An Executive Agreement Is A Binding Agreement Between
If the president has an executive agreement, what kind of commitment does he impose on the United States? It is equally clear that it can impose international obligations with potentially serious consequences and that such obligations may exist over a longer period.488 The nature of national obligations imposed by executive agreements is not so obvious. Do contracts and executive agreements have the same impact on domestic politics?489 contracts that contradict state law by applying the supremacy clause. While it may be that executive agreements entered into on the basis of congressional authorization or contractual obligation may also be inferred from the supremacy clause, this textual basis for pre-emption is probably not provided for executive agreements based exclusively on the president`s constitutional powers. The Case Zablocki Act of 1972 requires the president to inform the Senate of any executive agreement within 60 days. The powers of the President to enter into such agreements have not been granted. The notification requirement allowed Congress to vote in favor of cancelling an executive agreement or to refuse to fund its implementation.   In the nineteenth century, government practice treated the power to terminate treaties as being shared between the legislative and executive branch.205 Congress often authorized the president206 in 206 or informed him in 207 to inform foreign governments of the termination of the treaty during that period. In rare cases, only the Senate passed a resolution authorizing the President to terminate a contract.208 Presidents regularly followed the approval or instruction of the legislature.209 On other occasions, Congress or the Senate approved the president`s resignation when the executive had already sent a notice of resignation to the foreign government.210 Compare Bradford Clark. Domesticating Sole Executive Agreements, 93 Va. L. Rev.
1573, 1661 (2007) (arguing that the text and genesis of the Constitution support the position that treaties and executive agreements are not interchangeable, and argue that the supremacy clause must be interpreted as generally precluding executive agreements from being the only ones to terminate existing legislation); Laurence H. Tribe, Taking Text and Structure Serious: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1249-67 (1995) (arguing that the treaty clause is the only way for Congress to approve important international agreements); John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional Executive Agreements, 99 moi. L. Rev.
757, 852 (2001) (arguing that treaties are the constitutional form required for congressional approval of an international agreement concerning measures outside the constitutional competences of Congress, including matters relating to human rights, political/military alliances and arms control, but are not necessary to conclude agreements on measures falling within the competence of Congress under Article I of the Constitution, such as.B. International Trade Agreement; with the third restatement, note 1, § 303 n.8 («Once it has been argued that certain agreements can only be concluded in the form of contracts according to the procedure defined by the Constitution. . . . Scientific opinion has rejected this view.»; Henkin, note 22 above, at 217 («Whatever their theoretical advantages, it is now widely accepted that the agreement of the Executive Congress is available for general use, even for general use, and constitutes a complete alternative to a treaty. . . .
Hathaway, note 45 above, at 1244 (asserts that the «weight of scientific opinion» since the 1940s believed that contracts and agreements between Congress and the executive branch were interchangeable); Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 861-96 (1995) (arguing that developments in the World War II era altered the historical understanding of the distribution of power of the Constitution among branches of government in order to make the agreement between Congress and the executive a complete alternative to a treaty. . . .