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Why Would a President Make an Executive Agreement Not a Treaty

With the so-called executive agreements of Congress, Congress has also sometimes enacted laws that approve agreements with other countries. For example, trade agreements, such as the North American Free Trade Agreement (NAFTA), have often been legislated. In contrast, the Senate raised strong objections when President Jimmy Carter appeared to intend to seek legal approval rather than Senate approval (which would have required a two-thirds majority) for the Strategic Arms Limitation Treaty II (SALT II). It is sometimes argued for the essential interchangeability of treaties with so-called congressional executive agreements that Congress enjoys enumerated powers related to foreign affairs, such as the power to regulate trade with foreign nations. But unlike legislation, international agreements establish binding agreements with foreign nations and can lead to entanglements that simple legislation does not create. Similarly, it is wrong for the Court of Justice to allow courts to appoint executive officials as long as there is no “discrepancy” between the functions normally performed by the courts and the performance of their appointing functions. Morrison vs. Olson (1988). It is true that the appointment clause allows “courts” to appoint “subordinate officials”. But just as the authority of the president after the appointment clause must be read in the context of Article II, so the authority of the courts must be read in the context of Article III, which defines their own powers.

There, the judiciary is defined as an “extension to business”. The authority of the courts in matters of appointment is therefore read more naturally as a matter ancillary to their defined powers. As a result, courts may appoint officials who contribute to their own work to adjudicate cases, such as clerks and bailiffs, but not senior managers. Once again, the Supreme Court has replaced a relatively clear line with a dark test that increases the judiciary`s own powers. Dependence on treaty power has declined since World War II, with presidents increasingly turning to the use of executive agreements as a means of ensuring unilateral control of U.S. foreign relations. When the president acts unilaterally, the agreement is called the “sole executive agreement.” If the president acts with the approval of a simple majority of both houses of Congress, the agreement is called a “legislative-executive agreement.” Presidents have “appropriated” the discretion to decide whether to conclude an international agreement as a treaty, as a single executive agreement or in the form of a legislative-executive agreement. The Speaker`s decision usually depends on political factors, including the likelihood of obtaining Senate approval. Presidents have often chosen to exclude the Senate by concluding controversial and historic international pacts across the Channel from executive agreements, including the Basic Destroyer Agreement with Britain in 1940, the Yalta and Potsdam Agreement of 1945, the Vietnam Peace Agreement of 1973, and the Sinai Agreement of 1975. The U.S. Constitution does not explicitly give the president the power to enter into executive agreements. However, it may be authorized to do so by Congress, or it may do so on the basis of the authority conferred on it to conduct foreign relations.

Despite questions about the constitutionality of executive treaties, the Supreme Court ruled in 1937 that they had the same power as treaties. Since executive agreements are concluded by order of the outgoing president, they are not necessarily binding on his successors. The Executive Convention achieved its modern development as an instrument of foreign policy under President Franklin D. Roosevelt sometimes threatened to replace conventional power, not formally, but in fact, as a determining element in the field of foreign policy. The first major use of the Executive Treaty instrument by the President took the form of an exchange of notes with Maxim M on 16 November 1933. Litvinov, the USSR`s foreign commissioner, extended American recognition to the Soviet Union and made certain commitments from each official.14 FootnoteId. at 140–44. U.S. post-war diplomacy was strongly influenced by the executive agreements reached in Cairo, Tehran, Yalta, and Potsdam.18 FootnoteSee A Decade of American Foreign Policy, Background Papers 1941-1949, p. Doc.

No. 123, 81st Congress, 1st Sess. (1950), part 1. For a time, the formal treaty – the signing of the UN Charter and adherence to multinational defense pacts such as NATO, SEATO, CENTRO and others – was reinstated, but soon the Executive Agreement, as a complement to the Treaty Agreement or solely at the initiative of the President, again became the main instrument of U.S. foreign policy. so that, in the 1960s, it turned out that the nation was somehow committed to helping more than half of the world`s countries protect themselves.19 For an attempt by Congress to assess the extent of such commitments, see U.S. Security Agreements and Commitments Abroad: hearings before a subcommittee of the Senate Foreign Relations Committee, 91st Congress, 1st Sess. (1969), 10 points; see also U.S.

Commitments to Foreign Powers: Hearings on Senate Resolution 151 before the Senate Foreign Relations Committee, 90th Congress, 1st Sess. (1967). The congressional turmoil resulted in nothing more substantial than the adoption of a resolution entitled “Sense of the Senate”,” which expressed the wish that “national commitments” be made more solemnly in the future than in the past.20 FootnoteThe “Resolution on National Commitments,” S. Res. 85, 91st Congress, 1st Sess., adopted by the Senate on June 25, 1969. See also S. Rep. No.

797, 90th Congress, 1st Sess. (1967). See the discussion of those years in the CRS study, above at 169-202. President Dwight D. Eisenhower rejected the amendment on the grounds that it would hinder the presidency in the conduct of foreign policy. In a letter to his brother Edgar, a lawyer who supported the resolution, Eisenhower said it would “paralyze executive power to the point where we become powerless in world politics.” The Eisenhower administration was well aware that most Republicans welcomed the proposal and therefore their opposition was carefully measured. .

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