skip navigation
search

CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

The Post–War Years.—Post–war diplomacy of the United States was greatly influenced by the executive agreements entered into at Cairo, Teheran, Yalta, and Potsdam.435 For a period, the formal treaty—the signing of the United Nations Charter and the entry into the multinational defense pacts, like NATO, SEATO, CENTRO, and the like— reestablished itself, but soon the executive agreement, as an adjunct of treaty arrangement or solely through presidential initiative, again became the principal instrument of United States foreign policy, so that it became apparent in the 1960s that the Nation was committed in one way or another to assisting over half the countries of the world protect themselves.436 Congressional disquietitude did not result in anything more substantial than passage of a “sense of the Senate” resolution expressing a desire that “national commitments” be made more solemnly in the future than in the past.437

The Domestic Obligation of Executive Agreements

When the President enters into an executive agreement, what sort of obligation is thereby imposed upon the United States? That international obligations of potentially serious consequences may be imposed is obvious and that such obligations may linger for long periods of time is equally obvious.438 But the question is more directly pointed to the domestic obligations imposed by such agreements; are treaties and executive agreements interchangeable insofar as domestic effect is concerned?439 Executive agreements entered into pursuant to congressional authorization and probably[p.505]through treaty obligations present little doctrinal problem; those arrangements which the President purports to bind the Nation with solely on the basis of his constitutional powers, however, do raise serious questions.

Until recently, it was the view of most judges and scholars that this type of executive agreement did not become the “law of the land” pursuant to the supremacy clause because the treaty format was not adhered to.440 A different view seemed to underlay the Supreme Court decision in B. Altman & Co. v. United States,441 in which it was concluded that a jurisdictional statute reference to “treaty” encompassed an executive agreement. The idea flowered in United States v. Belmont,442 where the Court, in an opinion by Justice Sutherland, following on his Curtiss–Wright443 opinion, gave domestic effect to the Litvinov Agreement. At issue was whether a district court of the United States was correct in dismissing an action by the United States, as assignee of the Soviet Union, for certain moneys which had once been the property of a Russian metal corporation the assets of which had been appropriated by the Soviet government. The lower court had erred, the Court ruled. The President’s act in recognizing the Soviet government, and the accompanying agreements, constituted, said the Justice, an international compact which the President, “as the sole organ” of international relations for the United States, was authorized to enter upon without consulting the Senate. Nor did state laws and policies make any difference in such a situation, for while the supremacy of treaties is established by the Constitution in express terms, yet the same rule holds “in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States.”444

In United States v. Pink,445 decided five years later, the same course of reasoning was reiterated with added emphasis. The question here involved was whether the United States was entitled under the Executive Agreement of 1933 to recover the assets of the New York branch of a Russian insurance company. The company[p.506]argued that the decrees of confiscation of the Soviet Government did not apply to its property in New York and could not consistently with the Constitution of the United States and that of New York. The Court, speaking by Justice Douglas, brushed these arguments aside. An official declaration of the Russian government itself settled the question of the extraterritorial operation of the Russian decree of nationalization and was binding on American courts. The power to remove such obstacles to full recognition as settlement of claims of our nationals was “a modest implied power of the President who is the ‘sole organ of the Federal Government in the field of international relations’. . . . It was the judgment of the political department that full recognition of the Soviet Government required the settlement of outstanding problems including the claims of our nationals. . . . We would usurp the executive function if we held that the decision was not final and conclusive on the courts.

“It is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy. . . . But state law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement. . . . Then, the power of a State to refuse enforcement of rights based on foreign law which runs counter to the public policy of the forum . . . must give way before the superior Federal policy evidenced by a treaty or international compact or agreement. . . .

“The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would ‘imperil the amicable relations between governments and vex the peace of nations.’ . . . It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government has diligently endeavored to establish. . . .

“No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to State laws or State policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitu[p.507]tional sphere, seeks enforcement of its foreign policy in the courts.”446

No Supreme Court decision subsequent to Belmont and Pink is available for consideration.447 Whether the cases in fact turned on the particular fact that the executive agreement in question was incidental to the President’s right to recognize a foreign state, despite the language which equates treaties and executive agreements for purposes of domestic law, cannot be known. Certainly, executive agreements entered into solely on the authority of the President’s constitutional powers are not the law of the land because of the language of the supremacy clause, and the absence of any congressional participation denies them the political requirements they may well need to attain this position. Nonetheless, so long as Belmont and Pink remain unqualified, it must be considered that executive agreements do have a significant status in domestic law.448 This status was another element in the movement for a constitutional amendment in the 1960s to limit the President’s powers in this field, a movement that ultimately failed.449

THE EXECUTIVE ESTABLISHMENT

Office

“An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.”450


Footnotes

435 See A Decade of American Foreign Policy, Basic Documents 1941–1949, S. Doc. No. 123, 81st Congress, 1st sess. (1950), pt. 1.
436 For a congressional attempt to evaluate the extent of such commitments, see United States Security Agreements and Commitments Abroad, Hearings Before a Subcommittee of the Senate Foreign Relations Committee, 91st Congress, 1st sess. (1969), 10 pts.; see also U.S. Commitments to Foreign Powers, Hearings Before the Senate Foreign Relations Committee on S. Res. 151, 90th Congress, 1st sess. (1967).
437 The “National Commitments Resolution,” S. Res. 85, 91st Congress, 1st sess., passed by the Senate June 25, 1969. See also S. Rept. No. 797, 90th Congress, 1st sess. (1967). See the discussion of these years in CRS Study, op. cit., n.262, 169–202.
438 In 1918, Secretary of State Lansing assured the Senate Foreign Relations Committee that the Lansing–Ishii Agreement had no binding force on the United States, that it was simply a declaration of American policy so long as the President and State Department might choose to continue it. 1 W. Willoughby, op. cit., n.294, 547. In fact, it took the Washington Conference of 1921, two formal treaties, and an exchange of notes to eradicate it, while the “Gentlemen’s Agreement” was finally ended after 17 years only by an act of Congress. W. McClure, op. cit., n.393, 97, 100.
439 See E. Byrd, op. cit., n.292, 151–157.
440 E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir., 1919); 1 W. Willoughby, op. cit., n.294, 589. The State Department held the same view. 5 G. Hackworth, Digest of International Law (Washington: 1944), 426.
441 224 U.S. 583 (1912).
442 301 U.S. 324 (1937).
443 United States v. Curtiss–Wright Export Corp., 299 U.S. 304 (1936).
444 Id., 330–332.
445 315 U.S. 203 (1942).
446 Id., 229–234. Chief Justice Stone and Justice Roberts dissented.
447 The decision in Dames & Moore v. Regan, 453 U.S. 654 (1981), is rich in learning on many topics involving executive agreements, but the Court’s conclusion that Congress had either authorized various presidential actions or had long acquiesced in others leaves the case standing for little on our particular issue of this section.
448 But see United States v. Guy W. Capps, Inc., 204 F. 2d 655 (4th Cir., 1953), wherein Chief Judge Parker held that an executive agreement entered into by the President without congressional authorization or ratification could not displace domestic law inconsistent with such agreement. The Supreme Court affirmed on other grounds and declined to consider this matter. 348 U.S. 296 (1955).
449 There were numerous variations in language, but typical was Sec. 3 of S.J. Res. 1, as reported by the Senate Judiciary Committee, 83d Congress, 1st sess. (1953), which provided: “Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.” The limitation relevant on this point was in Sec. 2, which provided: “A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.”
450 United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393 (1868).
Article II -- Table of ContentsPrev | Next