Why And How Executive Agreements Are Made

The U.S. Supreme Court Pink (1942) found that international agreements, which were concluded in law, have the same legal status as treaties and do not require Senate approval. To Reid v. Concealed (1957), the Tribunal, while reaffirming the President`s ability to enter into executive agreements, found that such agreements could not be contrary to existing federal law or the Constitution. One of us (Hathaway) has previously argued that the Article II procedure is outdated and that it is better for the agreements to be put to majority votes in both houses of Congress than to elect a super majority in the Senate. But what is important is that it does not happen. Ex-post agreements between Congress and the executive branch (approved by Congress after negotiations) are extremely rare – even rarer than Article II treaties – and are mainly used for trade agreements. (The agreement proposed by the Trump administration between the United States, Mexico-Canada, which will replace NAFTA, will go through this process.) Instead, almost all agreements between Congress and the executive branch are based on a so-called “ex ante” of legal authorization. These agreements are generally based on laws that were passed many years or even decades before the agreement, and are not subject to meaningful legislative verification or approval. In the United States, executive agreements are binding at the international level when negotiated and concluded under the authority of the President on foreign policy, as commander-in-chief of the armed forces or from a previous congressional record. For example, the President, as Commander-in-Chief, negotiates and concludes Armed Forces Agreements (SOFAs) that govern the treatment and disposition of U.S. forces deployed in other nations. However, the President cannot unilaterally enter into executive agreements on matters that are not in his constitutional jurisdiction.

In such cases, an agreement should take the form of an agreement between Congress and the executive branch or a contract with the Council and the approval of the Senate. [2] Recently, some foreign relations experts have argued that the practice of the international agreement has developed so that some modern executive agreements no longer fit into the three generally accepted categories of executive agreements69. who argue for a new form of executive agreement arguing that it is not necessary to determine a specific authorisation status or constitutional power if the President already has the national power to implement the executive agreement; The agreement does not require any changes to national legislation; 71 Opponents of this proposed new paradigm of the executive agreement argue that it is not compatible with the principles of separation of powers, which they believe require the President to authorize the conclusion of international agreements either by the Constitution, by a ratified treaty or by an act of Congress.