executive agreement

n.
An agreement made between the executive branch of the U.S. government and a foreign government without ratification by the Senate.

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Under the Constitution, treaties with other countries require consent of two‐thirds of the Senate. The framers clearly intended joint action of the national executive and the representatives of states in Congress to make binding international obligations.

Executive agreements, unmentioned in the text, are practical alternatives made under presidential authority. They are so ubiquitous in American foreign relations—and sometimes so controversial—that one should distinguish various forms. The vast bulk have some form of legislative approval by statute, treaty, or joint resolution of Congress. For example, the North American and general trade agreements of 1993–1994 were approved by joint resolution. If the subject is within Congress's broad powers, the Supreme Court accepts the delegation of legislative power and the Senate bypass.

Starting early with postal relations, executive agreements cover many complex subjects such as copyrights, foreign aid, and trade. Big disputes mostly concern agreements made by presidents acting independently as national negotiator and commander in chief. After a modest debut with President James Monroe's agreement to limit arms on the Great Lakes in 1817, a convenient device for temporary or detailed arrangements developed into an instrument for major foreign policies. Boxer protocols and other agreements recognized special interests in China, for example, and armistices ended fighting in the Spanish American War and World War I.

President Franklin D. “Roosevelt converted executive agreements into primary instruments of foreign relations. He approved the Litvinov Agreement recognizing the Soviet Union in 1933, and the destroyer bases deal of 1940. During World War II, Roosevelt and Truman made secret agreements with allies at Cairo, Yalta, and Potsdam affecting most of the world. Postwar alliances and a global economy spawned thousands of executive agreements, more than 2,800 in the Reagan administration alone.

Military agreements of the commander in chief, such as armistices, raise few problems of principle. Secret arrangements committing troops and treasure, such as Yalta or the bombing of Cambodia and Laos, aroused great hostility. Constitutional challenges center on the domestic effects and proper scope of solo executive agreements. The Supreme Court has never flatly equated executive agreements with treaties as internal law, but United States v. Belmont (1937) and United States v. Pink (1942) rejected arguments that Congress must authorize or approve executive agreements internally. The Court upheld the Litvinov assignment of Russian assets in the United States as an incident of national supremacy, presidential authority to recognize foreign governments, and “a modest implied power” of the country's “sole organ” in international relations (United States v. Pink, p. 229). Thus, presidents may override conflicting state laws without consulting senators, traditional guardians of state interests. Whether executive agreements, like treaties, supersede existing federal statutes is doubtful but unsettled.

The issue of scope is whether the Constitution limits the subject matter of executive agreements. Given the framers' design of shared powers to check foreign adventures, critics charge that making major policies by executive agreement rather than by treaty dangerously evades constitutional controls by changing labels. On the other side, given practical needs for speed, secrecy, and concentrated decision in foreign affairs, not to mention the difficulties and delays of consultation exposed by the League of Nations debacle, defenders claim that executive agreements are essential to modern statecraft.

Political practice largely determines these issues. Justices usually defer to political branches in matters of foreign affairs (Dames & Moore v. Regan, 1981). A major attempt to require congressional implementation of executive agreements as internal law collapsed in 1954 when a substitute for the proposed Bricker Amendment failed Senate passage by one vote (see Constitutional Amending Process). The sheer volume of agreements involved, unclear criteria for appropriate uses of treaties and agreements, and realization that Congress by legislation can repeal treaties domestically, all affected the result. The Supreme Court's decision in Reid v. Covert (1957) also quieted fears by voiding an executive agreement that permitted criminal trials of civilian dependents of American personnel in military courts abroad. Often cited is Justice Hugo Black's ringing plurality opinion that all agreements are subordinate to the Constitution and the Bill of Rights.

Secret arrangements for military bases in Spain and in the Vietnam War aroused other attempts to limit executive agreements in the 1970s. The Case Act (1972) requires the secretary of state to transmit to Congress any international agreement made other than by treaty. But virtually every subsequent presidency has circumvented this law. Covert agreements regarding South Vietnam, Sinai, and disarmament, for instance, were labeled as “arrangements” or “accords,” thus requiring no report. The Iran Contra scandal illustrates other hazards of compliance. Executive agreements are striking examples of expanding presidential power, reminders that form follows function in constitutional development.

See also Foreign Affairs and Foreign Policy; Treaties and Treaty Power.

Bibliography

• Louis Fisher, Constitutional Conflicts between Congress and the President, 4th ed., (1997)
• Louis Henkin, Foreign Affairs and the United States Constitution, 2d ed. (1996)

— J. Woodford Howard, Jr.

Executive agreements enable the US President to make international arrangements without senatorial participation, as is constitutionally required for treaties. Presidents may thus circumvent the Constitution by calling treaties executive agreements.

A pact or understanding with a foreign government reached by the President or a Presidential agent is called an executive agreement. The agreement may be written or oral. Unlike a treaty, it does not require the advice and consent of the Senate.

Although executive agreements are not mentioned in the Constitution, Presidents claim the power to enter into such agreements based on their executive power, their duty to receive ambassadors from other nations, their power as commander in chief, and their duty to take care that the laws be faithfully executed.

The first known executive agreement involved a 1792 postal arrangement with Canada, negotiated by the American and Canadian postmasters general. The vast majority have involved agreements between departments of government and their foreign counterparts in agriculture, health, trade, communications, the environment, science, and defense.

Executive agreements have been crucial in foreign affairs. There are many examples: the Bagot-Rush agreement to limit American and British naval forces on the Great Lakes (1817); a coalition between the United States and several European powers to crush the Boxer rebellion in China (1900); the so-called Gentlemen's Agreement to regulate Japanese immigration to the United States (1905); and an armistice with Imperial Germany (1918). Agreements have been made to exchange U.S. destroyers for British naval bases (1940); to end the fighting in Germany and establish the status of Berlin (1945); to end the Korean War (1953); to end U.S. involvement in the Vietnam War (1973); to implement a strategic arms limitation agreement with the Soviet Union (1979); to secure the release of U.S. diplomats from Iran (1981); and to forge a coalition to defeat Iraqi aggression against Kuwait (1990).

There are nearly 10 times as many executive agreements as there are treaties; on average, only 30 treaties but more than 250 agreements have been concluded each year since the 1960s. The majority of the executive agreements have been authorized by Congress in advance or ratified by Congress after being put into effect, and most require subsequent laws by Congress to be implemented.

Only about 5 percent of executive agreements are negotiated and implemented without any congressional role. Some of these are major American commitments to the defense of other nations or agreements to lease military bases in other countries, pacts that in effect create military alliances without any congressional participation.

In 1969 Congress passed the National Commitments Resolution, which stated that a national commitment of the United States could not be made by executive agreement but only by “affirmative action taken by the executive and legislative branches of the U.S. Government by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment.”

Presidents do not accept this interpretation of a national commitment, arguing that executive agreements are binding obligations of the United States. The courts have imposed some limits on executive agreements: they cannot be inconsistent with prior congressional legislation; agreements that affect prior laws passed by Congress must be implemented by new congressional legislation; and they cannot impair the constitutional rights of American citizens.

Some executive agreements have been kept secret, especially those involving the Department of Defense and intelligence agencies. In 1972 Congress passed the Case Act, which provided that the secretary of state must transmit the text of any executive agreement to Congress within 60 days. Secret agreements must be submitted to the House Foreign Affairs and Senate Foreign Relations Committees, which keep them secret unless released from that obligation by the President. In 1977 the time limit under the Case Act was reduced by Congress to 20 days.

See also Treaty powers

Sources

• Louis Fisher, The Constitution between Friends (New York: St. Martin's, 1978)

Executive Agreements, a term signifying international agreements concluded by the president, as distinguished from treaties, which can be ratified by the president only with consent of the Senate. In international usage they are often called "treaties in simplified form," whether embodied in one text or in an exchange of notes. Executive agreements are as effective as formal treaties in conferring rights and obligations under international law. The Constitution mentions them obliquely as "agreements" or "compacts," without specifying limitations as to procedure, form, or substance. Early suppositions that they bind only the administration that concludes them, or that their use must be confined to routine matters, have been negated by practice. Although executive agreements are usually administrative agreements that implement policies already determined, there are many that have determined significant policies—for example, the Rush-Bagot Agreement (1817) limiting armament on the Great Lakes; the exchange of notes enunciating the Open Door policy in China (1899, 1900); the Boxer Protocol (1901); the Gentlemen's Agreement (1907) on Japanese immigration; the Lansing-Ishii Agreement (1917) on Japanese interests in China; the armistices after the Revolution, the Spanish-American War, and the two world wars; the Atlantic Charter (1941); and the Moscow, Teheran, Yalta, and Potsdam agreements during World War II (1943, 1945).

Although concluded by the president, most executive agreements have congressional authorization or approval. They can be classified according to whether they are (1) based on prior legislation; (2) implemented by subsequent legislation; (3) based on prior treaties; (4) based on prior treaties and implemented by legislation; (5) made under the president's constitutional powers; or (6) based in part on presidential powers and in part on legislation or treaty. Because of the rapid escalation of their use, critics contend that executive agreements have been employed instead of treaties to avoid submission to the Senate. Their increased use is mainly a response to expanding international administrative requirements in implementing policies otherwise determined with respect to international mail, civil aviation, mutual aid settlements and surplus property disposal ending wartime aid to allies, trade and tariff agreements, economic development, military assistance, cooperative agricultural and educational programs, international arbitration, and international telecommunications.

The debate over the president's executive authority in foreign affairs intensified in the late twentieth century, particularly in regard to the use of American military forces abroad. The controversial military intervention in Vietnam in the 1960s and 1970s inspired Congress to take a more active role in foreign affairs, a step that increased friction with the White House. For example, during the 1980s the Reagan administration defied Congress by covertly sending aid to the Nicaraguan Contras, a policy later exposed in the Iran-Contra scandal. In the early 1990s the Bush administration committed American forces to the defense of Saudi Arabia without submitting the matter to a vote in Congress. Only on the eve of war with Iraq in January 1991 did the administration seek official congressional approval for the use of force. The ambiguous nature of presidential and congressional responsibilities in international affairs seems likely to remain a source of debate and controversy in American foreign policy.

Bibliography

DeConde, Alexander. Presidential Machismo: Executive Authority, Military Intervention, and Foreign Relations. Boston: Northeastern University Press, 2000.

Margolis, Lawrence. Executive Agreements and Presidential Power in Foreign Policy. New York: Praeger, 1985.

Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton, N.J.: Princeton University Press, 2001.

—Anthony Gaughan

An executive agreement is a name for an international agreement, or pact, that is made between the president of the United States and the head of another foreign state. While most executive agreements are a natural extension of legislation passed by Congress or out of Senate-approved treaties, an executive agreement differs from a treaty in that it doesn’t require the consent of the Senate. In two landmark cases of the 1930s and 1940s, the Supreme Court held that executive agreements are as binding as treaties and are a part of the supreme law of the land.

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For a list of words related to executive agreement, see:

• Acts, Powers, Conditions, and Procedures - executive agreement: pact between U.S. President and head of foreign state not requiring senatorial approval

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