In part because the enumerated powers of Congress and the President have been interpreted broadly, most of the agreements proposed as treaties could also have been proposed as executive agreements of Congress. For this reason, the U.S. government has often chosen to use executive agreements of Congress instead of treaties for controversial agreements that are unlikely to achieve the required super-majority in the Senate. Examples of controversial proposals that take the form of agreements between Congress and the executive include the North American Free Trade Agreement (NAFTA) of 1992 and the agreement that made the United States a member of the World Trade Organization (WTO) in 1995. Executive Agreement, an agreement between the United States and a foreign government that is less formal than a treaty and is not subject to the constitutional requirement to be ratified by two-thirds of the U.S. Senate. A remarkable expansion of the president`s power in this area first manifested itself in President McKinley`s administration. At the beginning of the war with Spain, the president proclaimed that the United States would be bound for the duration of the last three principles of the Paris Declaration, a course that, as Professor Wright notes, “would undoubtedly go a long way in establishing these three principles as binding international law for the United States in future wars.” 473 hostilities with Spain ended in August 1898 with an armistice, the terms of which largely determined the subsequent peace treaty474 as well as the armistice of 11 November 1918 largely determined the conditions of the final peace with Germany in 1918. It was also President McKinley who, in 1900, relying solely on his authority as commander-in-chief, provided a land force of 5,000 men and a naval force to work with similar contingents from other powers to save the legations in Beijing from the Boxers; a year later, still without consulting Congress or the Senate, he accepted the Boxer Compensation Protocol between China and the intervening powers on behalf of the United States.475 Willoughby comments approvingly on the Beijing Protocol, approvingly quoting the following remark: “This case is interesting because it shows how the force of circumstances forced us to adopt European practice with reference to an international agreement. which, in addition to the question of compensation, was almost exclusively political in nature. According to constitutional practice in Europe, purely political treaties are usually concluded solely by the executive. However, President McKinley strongly justified the situation in China by not submitting the minutes to the Senate. Beijing`s isolation, jealousy among allies, and the Chinese government`s shifting avoidance tactics would have made it virtually impossible to reach a deal on the ground.
476 executive agreements are often used to circumvent the requirements of national constitutions for the ratification of treaties. 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. The Case-Zablocki Act of 1972 requires the President to notify the Senate within 60 days of the conclusion of an executive agreement. The Powers of the President to conclude such agreements have not been limited. The notification requirement allowed Congress to vote on cancelling an executive agreement or refusing to fund its implementation.   U.S. post-war diplomacy was strongly influenced by the executive agreements reached in Cairo, Tehran, Yalta, and Potsdam.18 FootnoteSee A Decade of American Foreign Policy, Basic Documents 1941-1949, p. Doc. No.
123, 81st Congress, 1st Sess. (1950), part 1. For a time, the formal treaty – the signing of the UN Charter and adherence to multinational defense pacts such as NATO, SEATO, CENTRO and others – was reinstated, but soon the Executive Agreement, as a complement to the Treaty Agreement or solely at the initiative of the President, again became the main instrument of U.S. foreign policy. so that, in the 1960s, it turned out that the nation was somehow committed to helping more than half of the world`s countries protect themselves.19 For an attempt by Congress to assess the extent of such commitments, see U.S. Security Agreements and Commitments Abroad: hearings before a subcommittee of the Senate Foreign Relations Committee, 91st Congress, 1st Sess. (1969), 10 points; see also U.S. Commitments to Foreign Powers: Hearings on Senate Resolution 151 before the Senate Foreign Relations Committee, 90th Congress, 1st Sess.
(1967). The congressional turmoil resulted in nothing more substantial than the adoption of a resolution entitled “Sense of the Senate”,” which expressed the wish that “national commitments” be made more solemnly in the future than in the past.20 FootnoteThe “Resolution on National Commitments,” S. Res. 85, 91st Congress, 1st Sess., adopted by the Senate on June 25, 1969. See also S. Rep. No. 797, 90th Congress, 1st Sess.
(1967). See the discussion of those years in the CRS study, above at 169-202. 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. The U.S. Constitution provides that the President “has the power to enter into treaties by and with the counsel and consent of the Senate, provided that two-thirds of the senators present agree” (Article II, Section 2).
Treaties are binding agreements between nations and are part of international law. Treaties involving the United States also have the power of federal legislation and are part of what the Constitution calls “the highest law in the land.” One of the earliest examples of executive treaty making was the agreement by which President Monroe defined the limits of armament on the Great Lakes in 1817. The agreement was reached through an exchange of notes, which was submitted to the Senate nearly a year later with the question of whether this was within the power of the speaker or whether the Senate`s advice and approval was necessary. The Senate approved the agreement by the required two-thirds majority, and it was immediately promulgated by the President without any formal exchange of ratifications.469 Of a related type, and thanks to the President`s status as Commander-in-Chief, there was a series of agreements concluded with Mexico between 1882 and 1896, giving each country the right to: 470 Commenting on such an agreement, the court noted with some uncertainty: “Although no law of Congress authorizes the executive branch to authorize the introduction of foreign troops, the power to grant such authorization without the consent of the legislature was likely assumed by the authority of the President as Commander-in-Chief of the United States Military and Naval Forces. However, it is doubtful whether such a power can be extended to the arrest of deserters [of foreign ships] in the absence of such positive legislation. 471 Gray J. and three other judges held that such an action by the president should be based on an explicit treaty or law.472 Congressional Executive Agreements, a binding agreement between the United States and a foreign country that is easier to implement than a formal, but technically more limited, treaty. Bradley began with an overview of the various legal mechanisms used to include the United States in international treaties, including: Article II treaties pursued with the approval of the Council and the Senate; contractual implementation agreements approved by other international agreements; Agreements between Congress and the executive branch approved by law ex ante or ex post; and exclusive executive arrangements made by the President under his own constitutional authority. He then described the current state of the legal framework that Congress has created to promote transparency in the use of these agreements.
A number of laws require the online publication of all such international agreements within 180 days of their entry into force, but contain various fallout and do not require an explanation from the legal authority under which they were prosecuted. .