Why Do Presidents Use Executive Agreements

In the United States, executive agreements are made exclusively by the President of the United States. They are one of three mechanisms through which the United States makes binding international commitments. Some authors view executive agreements as treaties of international law because they bind both the United States and another sovereign state. However, under U.S. constitutional law, executive agreements are not considered treaties within the meaning of the contractual clause of the U.S. Constitution, which requires the Council and the approval of two-thirds of the Senate to be considered a treaty. At the end of the day, it seems that the president has that power that the legislative and legal branches want or, at the very least, accept. There does not seem to be much to argue about where the president delegates the power to enter into such agreements. It seems that the only source of power comes from past practices and the vesting clause in the Constitution, but to what extent? What raises the questions, why is there not a legislative struggle to limit the power of the president? How far can power go and how limited will the power of the president be? Only time will show the role of the contractual clause that is moving forward. Is it set aside while the executive agreements take control? Or will there always be a middle ground in which both sides will have a place in relations with foreign affairs? Congressional efforts to curb the practice of executive agreements and stem the tide of unilateralism have been largely unsuccessful. The first and most important effort came in 1951, when Senator John Bricker proposed a constitutional amendment to limit the use and impact of executive agreements and treaties within the United States. Bricker Amendment supporters, including the leaders of the American Bar Association, found virtue in the proposal for a variety of reasons.

Some, as Alexander DeConde explained, “have become angry at executive agreements like Yalta`s” and have tried to reduce the president`s unilateralism on foreign policy. Others feared the impact of treaties such as the United Nations Charter, the Genocide Convention and the United Nations draft peace on human rights within the United States. Still others supported them as a useful “isolationist” response to “the internationalism of Franklin Roosevelt and Harry Truman. The presidents advanced four sources of constitutional authority: (1) the duty of the President, as Director General, to represent the nation in foreign affairs; (2) the power to receive ambassadors and other public ministers; (3) the Authority as Commander-in-Chief; and (4) the duty to “ensure that laws are faithfully enforced.” These assertions are particularly permanent, are undoubtedly at odds with the powers of Congress and weigh on credibility. It is entirely possible that, in the context of military hostilities authorized by Congress, the President, in his capacity as Commander-in-Chief, may consider it desirable to conclude a ceasefire agreement with an enemy, when that would be subject to congressional control. It may also be necessary for the president, in the military context, to reach an agreement on the protection of troops or the sending of troops. But it is difficult to justify unilateral executive agreements on the basis of these other assertions. First of all, it was the view of most judges and scholars, that executive agreements, based solely on presidential power, did not become the “law of the land” under the supremacy clause, because these agreements are not “treaties” ratified by the Senate.490 However, the Supreme Court found another basis for compliance with state laws that are anticipated by executive agreements and ultimately relied upon itself on the exercise of the power of the Constitution over the power of external relations within the national government.

This recognition of the preventive scope of the executive agreements was part of the movement to amend the Constitution in the 1950s to limit the president`s powers in this area, but this movement failed.496 The implementation of the agreements