Definition of an Executive Agreement
An executive agreement is an agreement signed between the president of the United States and the head of a foreign country. An executive agreement is differentiated from a treaty by its requirements for congressional approval.
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Basis of Power
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Although the U.S. Constitution does not refer to executive agreements, the Supreme Court has upheld the president's power to make such agreements, finding that the president has more power in the area of foreign affairs than that explicitly granted to him by the Constitution. Furthermore, constitutional law hypothesizes that Article I, Section 10 of the Constitution seems to implicitly recognize the possibility of international agreements that are not treaties.
Types
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A sole executive agreement is an executive agreement in which the president acts on his own, without Congressional ratification. By contrast, in a legislative-executive agreement, the president acts with the approval of a simple majority (more than 50 percent) of both the House of Representatives and the Senate. Both types of executive agreement will still usually require the tacit approval of Congress, since Congress must vote the funds for the agreement's implementation.
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Treaties Differentiated
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Treaties are similar to executive agreements, in that both are agreements made between the executive and foreign heads of state. However, a treaty must receive the consent of 2/3 of those Senators present for the vote. Because of the required Senate approval, treaties carry great weight; a treaty will prevail over any state action or law in conflict, as well as any conflicting federal law enacted before the treaty. Executive agreements, by contrast, can be made without the approval of either house of Congress.
Force
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Executive agreements will be subordinated to treaties, but will prevail over state law. However, an executive agreement authorized by a treaty will carry the same weight as the treaty itself. Because sole executive agreements are not ratified by Congress, their weight is slightly more questionable than that of legislative-executive agreements; the extent to which a sole executive agreement can trump an Act of Congress is currently an unsettled area of the law.
Case Act
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The Case Act of 1972 was enacted in response to concerns about the president's power to enter into secret executive agreements. The act stipulates that if the executive enters into any international agreement that's not a treaty, the secretary of state must send the agreement's text to Congress within 60 days of the agreement's execution.
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References
- "Constitutional Law: Cases, Materials and Problems"; Weaver, Russell L. and Steven I. Friedland and Catherine Hancock and Wendy B. Scott and Donald E. Lively; Aspen Publishers; 2006.
- United States Constitution, Articles I and II
- C-Span.Congressional Glossary: Executive Agreement
- JRank: Executive Agreements
Resources
- Photo Credit shaking hands image by Sean Gladwell from Fotolia.com
