18 Apr When Are Executive Agreements Used
The Senate has reviewed and approved for ratification all but a small number of treaties negotiated by the President and his representatives. In some cases, when Senate officials felt that a treaty did not have enough support to be approved, the Senate simply did not vote on the treaty and it was eventually withdrawn by the president. Since outstanding treaties do not need to be resubmitted at the beginning of each new Congress, they can be reviewed by the Senate Foreign Affairs Committee for an extended period of time. An executive agreement based on a contract has the same validity and effect as the contract itself, provided that it is consistent with the intent, scope and purpose of the parent contract, the same validity and effect as the contract itself and is subject to the same constitutional restrictions. Derived from one of the elements of the “highest law in the land,” it prevails over all inconsistent state laws and follows the usual rule that later favors the instrument in the event of inconsistency with a federal law. A striking example of a treaty-based executive agreement is the traditional compromise, which defines the conditions for submission to judgment or arbitration under a basic convention. Another is found in the hundreds of status-of-forces agreements and other agreements needed to implement the North Atlantic Treaty, the linchpin of U.S. policy in Europe since World War II. It is high time for Congress to take a close look at the process of concluding international agreements. These agreements are essential to the effective functioning of the United States in the world, but they should be concluded in such a way as to enable the American people to understand the commitments made on their behalf. Despite the growth and development of the U.S.
Congress, it did not seriously revise the Case Act regime and never tried to bring administrative rigour into the unification process. It is time for that to change. No executive agreement was signed until 1817, when President James Monroe signed the Rush Bagot Agreement with Britain to limit forces along the Great Lakes. Monroe then questioned the constitutionality of this executive agreement and sought the advice and approval of the Senate. By 1900, only 124 executive treaties had been signed in 111 years, and none of them helped to bind the United States prospectively. The presidents understood that an executive agreement, unlike an Article II treaty, could not bind the successors of a president. For example, President Theodore Roosevelt entered into an executive agreement to assume responsibility for Santo Domingo Customs, but later decided that because the agreement could work prospectively, it needed the approval of the Council and the Senate. In addition to the two issues above, there is broad consensus on the scope and effect of exclusive performance contracts. Like the other two types of executive agreements, they are subject to the same restrictions as those that apply to treaties, they are not limited by the Tenth Amendment and replace all inconsistent state laws.
Executive agreements are often used to circumvent the requirements of national constitutions for treaty ratification. Many nations that are republics with written constitutions have constitutional rules for ratifying treaties. The Organization for Security and Cooperation in Europe is based on executive agreements. Dependence on treaty power has declined since World War II, with presidents increasingly turning to the use of executive agreements as a means of ensuring unilateral control of U.S. foreign relations. When the president acts unilaterally, the agreement is called the “sole executive agreement.” If the president acts with the approval of a simple majority of both houses of Congress, the agreement is called a “legislative-executive agreement.” Presidents have “appropriated” the discretion to decide whether to conclude an international agreement as a treaty, as a single executive agreement or in the form of a legislative-executive agreement. The Speaker`s decision usually depends on political factors, including the likelihood of obtaining Senate approval. Presidents have often chosen to exclude the Senate by concluding controversial and historic international pacts across the Channel from executive agreements, including the Basic Destroyer Agreement with Britain in 1940, the Yalta and Potsdam Agreement of 1945, the Vietnam Peace Agreement of 1973, and the Sinai Agreement of 1975.
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 “any international agreement, other than a treaty, to which the United States is a party. If the president decided that the publication would endanger national security, he could submit it to the Senate Foreign Relations Committee and the House Foreign Affairs Committee as part of a secrecy order that can only be lifted by the president. But presidents, from Nixon to Clinton, ignored or circumvented the law, and Congressional enforcement efforts were largely ineffective. Congressional efforts to curb the practice of executive agreements and stem the tide of unilateralism have been largely unsuccessful. The first and most important attempt came in 1951, when Senator John Bricker proposed a constitutional amendment to limit the use and impact of executive agreements and treaties in the United States.
Supporters of the Bricker Amendment, including leaders of the American Bar Association, found virtue in the proposal for a variety of reasons. Some, as Alexander DeConde explained, have lamented executive deals like those reached in Yalta and tried to curb the president`s unilateralism on foreign policy. Others feared the impact of treaties such as the Charter of the United Nations, the Genocide Convention and the proposed United Nations Covenant on Human Rights in the United States. Still others have argued it as a useful “isolationist” response to “the internationalism of Franklin Roosevelt and Harry Truman. An agreement between Congress and the executive branch is based on a previous or subsequent act of Congress that authorizes the conclusion of the agreement or confers general authority over the executive measures required at the international level to implement the legislation in question. The scope or purpose of the Agreement is the same whether the law of Congress precedes or subsequents the negotiation of the Agreement; The act of Congress often takes the form of an authorization to enter into or implement an agreement that has already been negotiated. In principle, however, the agreement must fall under the joint powers of Congress and the President to have constitutional validity. An agreement that does not fall within the legal jurisdiction of Congress or the President, as the authorities generally agree, would be unconstitutional. On the other hand, as the American Law Institute has commented, “the source of authority to reach an agreement between Congress and the executive branch may even be broader than the sum of the respective powers of Congress and the President,” and “in international affairs, the President and Congress together have all the powers of the United States inherent in its sovereignty and nation, and can therefore reach any international agreement on any issue. Regardless, the vast majority of executive agreements entered into by the United States — for example, the World War II Lend-Lease Agreements and the Trade Expansion Acts of 1934 and 1962 — are of this type. . .