International agreements made by presidents on their own constitutional authority or in cooperation with Congress.
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
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
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
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
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.
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.
Dames and Moore v. Regan
Foreign affairs and foreign policy
Youngstown Sheet and Tube Co. v. Sawyer