Define Executive Agreements
Every day, it seems, the news announces that an executive agreement has been signed. The term has become so common that no one stops to ask, "What is an executive agreement?" It is a granted assumption that everyone knows what it is. An executive agreement may not be what it is presumed to be.
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Definition
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An executive agreement is an agreement between the United States and a foreign government. There are two types of executive agreements; sole executive agreements and legislative executive agreements.
A sole executive agreement, the primary form used, allows the president to exclude congressional branches from the decision in making an international pact. A legislative executive agreement is made when a simple majority vote of both congressional houses agrees with the decision.
An executive agreement is not a treaty, but it can lead to one.
How is a Treaty Different?
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A treaty requires a congressional approval of two-thirds before it can be signed into action. The process of treaty ratification can be a lengthy process and can not always be resolved without several re-examinations. The advice and counsel of both Congress and the Senate is essential to a treaty. The United States is expected to honor and uphold any treaty agreements put into place, so the decisions made before the final signature are crucial.
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Conflicts
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By nature of design, sole executive agreements are at controversy with the United States Constitution. The reasons behind the Constitution were to establish a government that made joint decisions for the people and no one person would be granted the capabilities to make a unilateral decisions on behalf of the country. The architecture of the Constitution does not support the use of executive agreements.
Over a series of years, individual presidents elected to make solitary decisions on behalf of the people and then sought judiciary support for these decisions. The judiciary system agreed with enough early executive agreement that presidents began claiming it as their independent constitutional right.
Oppositions
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As more presidents began taking advantage of sole executive agreements, Congress began to attempt limits on the usage of these agreements. The first aggressive movement to control sole executive agreements came in 1951 from Sen. John W. Bricker, a Republican from Ohio. Senator Bricker proposed a constitutional amendment that would limit the use and effects of sole executive agreements. The amendments, known as the Bricker Amendmen, was supported by American Bar Association leaders.
The Bricker Amendment was approved by the Senate Judiciary Committee in 1953 reaffirming the Constitution's original architecture over treaties. The Bricker Amendment was defeated in 1954, by a 50-42 vote, as a result of President Dwight D. Eisenhower's opposition. Eisenhower stated that the amendment would hamstring presidential ability to conduct foreign policy. Further attempts to limit use of the sole executive agreement have been defeated over time as more presidents take advantage of the self-appointed privilege.
Case Act of 1972
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The Case Act of 1972 came about after a subcommittee of the Senate Foreign Relations Committee discovered that presidents had negotiated significant secret agreements with several countries, including South Korea, Thailand, Ethiopia and Spain. It requires the U.S. secretary of state to submit complete texts of any agreement to Congress within 60 days of its origination. If the president believes the document could compromise national security, the document could be transmitted under an injunction of secrecy.
Legislative Executive Agreements
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Due to the requirement of congressional support, legislative executive agreements are seldom used. Since the first enactments of executive agreements, less than 600 have been activated while there have been more than 1,400 sole executive agreements enacted. There is not the opposition or controversy surrounding legislative executive agreements because the requirements for them closely resemble the requirements for treaties.
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References
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