Executive Agreement Definition

The term “executive agreement,” which is not widely used outside the United States but has its equivalents abroad, is understood by the State Department to refer in general to any international agreement that enters into force with respect to the United States without the Council and Senate approval, which is required by the Constitution for treaties. In particular, these are three types of agreements: those concluded within the framework or in accordance with an existing contract; subject to congressional approval or implementation (“Executive Agreements of Congress”); and are taken within the framework and respect of the President`s constitutional powers (“single executive arrangements”). None of these executive agreements are subject to the formal contractual procedure under Article II, Section 2, of Clause 2 of the Constitution. 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. An agreement between Congress and the Executive is based either on an earlier act or on a subsequent act of Congress, which approves the agreement or provides general authority for the executive measures necessary 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 arrives before or after the agreement is negotiated; the act of Congress often takes the form of an authorization to conclude or reach an agreement already negotiated.

However, in principle, the agreement must be governed by the common powers of Congress and the President to have constitutional validity. An agreement outside the legal jurisdiction of Congress or the President, on which the authorities generally agree, would be unconstitutional. On the other hand, as the American Law Institute has pointed out, “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 matters, the President and Congress together have all the powers of the United States inherent in their sovereignty and nationality. , and can therefore conclude any international agreement on any subject. In any case, the vast majority of U.S. executive agreements, in part in the interest of controlling and balancing the president in the conduct of foreign policy- is of this kind. Like its contract-based counterpart, derived from one of the elements of the “supreme law of the land,” the agreement between Congress and the executive branch replaces all the inconsistent laws of the state and follows the usual rule that favors the instrument later in case of contradictions with a federal law. In summary, all three categories of executive agreements have a historical tendency to strong foreign policy leadership. There are only three final points to add.

First, the judgment of using these agreements rather than the contractual alternative is essentially political, more concerned with environmental circumstances than with abstract legal theories. Second, once in force, executive agreements are presumed to be binding on the United States and other parties under international law, in the same measure and in the same way as treaties. Third, the international obligations under these agreements survive any subsequent restrictions or restrictions on domestic law. Second, while it is widely accepted that, under the “executive power” clause, the president has the power to enter into exclusive executive agreements that are not inconsistent with legislation in areas where the primary responsibility lies with Congress, the question arises as to whether the President alone can reach an agreement incompatible with an act of Congress or whether a single executive agreement has replaced previous congressional laws.