An executive agreement[1] is an agreement between the heads of government of two or more countries that has not been ratified by the legislature when treaties are ratified. Executive agreements are considered politically binding to distinguish them from legally binding treaties. It is true, of course, that treaties with foreign nations are also interpreted carefully so as not to deviate from the authority and jurisdiction of the states of that nation, unless this is clearly necessary to achieve national policy. But the law of the State must yield if it is incompatible with or interferes with the policies or provisions of a treaty, covenant or international agreement. Secondly, the power of a State to refuse the application of rights on the basis of foreign law, which is contrary to the public policy of the forum. must give way to comprehensive federal policy, which is supported by a treaty, pact or international agreement. . . . A treaty is an international agreement concluded in writing between two or more sovereign States and subject to international law, whether contained in a single instrument or in two or more interconnected agreements. Treaties have many names: conventions, agreements, alliances, pacts, charters and statutes, among others. The choice of name has no legal significance. Treaties generally fall into one of two broad categories: bilateral (between two countries) and multilateral (between three or more countries).
The Constitution provides for only one procedure for the conclusion of international agreements. Article II states that the President ”shall have the power, through and with the agreement of the Council and the Senate, to conclude treaties provided that two-thirds of the senators present agree.” However, the contracting process has long been on the road to obsolescence, with fewer and fewer contracts concluded in each presidential administration. Yet the United States has not stopped making international agreements. Although the Article II treaties are almost at a standstill, the United States has concluded hundreds of binding international agreements each year. These agreements, called ”executive agreements,” are made by the president without submitting them to the Senate or Congress. Congress responded to the increase in executive agreements by establishing a transparency regime that requires that all binding executive agreements be reported to Congress and that important agreements be made public. The main reason for the heavy reliance on executive agreements is that they are much easier to conclude than contracts. The Article II process requires a president to submit a negotiated treaty to the Senate for super-majority approval before the president can ratify and finalize it. In terms of design, it`s a very difficult process. In contrast, the main form of executive agreement, known as the ex-ante executive agreement of Congress, does not require any of these steps.
Instead, Congress authorizes the president in advance to reach agreement, usually in a statute that contains few concrete guidelines. The authorization shall be deemed to constitute full approval of the agreement prior to the President`s negotiations. This means that the president can sign and close the agreement, making it legally binding on the United States before Congress or the public even learns of its existence. This also applies to most other forms of executive agreements, including those based on authorization in a previous agreement and those based solely on the constitutional powers of the president. Congress has sought to limit the practice of entering into secret executive agreements. A subcommittee of the Senate Foreign Affairs Committee learned in 1969 and 1970 that U.S. presidents had negotiated important secret agreements with South Korea, Laos, Thailand, Ethiopia and Spain, and other countries. In response, Congress passed the Case Act of 1972, which required the Secretary of State to submit to Congress within sixty days the text of an ”international agreement other than a treaty” to which the United States is a party.
If the president decides that the publication would endanger national security, he could submit it to the Senate Foreign Relations Committee and the House Foreign Affairs Committee under a secrecy order that can only be rescinded by the president. But presidents, from Nixon to Clinton, ignored or circumvented the law, and Congressional enforcement efforts were largely ineffective. For some time, Congress also often included legislative veto provisions when delegating the power to enter into executive agreements. These provisions required the executive branch to send the negotiated agreement to Congress before it went into effect so that Congress could review the agreement and decide whether it should be rejected by a veto by one or two chambers. But that review ended with the Supreme Court`s 1983 decision in INS v. Chadha,6×6,462 U.S. 919 (1983). in which the Court declared these vetoes unconstitutional.7×7. Id., p. 959.
In response to Chadha, Congress amended many relevant laws to remove legal veto provisions and leave behind only naked delegations.8×8. See Oona A. Hathaway, Presidential Power over International Law: Restoring the Balance, 119 Yale L.J. . . .
