty as binding the state in perpetuity. One could infer that the Framers intended that an Article II treaty would bind future administrations, unlike other forms of agreements, including executive agreements.

No executive agreements were concluded until 1817, when President james monroe signed the Rush–Bagot Agreement with Britain to limit military forces along the Great Lakes. Monroe subsequently doubted the constitutionality of this executive agreement and sought the Senate's advice and consent. By 1900, only 124 executive agreements had been concluded over 111 years, and none of them operated to bind the United States prospectively. Presidents understood that an executive agreement, unlike an Article II treaty, could not bind a President's successors. For example, President theodore roosevelt concluded an executive agreement to assume responsibility for Santo Domingo's customs house, but subsequently he decided that, because the agreement might operate prospectively, he needed the Senate's advice and consent.

By the 1930s Presidents increasingly relied on executive agreements. President franklin d. roosevelt signed more than 600 agreements in his four terms in office. Still, Roosevelt respected the traditional distinction between treaties and executive agreements. Then–Attorney General robert h. jackson advised Roosevelt that when "negotiations involve commitments as to the future," they "are customarily submitted for the ratification by a two-thirds vote of the Senate before the future legislative power of the country is committed."

President harry s. truman used executive agreements for the first time in lieu of treaties to bind the nation prospectively when he signed the Bretton Woods Agreements in 1945 establishing the International Monetary Fund and the World Bank, and a protocol in 1947 binding the United States to the General Agreement on Tariffs and Trade (GATT). Congress approved the Bretton Woods Agreements as congressional–executive agreements, but neither the Senate nor Congress ever approved the 1947 GATT.

Since 1947, Presidents have employed Article II treaties and executive agreements interchangeably. The vast majority of all international agreements has been in the form of executive agreements. These include important trade agreements such as the north american free trade agreement (NAFTA), the Canadian Free Trade Agreement, and the World Trade Organization (WTO).

One critical issue is whether an executive agreement should have the same effect on domestic law as an Article II treaty. Article VI of the Constitution provides that treaties "shall be the Supreme Law of the Land." The Supreme Court has interpreted that provision to mean that a treaty supersedes any contrary state law or state constitutional provision and any prior inconsistent federal law. Some commentators have argued that an executive agreement can have the same effect as an Article II treaty in displacing state and federal law. In United States v. Belmont (1937) and United States v. Pink (1942), the Court enforced a sole executive agreement settling outstanding claims by U.S. nationals against the Soviet Union as a condition to reestablishing diplomatic relations. In dames & moore v. regan (1981), the Court upheld a claims settlement agreement negotiated unilaterally by President jimmy carter with Iran for the release of U.S. hostages. The agreement effectively nullified a default judgment obtained by Dames & Moore for a breach of contract by Iran. Other scholars dispute the implication that a President could legislate federal law without any congressional authorization simply by making an agreement with a foreign leader. The domestic legal status of executive agreements remains contestable.

Joel R. Paul
(2000)

(see also: Treaty Power.)

Bibliography

Ackerman, Bruce and Golove, David 1995 Is NAFTA Constitutional? Harvard Law Review 108:799–928.

Borchard, Edwin 1944 Shall the Executive Agreement Replace the Treaty? Yale Law Journal 53:616–683.

Jackson, John H. 1967 The General Agreement on Tariffs and Trade in United States Domestic Law. Michigan Law Review 66:249–313.

Mc Dougal, Myers and Lans, Asher 1945 Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: I. Yale Law Journal 54:181–351.

Mc Lure, Wallace 1941 International Executive Agreements. New York: Columbia University Press.

Paul, Joel R. 1998 The Geopolitical Constitution: Executive Expediency and Executive Agreements. California Law Review 86:671–773.

Tribe, Laurence H. 1995 Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation. Harvard Law Review 108:1221–1303.