The Use Of Executive Agreement

The Bricker Amendment, approved by the Senate Justice Committee in June 1953, reaffirmed the predominance of the Constitution over treaties; the necessary implementing provisions „that would be valid without a contract“ before a contract can be entered into in the United States; and gave Congress the power to oversee all executive agreements. In foreign relations, U.S. presidents have exercised increasing independence through executive agreements. The U.S. Constitution stipulates that two-thirds of the Senate must ratify a proposed treaty, but does not provide for other forms of international agreements. In 1942, the Supreme Court upheld the legality of executive agreements, and since World War II they have surpassed treaties by more than ten to one. Are presidents trampling on the Constitution or are they trying to tighten the diplomatic process? The treaty clause – Article II, Section 2, Clause 2 of the Constitution – gives the President the power to conclude treaties by acting with the „Council and Approval“ of the Senate. 21 Many scientists have concluded that the Framers intended that „deliberation“ and „consent“ were separate aspects of the arbitration process.22 Following this interpretation, the „deliberation“ element required the Speaker to consult with the Senate during contract negotiations before he had to obtain final „approval“ from the Senate. 23 President George Washington seems to have understood that the Senate had such an advisory role,24 but he and other early presidents quickly refused to seek the Senate`s advice during the negotiation process25 In modern treaty practice, the executive generally assumes responsibility for negotiations, and the Supreme Court has stated in diktat, that the president`s power to conduct contract negotiations is exclusive.26 Controversy surrounds the president`s legal power, executive agreements. The practice of unilateral presidential agreements with foreign nations runs counter to the constitutional emphasis on joint decision-making and the Framers` understanding of the scope and extent of contractual power, which Hamilton described in a letter under the pseudonym „Camillus“ as „competent for all provisions that might require the requirements of national affairs“; competent for the establishment of contracts of alliance, commercial contracts, peace treaties and any other type of convention, common among nations.

And that is why it has been carefully guarded; The cooperation of two-thirds of the Senate with the President, who is required to enter into any contract. The constitutional text does not mention any executive agreement. Moreover, they have not referred to it either in the Constitutional Convention or in the State`s ratification conventions. The Federalist Papers are also silent about this. There is therefore no support for the use of executive agreements in the architecture of the Constitution. But their use has flourished; Presidents claim independent constitutional power to make it, and the judiciary has maintained such claims of presidential authority. . . .