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Executive agreements

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Description: International agreements made by presidents on their own constitutional authority or in cooperation with Congress.


Significance: Executive agreements enhanced presidential leadership in foreign affairs and served as the form for key international commitments from the Yalta Agreement to the North American Free Trade Agreement. On several occasions, the Supreme Court was asked to rule on the constitutionality of an executive agreement.


Executive agreements vary widely in formality and importance. Many address routine economic, military, and political subjects such as postal regulations and trade agreements, and others, such as the Yalta Agreement in 1945, the Vietnam War peace settlement in 1973, and the North American Free Trade Agreement (NAFTA) in 1993, had significant international political and economic consequences. The U.S. Constitution's Article I, section 10, implicitly recognizes executive agreements by its prohibition on states making agreements and compacts with foreign powers, but it does not indicate how executive agreements are related to treaties made by the president with the advice and consent of two-thirds of the Senate. The Supreme Court provided some assistance in Weinberger v. Rossi (1982) when it observed that the word “treaty” in international law referred to a compact between sovereign states, but the Constitution distinguished Article II treaties from those governed by Article IV, section 2, the supremacy clause, which also included executive agreements. As the Court said in United States v. Pink (1942), this meant that a state law inconsistent with an executive agreement had to yield, because the agreement, like a treaty, was the supreme law of the land. Executive agreements and treaties also have to comply with personal constitutional guarantees. In Reid v. Covert (1957), the Court held that an executive agreement providing for trial by courts-martial for U.S. military personnel and their dependents violated the constitutional right to trial by jury. However, the Court never clearly indicated how treaties and agreements differ or defined the president's sole power to make agreements without the Senate and to collaborate with both chambers.


Sole Executive Agreement

Presidents have used their Article II power as commander in chief to make armistice and cease-fire agreements, enter into agreements to protect troops, control occupied areas, and arrange postwar territorial and political matters as at Yalta and Potsdam. Presidents have also construed their Article II diplomatic powers broadly to argue that their authority to settle claims lies within the penumbra of their power to recognize foreign governments. In 1933 President Franklin D. Roosevelt recognized the Soviet Union, established diplomatic relations, and negotiated a claims settlement agreement. In United States v. Belmont (1937) and Pink, the Court held that the Litvinov claims settlement agreement was a legally enforceable international compact that the president, as the sole organ of the federal government in foreign relations, had the authority to negotiate without consulting the Senate. In 1980 President Jimmy Carter negotiated the release of diplomatic personnel held hostage by Iran on the basis of an executive agreement that provided for the arbitration of claims, but in Dames and Moore v. Regan (1981), the Court was more cautious. Pink gave the president a measure of authority to enter into an agreement providing for claims settlement when it was necessary to resolve a major foreign policy dispute, but the Court emphasized that the crucial factor in upholding the agreement was a history of congressional acquiescence that had invited similar presidential actions.


Congressional-Executive Agreements

Presidential collaboration with Congress is based on Article I's requirement that revenue bills originate in the House of Representatives and its grant to Congress of the power to oversee foreign commerce and, under the necessary and proper clause, to make all laws reasonably related to foreign commerce and to the president's foreign relations powers. Congress at times took the initiative and provided presidents with prior authorization to make agreements on postal rates, trademark and copyright regulations, foreign assistance, and reciprocal trade agreements. Presidents also took the initiative and negotiated agreements with foreign governments and then sought authorization from Congress in the form of a statute or a joint resolution. The Congress-initiated agreement has a long historical pedigree, but the use of the president-initiated agreement dates back to World War II (1941-1945) and takes its current form from the Trade Act of 1974. This act stipulated congressional involvement in the negotiation process and a fast-track approval procedure (limited debate, and a thumbs up or down vote with no amendments) that President Bill Clinton used with NAFTA. Executive agreements initiated by presidents have become a largely interchangeable alternative to treaties. They substitute the one-third plus one Senate veto for a simple majority of both chambers, provide the House of Representatives with an equal voice, and eliminate the danger that the House may refuse to approve the appropriation of funds necessary to implement a treaty. The Court has not addressed the constitutional status of these agreements. If it does, its reliance in Dames and Moore on Justice Robert H. Jackson's concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer (1952) could allow it to frame a decision in terms of whether the president's action was taken with the support of, in opposition to, or in the absence of congressional authorization. However, the Court is unlikely to address the larger issue of a president's use of an agreement instead of treaty because it is a political question inappropriate for judicial inquiry. Presidents’ use of executive agreements will continue to be defined by their relationship with Congress and by their awareness that the Senate has objected to extensive use of these agreements. The Bricker Amendment (1954), though it would have conferred explicit constitutional recognition on executive agreements, sought to curtail and regulate them by providing that they would be effective as internal law only if they were supported by legislation. Congress has also been troubled by covert agreements and in the Case Act (1972), required their publication. As a consequence, presidents’ use of executive agreements will be shaped by their respect for the Senate and its treaty power, their awareness that treaties have greater dignity, and their knowledge that the constitutional status of agreements is beyond doubt.



Further Reading

  • Akerman, Bruce, and David Golove. Is NAFTA Constitutional? Cambridge, Mass.: Harvard University Press, 1995.
  • Antieau, Chester James. Our Two Centuries of Law and Life, 1775-1975: The Work of the Supreme Court and the Impact of Both Congress and Presidents. Littleton, Colo.: Fred B. Rothman, 2001.
  • Fisher, Louis. Constitutional Conflicts Between Congress and the President. 4th ed. Lawrence: University Press of Kansas, 1997.
  • Henkin, Louis. Foreign Affairs and the Constitution. New York: W. W. Norton, 1972.
  • Smith, Herbert Arthur. The American Supreme Court as an International Tribunal. Buffalo, N.Y.: William S. Hein, 2003.
  • Yates, Jeff. Popular Justice: Presidential Prestige and Executive Success in the Supreme Court. Albany, N.Y.: State University of New York Press, 2002.