CRS Annotated Constitution

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A regular staple of each Term’s docket of the Court is one or two cases calling for an interpretation of the rights of Native Americans under some treaty arrangement vis–a-vis the Federal Government or the States. Thus, though no treaties have been negotiated for decades and none presumably ever will again, litigation concerning old treaties seemingly will go on.


The capacity of the United States to enter into agreements with other nations is not exhausted in the treaty–making power. The Constitution recognizes a distinction between “treaties” and “agreements” or “compacts” but does not indicate what the difference is.388 The differences, which once may have been clearer, have been seriously blurred in practice within recent decades. Once a stepchild in the family in which treaties were the preferred offspring, the executive agreement has surpassed in number and perhaps in international influence the treaty formally signed, submitted for ratification to the Senate, and proclaimed upon ratification.

During the first half–century of its independence, the United States was party to sixty treaties but to only twenty–seven published executive agreements. By the beginning of World War II, there had been concluded approximately 800 treaties and 1,200 executive agreements. In the period 1940–1989, the Nation entered into 759 treaties and into 13,016 published executive agreements. Cumulatively, in 1989, the United states was a party to 890 treaties and 5,117 executive agreements. To phrase it comparatively, in the first 50 years of its history, the United States concluded twice[p.495]as many treaties as executive agreements. In the 50–year period from 1839 to 1889, a few more executive agreements than treaties were entered into. From 1889 to 1939, almost twice as many executive agreements as treaties were concluded. In the period since 1939, executive agreements have comprised more than 90% of the international agreements concluded.389

One must, of course, interpret the raw figures carefully. Only a very small minority of all the executive agreements entered into were based solely on the powers of the President as Commander–in–Chief and organ of foreign relations; the remainder were authorized in advance by Congress by statute or by treaty provisions ratified by the Senate.390 Thus, consideration of the constitutional significance of executive agreements must begin with a differentiation among the kinds of agreements which are classed under this single heading.391

Executive Agreements by Authorization of Congress

Congress early authorized the entry into negotiation and agreement of officers of the executive branch with foreign governments, authorizing the borrowing of money from foreign countries392 and appropriating money to pay off the government of Al[p.496]giers to prevent pirate attacks on United States shipping.393 Perhaps the first formal authorization in advance of an executive agreement was enactment of a statute that permitted the Postmaster General to “make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post offices.”394 Congress has also approved, usually by resolution, other executive agreements, such as the annexing of Texas and Hawaii and the acquisition of Samoa.395 A prolific source of executive agreements has been the authorization of reciprocal arrangements between the United States and other countries for the securing of protection for patents, copyrights, and trademarks.396

Reciprocal Trade Agreements.—But the most copious source of executive agreements has been legislation which provided authority for the entering into of reciprocal trade agreements with other nations.397 Such agreements in the form of treaties providing for the reciprocal reduction of duties subject to implementation by Congress were frequently entered into,398 but beginning with the Tariff Act of 1890399 Congress began to insert provisions authorizing the Executive to bargain over reciprocity with no necessity of subsequent legislative action. The authority was widened in successive acts.400 Then, in the Reciprocal Trade Agreements Act of 1934,401 Congress authorized the President to enter into agreements with other nations for reductions of tariffs and other impediments to international trade and to put the reductions into effect through proclamation.402

The Constitutionality of Trade Agreements.—In Field v. Clark,403 this type of legislation was sustained against the objection that it attempted an unconstitutional delegation “of both legis[p.497]lative and treaty–making powers.” The Court met the first objection with an extensive review of similar legislation from the inauguration of government under the Constitution. The second objection it met with a curt rejection: “What has been said is equally applicable to the objection that the third section of the act invests the President with treaty–making power. The Court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty–making power to the President.”404 Although two Justices disagreed, the question has never been revived. However, in B. Altman & Co. v. United States,405 decided twenty years later, a collateral question was passed upon. This was whether an act of Congress which gave the federal circuit courts of appeal jurisdiction of cases in which “the validity or construction of any treaty . . . was drawn in question” embraced a case involving a trade agreement which had been made under the sanction of Tariff Act of 1897. Said the Court: “While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, Sec. 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless, it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court.”406

The Lend–Lease Act.—The most extensive delegation of authority ever made by Congress to the President to enter into executive agreements occurred within the field of the cognate powers of the two departments, the field of foreign relations, and took place at a time when war appeared to be in the offing and was in fact only a few months away. The legislation referred to is the Lend–[p.498]Lease Act of March 11, 1941,407 by which the President was empowered for something over two years—and subsequently for additional periods whenever he deemed it in the interest of the national defense to do so— to authorize “the Secretary of War, the Secretary of the Navy, or the head of any other department or agency of the Government,” to manufacture in the government arsenals, factories, and shipyards, or “otherwise procure,” to the extent that available funds made possible, “defense articles”—later amended to include foodstuffs and industrial products—and “sell, transfer title to, exchange, lease, lend, or otherwise dispose of,” the same to the “government of any country whose defense the President deems vital to the defense of the United States,” and on any terms that he “deems satisfactory.” Under this authorization the United States entered into Mutual Aid Agreements whereby the Government furnished its allies in World War II forty billions of dollars worth of munitions of war and other supplies.


388 Compare Article II, Sec. 2, cl. 2, and Article VI, cl. 2, with Article I, 10, cls. 1 and 3. Cf. Holmes v. Jennison, 14 Pet. (39 U.S.) 540, 570–572 (1840). And note the discussion in Weinberger v. Rossi, 456 U.S. 25, 28–32 (1982).
389 CRS Study, op. cit., n.262, xxxiv–xxxv, 13–16. Not all such agreements, of course, are published, either because of national– security/secrecy considerations or because the subject matter is trivial. In a 1953 hearing exchange, Secretary of State Dulles estimated that about 10,000 executive agreements had been entered into in connection with the NATO treaty. “Every time we open a new privy, we have to have an executive agreement.” Hearing on S.J. Res. 1 and S.J. Res. 43, Before a Subcommittee of the Senate Judiciary Committee, 83d Congress, 1st sess. (1953), 877.
390 One authority concluded that of the executive agreements entered into between 1938 and 1957, only 5.9 percent were based exclusively on the President’s constitutional authority. McLaughlin, The Scope of the Treaty Power in the United States—II, 43 L. Rev.651,721 (1959). Another, somewhat overlapping study found that in the period 1946–1972, 88.3% of executive agreements were based at least in part on statutory authority; 6.2% were based on treaties, and 5.5% were based solely on executive authority. International Agreements: An Analysis of Executive Regulations and Practices, A Study Prepared for the Senate Committee on Foreign Relations by the Congressional Research Service, 95th Cong., 1st sess. (Comm. Print) (1977), 22.
391 “[T]he distinction between so–called ‘executive agreements’ and ‘treaties’ is purely a constitutional one and has no international significance.” Harvard Research in International Law, Draft Convention on the Law of Treaties, 29 Amer. J. Int. L. 697 (Supp.) (1935). See E. Byrd, op. cit., n.292, 148–151. Many scholars have aggressively promoted the use of executive agreements, in contrast to treaties, as a means of enhancing the role of the United States, especially the role of the President, in the international system. See McDougal & Lans, Treaties and Congressional–Executive or Presidential Agreements: Interchangeable Instruments of National Policy (Pts. I & II), 54 L. J.181,534 (1945).
392 1 Stat. 138 (1790). See E. Byrd, op. cit., n.292, 53 n.146.
393 W. McClure, International Executive Agreements (New York: 1941), 41.
394 Id., 38–40. The statute was 1 Stat. 232, 239, 26 (1792).
395 Id., 62–70.
396 Id., 78–81; S. Crandall, op. cit., n.264, 127–131; see CRS Study, op. cit., n.262, 52–55.
397 Id., 121–127; W. McClure, op. cit., n.393, 83–92, 173–189.
398 Id., 8, 59–60.
399 Sec. 3, 26 Stat. 567, 612 .
400 Tariff Act of 1897, Sec. 3, 30 Stat. 15, 203 ; Tariff Act of 1909, 36 Stat. 11, 82 .
401 48 Stat. 943 , Sec. 350(a), 19 U.S.C. §§ 1351 –1354.
402 See the continued expansion of the authority. Trade Expansion Act of 1962, 76 Stat. 872 , Sec. 201, 19 U.S.C. Sec. 1821 ; Trade Act of 1974, 88 Stat. 1982 , as amended, 19 U.S.C. §§ 2111 , 2115, 2131(b), 2435. Congress has, with respect to the authorization to the President to negotiate multilateral trade agreements under the auspices of GATT, constrained itself in considering implementing legislation, creating a “fast–track” procedure under which legislation is brought up under a tight timetable and without the possibility of amendment. 19 U.S.C. §§ 2191 –2194.
403 143 U.S. 649 (1892).
404 Id., 694. See also Dames & Moore v. Regan, 453 U.S. 654 (1981), in which the Court sustained a series of implementing actions by the President pursuant to executive agreements with Iran in order to settle the hostage crisis. The Court found that Congress had delegated to the President certain economic powers underlying the agreements and that his suspension of claims powers had been implicitly ratified over time by Congress’ failure to set aside the asserted power. Also see Weinberger v. Rossi, 456 U.S. 25, 29–30 n. 6 (1982).
405 224 U.S. 583 (1912).
406 Id., 601.
407 55 Stat. 31 .
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