EXECUTIVE AGREEMENTS

Executive agreements—that is, international agreements concluded between heads of state or their representatives, commonly without the necessity of parliamentary approval—are nowhere explicitly authorized in the Constitution. The Constitution is silent about international agreement-making except as it vests in the President, in cooperation with the Senate, the power to make and enter into treaties. Nevertheless the principle has long been established that the capacity of the United States to negotiate and enter into international agreements is not exhausted by the treaty power. This principle has been repeatedly recognized in the actual conduct of United States foreign affairs since the early days of the Republic. Since the mid-nineteenth century, but especially since world war ii, the use of executive agreements in United States practice has exceeded the use of treaties by an increasingly wide margin.

The expression "executive agreement," which is not widely used outside the United States but which has its equivalents abroad, is understood by the Department of State to refer, in general, to any international agreement brought into force relative to the United States without the advice and consent of the Senate that is constitutionally required for treaties. In particular, it is understood to refer to three kinds of agreements: those made pursuant to, or in accordance with, an existing treaty; those made subject to congressional approval or implementation ("congressional-executive agreements"); and those made under, and in accordance with, the President's constitutional powers ("sole executive agreements"). None of these executive agreements is subject to the formal treaty-making process specified in Article II, section 2, clause 2, of the Constitution.

A treaty-based executive agreement, provided that it is within the intent, scope, and subject matter of the parent treaty, has the same validity and effect as the treaty itself and is subject to the same constitutional limitations. Deriving from one of the elements of "the supreme law of the land," it takes precedence over all inconsistent state laws and follows the customary rule favoring the instrument later in time in case of inconsistency with a federal statute. A conspicuous example of a treaty-based executive agreement is the traditional compromis defining the terms of submission to adjudication or arbitration under a basic convention. Another is found in the hundreds of status of forces agreements and other agreements required to carry out the north atlantic treaty, the linchpin of United States policy in Europe since world war ii.

A congressional-executive agreement is based on either a prior or a subsequent act of Congress authorizing the making of the agreement or providing general authority for the executive action needed internationally to implement the legislation in question. The scope or subject matter of the agreement is the same whether the congressional act comes before or after the negotiation of the agreement; the act of Congress often takes the form of an authorization to enter into or effectuate an agreement already negotiated. In principle, however, the agreement must reside within the joint powers of Congress and the President in order to have constitutional validity. An agreement outside the legal competence of Congress or the President, authorities generally agree, would be unconstitutional. On the other hand, as the American Law Institute has commented, "the source of authority to make a congressional-executive agreement may be broader even than the sum of the respective powers of Congress and the President," and "in international matters the President and Congress together have all the powers of the United States inherent in its sovereignty and nationhood and can therefore make any international agreement on any subject." In any event, partly out of a concern to check and balance the President in the conduct of foreign affairs, the vast majority of executive agreements entered into by the United States—for example, the Lend-Lease Agreements of World War II and the Trade Expansion Acts of 1934 and 1962—are of this type. Like its treaty-based counterpart, deriving from one of the elements of "the supreme law of the land," the congressional-executive agreement supersedes all inconsistent state law and follows the customary rule favoring the instrument later in time in case of inconsistency with a federal statute.

Sole executive agreements are international agreements entered into by the President without reference to treaty or statutory authority, that is, exclusively on the basis of the President's constitutional powers as chief executive and commander-in-chief, responsible for United States foreign relations and military affairs. Department of State records indicate that only a small percentage of executive agreements are of this type and that the great majority have dealt with essentially routine diplomatic and military matters. Accordingly, with relatively minor exception (such as agreements settling pecuniary and personal injury claims of citizens against foreign governments), they have had little direct impact on private interests and therefore have given rise to little domestic litigation. However, in part out of fear that the President might undertake by international agreement what would be unconstitutional by statute, as in fact occurred in missouri v. holland (1920), such agreements have not been free of controversy. Two issues in particular continue to stand out.

First there is the question, not yet conclusively settled, of whether Congress may legislate to prohibit or otherwise limit sole executive agreements. Although comprehensive limitations on such agreements, including the proposed bricker amendment of 1953–1954, have so far failed to be adopted, Congress has nonetheless occasionally restricted presidential authority in ways that appear to preclude some executive agreements. For example, the War Powers Resolution of 1973, requiring congressional authorization to introduce combat troops into hostile situations, arguably restrains the President from making agreements that would commit United States armed forces to undeclared foreign wars. Similarly, the Arms Control and Disarmament Act of 1961 forbids the limitation or reduction of armaments "except pursuant to the treaty making power … or unless authorized by further legislation of the Congress of the United States." The validity of such restrictions upon presidential authority has been challenged by Presidents and has yet to be determined by the Supreme Court.

Second, while it is widely accepted that the President, under the "executive power" clause, has the authority to conclude sole executive agreements that are not inconsistent with legislation in areas where Congress has primary responsibility, there is a question as to whether the President alone may make an agreement inconsistent with an act of Congress or, alternatively, whether a sole executive agreement may supersede earlier inconsistent congressional legislation. The prevailing view, rooted in the belief that it would be unconscionable for an act of a single person—the President—to repeal an act of Congress, is that sole executive agreements are inoperative as law in the United States to the extent that they conflict with a prior act of Congress in an area of congressional competence. This is the position taken by a federal appeals court in United States v. Guy W. Capps, Inc. (4th Circuit, 1953) and by the American Law Institute. The Supreme Court has not yet rendered a definitive decision in these respects, however.

The foregoing two issues aside, there is broad agreement about the scope and effect of sole executive agreements as a matter of constitutional law. Like the other two kinds of executive agreements, they are subject to the same limitations applicable to treaties, they are not limited by the tenth amendment, and they supersede all inconsistent state law.

In sum, all three categories of executive agreements bespeak a historic trend toward strong executive leadership in foreign affairs. Only three final points need be added. First, the judgment to resort to these agreements in lieu of the treaty alternative is essentially a political one, affected more by surrounding circumstances than by abstract theories of law. Second, once in force, executive agreements are presumptively binding upon the United States and the other parties to them under international law, to the same extent and in the same way as treaties. Third, the international obligations assumed under such agreements survive all subsequent limitations or restrictions in domestic law.

Burns H. Weston
(1986)

Bibliography

American Law Institute 1965 Restatement of the Law, Second: Foreign Relations Law of the United States. Pages 361–448. St. Paul, Minn.: American Law Institute.

——1980 Restatement of the Law: Foreign Relations Law of the United States (Revised), Tentative Draft No. 1. Pages 71–144. Philadelphia: American Law Institute.

Berger, Raoul 1972 The Presidential Monopoly of Foreign Relations. Michigan Law Review 71:1–58.

Borchard, Edwin 1944 Shall the Executive Agreement Replace the Treaty? Yale Law Journal 53:664–683.

Henkin, Louis 1972 Foreign Affairs and the Constitution. Pages 173–188. Mineola, N.Y.: Foundation Press.

Mc Dougal, Myres and Lans, Asher 1945 Treaties and Congressional-Executive Agreements: Interchangeable Instruments of National Policy. Yale Law Journal 54:181–351, 534–615.