13.2 Executive Agreements and Congressional-Executive Agreements

Executive agreements and congressional-executive agreements are crucial tools in U.S. foreign policy. These presidential powers, stemming from Article II, allow for quicker international deal-making without Senate advice and consent required for treaties.

The use of these agreements has grown since World War II, sparking debate about their constitutionality and limits. While courts have upheld their validity, questions remain about their legal status and Congress's role in overseeing them.

Executive Agreements vs Treaties

Definition and Key Differences

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• Executive agreements are international agreements made by the President, as the head of state and commander-in-chief, without the advice and consent of the Senate
• Congressional-executive agreements are international agreements approved by a majority vote in both houses of Congress, either before or after the agreement is negotiated by the President
  • Not submitted to the Senate for its advice and consent
• Key difference: executive agreements are made solely by the President, while congressional-executive agreements involve Congress, but not through the treaty process outlined in the Constitution

Historical Use and Prevalence

• Presidents have long used executive agreements to conduct foreign policy
  • Often arguing that they are necessary for the efficient and effective management of foreign affairs
• Historically used for a wide range of purposes (establishing military bases, settling claims, implementing trade policies)
• Use of executive agreements has increased significantly since World War II
  • Presidents relying on them more frequently than treaties

Constitutional Basis of Executive Agreements

Article II Powers

• President's authority to make executive agreements stems from Article II of the Constitution
  • Grants the President broad executive powers, including the power to receive ambassadors and the role of commander-in-chief
• Presidents have interpreted these powers as providing the constitutional basis for entering into executive agreements without Senate consent

Historical Recognition and Debate

• Supreme Court has recognized the validity of executive agreements in several cases (United States v. Belmont (1937), United States v. Pink (1942))
• Despite judicial recognition, the extent of the President's authority to enter into executive agreements remains a matter of debate
  • Some argue that the treaty process outlined in the Constitution should be the primary means of entering into international agreements
  • Others contend that the President's Article II powers provide sufficient authority for executive agreements in many cases

Legal Status of Executive Agreements

Supremacy Clause and Domestic Effects

• Under the Supremacy Clause of the Constitution (Article VI), treaties are considered part of the "supreme law of the land," alongside the Constitution and federal statutes
• Legal status of executive agreements is less clear, as they are not explicitly mentioned in the Constitution
  • However, the Supreme Court has recognized their validity in several cases
• In United States v. Belmont (1937) and United States v. Pink (1942), the Court held that executive agreements, like treaties, supersede conflicting state laws

Limitations and Conflicts with Other Laws

• Despite their recognition by the courts, executive agreements are generally considered subordinate to treaties and federal statutes when there is a direct conflict
• Domestic effects of executive agreements may be limited by:
  • The President's constitutional authority
  • The need for congressional implementation in certain areas (appropriations)
• The precise legal status and effects of executive agreements continue to be a subject of debate and legal analysis

Congressional Role in Executive Agreements

Oversight and Regulation

• While the Constitution does not explicitly grant Congress the power to regulate executive agreements, Congress has several tools to influence and oversee their use:
  • Passing legislation authorizing or approving specific executive agreements (trade agreements), providing them with greater legal and political legitimacy
  • Using its power of the purse to refuse funding for the implementation of executive agreements or attaching conditions to appropriations bills
  • Exercising oversight powers (hearings, investigations) to scrutinize the use of executive agreements and pressure the executive branch to modify or abandon controversial agreements
• Congress has passed legislation, such as the Case-Zablocki Act (1972), requiring the executive branch to report international agreements to Congress within a specific timeframe

Balance of Power and Debate

• Extent of Congress's authority to regulate executive agreements remains a matter of debate
  • Balance of power between the President and Congress in foreign affairs has shifted over time
• Some argue that Congress should play a more active role in overseeing and regulating executive agreements to ensure accountability and prevent the President from overstepping constitutional bounds
• Others contend that the President needs flexibility in conducting foreign affairs and that excessive congressional involvement could hinder the nation's ability to respond to international challenges effectively