ArtII.S2.C2.2.2 Legal Basis for Executive Agreements

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. Among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Justice Joseph Story’s words, “the mere private rights of sovereignty.” 1 Crandall lists scores of such agreements entered into with other governments by the authorization of the President.2 Such agreements were ordinarily directed to particular and comparatively trivial disputes and by the settlement they effect of these cease ipso facto to be operative. Also, there are such time-honored diplomatic devices as the “protocol” which marks a stage in the negotiation of a treaty, and the modus vivendi, which is designed to serve as a temporary substitute for one. Executive agreements become of constitutional significance when they constitute a determinative factor of future foreign policy and hence of the country’s destiny. In consequence particularly of our participation in World War II and our immersion in the conditions of international tension which prevailed both before and after the war, Presidents have entered into agreements—some of which have approximated temporary alliances—with other governments. It cannot be justly said, however, that in so doing they have acted without considerable support from precedent.

An early instance of executive treaty-making was the agreement by which President James Monroe in 1817 defined the limits of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later were laid before the Senate with a query as to whether it was within the President’s power, or whether advice and consent of the Senate was required. The Senate approved the agreement by the required two-thirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications.3 Commenting on a treaty with Russia providing that U.S. authorities would assist in arresting and returning Russian deserters, the Court remarked, a bit uncertainly: “While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander in chief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect.” 4 Justice Horace Gray and three other Justices believed that such action by the President must rest upon express treaty or statute.5

Notable expansion of presidential power in this field first became manifest in the administration of President William McKinley. At the outset of war with Spain, the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, a course which, as Professor Wright observes, “would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars.” 6 Hostilities with Spain were brought to an end in August, 1898, by an armistice the conditions of which largely determined the succeeding treaty of peace,7 just as did the Armistice of November 11, 1918, determine in great measure the conditions of the final peace with Germany in 1918. It was also President McKinley who in 1900, relying on his own sole authority as Commander in Chief, contributed a land force of 5,000 men and a naval force to cooperate with similar contingents from other Powers to rescue the legations in Peking from the Boxers; a year later, again without consulting either Congress or the Senate, he accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers.8 Commenting on the Peking protocol, Willoughby quotes with approval the following remark: “This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character . . . purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Peking, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot.” 9

It was also during this period that John Hay, as McKinley’s Secretary of State, initiated his “Open Door” policy, by notes to Great Britain, Germany, and Russia, which were soon followed by similar notes to France, Italy, and Japan. These in substance asked the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of the others; and all responded favorably.10 Then, in 1905, the first Roosevelt, seeking to arrive at a diplomatic understanding with Japan, instigated an exchange of opinions between Secretary of War William Howard Taft, then in the Far East, and Count Katsura, amounting to a secret treaty, by which the Roosevelt administration assented to the establishment by Japan of a military protectorate in Korea.11 Three years later, Secretary of State Elihu Root and the Japanese ambassador at Washington entered into the Root-Takahira Agreement to uphold the status quo in the Pacific and maintain the principle of equal opportunity for commerce and industry in China.12 Meantime, in 1907, by a “Gentleman’s Agreement,” the Mikado’s government had agreed to curb the emigration of Japanese subjects to the United States, thereby relieving the Washington government from the necessity of taking action that would have cost Japan loss of face. The final result of this series of executive agreements touching American relations in and with the Far East was the product of President Woodrow Wilson’s diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange of letters dated November 2, 1917, by which the United States recognized Japan’s “special interests” in China, and Japan assented to the principle of the Open Door in that country.13

The executive agreement attained its modern development as an instrument of foreign policy under President Franklin D. Roosevelt, at times threatening to replace the treaty-making power, not formally but in effect, as a determinative element in the field of foreign policy. The President’s first important utilization of the executive agreement device took the form of an exchange of notes on November 16, 1933, with Maxim M. Litvinov, the USSR Commissar for Foreign Affairs, whereby American recognition was extended to the Soviet Union and certain pledges made by each official.14

With the fall of France in June, 1940, President Roosevelt entered into two executive agreements the total effect of which was to transform the role of the United States from one of strict neutrality toward the European war to one of semi-belligerency. The first agreement was with Canada and provided for the creation of a Permanent Joint Board on Defense which would “consider in the broad sense the defense of the north half of the Western Hemisphere.” 15 Second, and more important than the first, was the Hull-Lothian Agreement of September 2, 1940, under which, in return for the lease for ninety-nine years of certain sites for naval bases in the British West Atlantic, the United States handed over to the British Government fifty over-age destroyers which had been reconditioned and recommissioned.16 And on April 9, 1941, the State Department, in consideration of the just-completed German occupation of Denmark, entered into an executive agreement with the Danish minister in Washington, whereby the United States acquired the right to occupy Greenland for purposes of defense.17

Post-war diplomacy of the United States was greatly influenced by the executive agreements entered into at Cairo, Teheran, Yalta, and Potsdam.18 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—re-established 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.19 Congressional disquietude 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.20

3 Joseph Story, Commentaries on the Constitution of the United States 1397 (1833). back
Samuel B. Crandall, Treaties, Their Making and Enforcement ch. 8 (2d ed. 1916); see also W. McClure, International Executive Agreements chs. 1 and 2 (1941). back
Id. at 49–50. back
Tucker v. Alexandroff, 183 U.S. 424, 435 (1902). back
Id. at 467. The first of these conventions, signed July 29, 1882, had asserted its constitutionality in very positive terms. Q. Wright, supra at 239 (quoting Watts v. United States, 1 Wash. Terr. 288, 294 (1870)). back
Id. at 245. back
S. Crandall, supra note 2, at 103–04. back
Id. at 104. back
1 W. Willoughby, The Constitutional Law of the United States 539 (1910). back
McClure, supra note 2 at 98. back
Id. at 96–97. back
Id. at 98–99. back
Id. at 99–100. back
Id. at 140–44. back
Id. at 391. back
Id. at 391–93. Attorney General Robert Jackson’s defense of the presidential power to enter into the arrangement placed great reliance on the President’s “inherent” powers under the Commander in Chief Clause and as sole organ of foreign relations but ultimately found adequate statutory authority to take the steps deemed desirable. 39 Ops. Atty. Gen. 484 (1940). back
4 Dept. State Bull. 443 (1941). back
See A Decade of American Foreign Policy, Basic Documents 1941–1949, S. Doc. No. 123, 81st Cong. pt. 1 (1950). back
For a congressional attempt to evaluate the extent of such commitments, see United States Security Agreements and Commitments Abroad: Hearings Before a Subcomm. of the S. Foreign Rel. Comm., 91st Cong. 10 (1969); see also U.S. Commitments to Foreign Powers: Hearings on S. Res. 151 Before the S. Foreign Rel. Comm., 90th Cong. (1967). back
The “National Commitments Resolution,” S. Res. 85, 91st Cong. (1969). See also S. Rep. No. 797, 90th Cong. (1967). back