The term “executive agreement,” which is not widely used outside the United States but has its equivalents abroad, is understood by the State Department as generally referring to any international agreement adopted with respect to the United States without the approval of the Council and the Senate that is constitutionally required for treaties. In particular, it is considered to refer to three types of agreements: agreements concluded on the basis of or in accordance with an existing contract; those that are subject to the approval or implementation of the Congress (“Congress-Executive Agreements”); and those made within the framework of and in accordance with the constitutional powers of the President (“Executive Agreements Only”). None of these executive agreements shall be subject to the formal contractual process provided for in Article II, Section 2, Clause 2 of the Constitution. In the United States, executive agreements are internationally binding when negotiated and concluded under the authority of the president in foreign policy, as commander-in-chief of the armed forces, or based on an earlier act of Congress. For example, the president negotiates as commander-in-chief and includes status-of-forces agreements (SOAFs) that govern the treatment and disposition of U.S. forces stationed in other countries. However, the President cannot unilaterally reach executive agreements on matters that do not fall within his constitutional powers. In such cases, there should be an agreement in the form of an executive agreement of Congress or a treaty with the advice and consent of the Senate. [2] An executive agreement[1] is an agreement between the heads of government of two or more nations that has not been ratified by the legislature because the treaties are ratified. Executive agreements are considered politically binding to distinguish them from legally binding treaties. In summary, the three categories of executive agreements reflect a historic trend towards strong foreign policy leadership.
Only three last points need to be added. First, the judgment to resort to these agreements rather than the conventional alternative is essentially political, influenced more by the circumstances surrounding it than by abstract legal theories. Second, once executive agreements enter into force, they are presumed to bind the United States and other parties under international law to the same extent and in the same manner as treaties. Third, international commitments under these agreements will not survive any subsequent limitation or limitation of national law. In United States v. Pink (1942), the U.S. Supreme Court ruled that valid international executive treaties have the same legal status as treaties and do not require Senate approval. Also in Reid v. Covert (1957), he reaffirmed the president`s ability to enter into executive agreements, but noted that such agreements cannot conflict with existing federal law or the Constitution.
As far as we are concerned, Congress has no way of changing an executive agreement. An agreement between Congress and the executive branch is based on a previous or subsequent act of Congress authorizing the conclusion of the agreement or conferring general authority for 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 act of congress occurs before or after the negotiation of the agreement; The law of Congress often takes the form of an authorization to enter into or execute an agreement that has already been negotiated, but in principle, the agreement must be within the joint powers of Congress and the President to obtain 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 conclude any international agreement on any subject”. 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, in part for the purpose of controlling and balancing the president in the conduct of foreign policy. Like its conventional counterpart, derived from one of the elements of the “supreme law of the land,” the agreement between Congress and the executive branch replaces all inconsistent state laws and follows the usual rule that later favors the instrument in case of inconsistency with a federal law. Executive agreements – that is, international agreements concluded between heads of state or their representatives, usually without the authorization of Parliament – are not expressly authorized anywhere in the Constitution. The Constitution remains silent on the international agreement unless it gives the President, in cooperation with the Senate, the power to conclude and conclude treaties.
Nevertheless, the long-held principle that the ability of the United States to negotiate and conclude international agreements is not exhausted by the treaty power. This principle has been recognized several times in the current direction of U.S. foreign affairs since the early days of the Republic. .