What Is The Difference Between Executive Agreements And Treaties

Executive agreements and treaties are both instruments used by the United States government to forge agreements with foreign nations. While they serve similar purposes, they differ significantly in their formation, approval process, and legal standing. Understanding these distinctions is crucial for comprehending the landscape of U.S. foreign policy and international law.

Defining Treaties and Executive Agreements

Treaties are formal agreements between nations that are explicitly addressed and ratified according to the U.S. Constitution. They represent a commitment by the United States to adhere to specific international obligations and are considered part of the supreme law of the land.

Executive agreements, on the other hand, are international agreements entered into by the President of the United States without Senate ratification. These agreements are based on the President's constitutional authority and do not require approval by the Senate.

Constitutional Basis and Legal Authority

The power to make treaties is explicitly granted to the President by the U.S. Constitution in Article II, Section 2, Clause 2, which states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." This clause highlights the shared responsibility between the executive and legislative branches in the treaty-making process.

Executive agreements derive their authority from several sources:

• President's Constitutional Powers: The President has broad constitutional authority in foreign affairs, including the power to act as Commander-in-Chief, receive ambassadors, and conduct foreign relations. These inherent powers allow the President to enter into agreements with foreign nations on matters within the scope of their authority.
• Prior Acts of Congress: Congress can authorize the President to enter into executive agreements through legislation. These agreements, known as congressional-executive agreements, are based on statutory authority and have a stronger legal basis than those solely based on presidential power.
• Existing Treaties: The President can enter into executive agreements to implement or interpret existing treaties. These agreements, known as executive agreements pursuant to treaty, allow the President to address specific issues or make necessary adjustments to treaty obligations without seeking further Senate approval.

Formation and Approval Process

The formation and approval process of treaties and executive agreements differ significantly:

Treaties:

1. Negotiation: The President, through the Department of State, negotiates the terms of the treaty with foreign nations.
2. Signature: Once an agreement is reached, the President signs the treaty, signifying the U.S. intent to be bound by its terms.
3. Senate Consideration: The treaty is then submitted to the Senate for consideration. The Senate Foreign Relations Committee holds hearings and debates on the treaty, and may recommend amendments or reservations.
4. Senate Approval: The Senate must approve the treaty by a two-thirds majority vote. This requirement ensures broad support for the treaty within the Senate.
5. Ratification: If the Senate approves the treaty, the President ratifies it, formally binding the United States to its terms.
6. Entry into Force: The treaty enters into force once it has been ratified by all necessary parties and any required conditions have been met.

Executive Agreements:

1. Negotiation: The President, through the Department of State or other relevant agencies, negotiates the terms of the executive agreement with foreign nations.
2. Signature: Once an agreement is reached, the President signs the executive agreement, signifying the U.S. intent to be bound by its terms.
3. No Senate Approval: Unlike treaties, executive agreements do not require Senate approval. This streamlined process allows the President to act quickly and decisively in foreign affairs.
4. Entry into Force: The executive agreement enters into force upon signature or on a date specified in the agreement.

Types of Executive Agreements

Executive agreements can be categorized into three main types:

1. Congressional-Executive Agreements: These agreements are authorized by Congress through legislation. They have the strongest legal basis among executive agreements, as they are based on both presidential and congressional authority.
2. Executive Agreements Pursuant to Treaty: These agreements are made to implement or interpret existing treaties. They allow the President to address specific issues or make necessary adjustments to treaty obligations without seeking further Senate approval.
3. Sole Executive Agreements: These agreements are based solely on the President's constitutional authority. They are used for matters within the President's independent authority, such as recognizing foreign governments or conducting military operations.

Legal Standing and Supremacy

Treaties and executive agreements have different legal standing within the U.S. legal system:

Treaties:

• Supreme Law of the Land: Treaties are considered part of the supreme law of the land under Article VI of the Constitution. This means that treaties have the same legal force as federal statutes and are binding on all states and individuals within the United States.
• Supremacy over State Laws: Treaties supersede conflicting state laws. This principle ensures that the United States can fulfill its international obligations without being hindered by conflicting state laws.

Executive Agreements:

• Legal Force: Executive agreements have legal force and are binding on the United States under international law. However, their legal standing within the U.S. legal system is more complex.
• Supremacy over State Laws (Limited): Executive agreements generally supersede conflicting state laws, but this principle is not as firmly established as it is for treaties.
• Inferior to Federal Statutes: Executive agreements are generally considered inferior to federal statutes. This means that Congress can override an executive agreement by passing a law that conflicts with it.
• Duration and Succession: Unlike treaties, executive agreements do not automatically bind subsequent presidents. A new president can choose to terminate or modify an executive agreement entered into by a previous administration.

Advantages and Disadvantages

Both treaties and executive agreements have their advantages and disadvantages:

Treaties:

• Advantages:
  • Stronger legal basis due to Senate approval
  • More durable, as they are less likely to be terminated by subsequent administrations
  • Greater legitimacy due to the involvement of both the executive and legislative branches
• Disadvantages:
  • Lengthy and complex approval process
  • Requires a two-thirds majority vote in the Senate, which can be difficult to achieve
  • Can be subject to amendments and reservations by the Senate, which may weaken the agreement

Executive Agreements:

• Advantages:
  • Faster and more efficient approval process
  • Allows the President to act quickly and decisively in foreign affairs
  • Provides flexibility to address specific issues or make necessary adjustments to treaty obligations
• Disadvantages:
  • Weaker legal basis compared to treaties
  • Less durable, as they can be terminated or modified by subsequent administrations
  • May be viewed as less legitimate due to the lack of Senate involvement

Historical Context and Usage

The use of executive agreements has grown significantly over time. In the early years of the United States, treaties were the primary means of forging agreements with foreign nations. However, as the country's role in the world expanded, presidents began to rely more heavily on executive agreements to address a wider range of issues.

• Early Examples of Treaties: The Jay Treaty of 1794 between the United States and Great Britain is an example of an early, significant treaty that resolved issues remaining from the Revolutionary War.
• Early Examples of Executive Agreements: The Louisiana Purchase in 1803, though initially authorized through presidential action, was later formalized with congressional approval, illustrating the interplay between executive and legislative powers even in early agreements.
• Growth in Executive Agreements: The rise of executive agreements can be attributed to several factors, including the increasing complexity of international relations, the need for flexibility in foreign policy, and the difficulty of obtaining Senate approval for treaties.
• Landmark Executive Agreements: The Litvinov Assignment during the Franklin D. Roosevelt administration, which addressed claims between the U.S. and the Soviet Union, showcases how executive agreements can normalize relations without requiring Senate ratification. Similarly, the Iran Nuclear Deal (Joint Comprehensive Plan of Action), although controversial, illustrates the use of executive agreements to address critical national security issues.
• Contemporary Use: Executive agreements are now used for a wide range of purposes, including trade, defense, environmental protection, and scientific cooperation.

Case Studies and Examples

Several historical examples illustrate the use and implications of treaties and executive agreements:

• Treaty of Versailles (1919): This treaty, which formally ended World War I, was negotiated by President Woodrow Wilson but ultimately rejected by the U.S. Senate. This example highlights the importance of Senate approval for treaties and the potential consequences of failing to obtain it.
• NAFTA (North American Free Trade Agreement): Although the original NAFTA was technically a treaty, it was implemented through congressional legislation. This approach underscores how trade agreements, which have significant economic impacts, often require legislative support to ensure comprehensive implementation.
• Vietnam War (1964-1973): During the Vietnam War, several significant commitments were made through executive agreements, including agreements for military and economic assistance. This case illustrates the use of executive agreements in matters of national security.
• Paris Agreement (2015): The United States initially joined the Paris Agreement on climate change through an executive agreement. This decision sparked controversy, as some argued that the agreement should have been submitted to the Senate for approval.

The Role of Congress

While executive agreements do not require Senate approval, Congress still plays a significant role in overseeing and shaping U.S. foreign policy. Congress can:

• Pass Legislation: Congress can pass legislation that authorizes or restricts the President's ability to enter into executive agreements.
• Appropriate Funds: Congress controls the purse strings and can withhold funding for programs or activities related to executive agreements.
• Conduct Oversight: Congress can conduct oversight hearings to examine the implementation and impact of executive agreements.
• Express Disapproval: Congress can express its disapproval of an executive agreement through resolutions or other means.

Debates and Controversies

The use of executive agreements has been the subject of ongoing debate and controversy. Critics argue that executive agreements undermine the Senate's constitutional role in treaty-making and allow the President to circumvent the checks and balances established by the Constitution. Supporters argue that executive agreements are necessary for efficient and effective foreign policy and that they provide the President with the flexibility to respond to changing circumstances.

• Separation of Powers Concerns: Critics often argue that the increasing reliance on executive agreements concentrates too much power in the executive branch, potentially bypassing the legislative oversight intended by the framers of the Constitution.
• Transparency Issues: The process of negotiating and implementing executive agreements is often less transparent than the treaty process, raising concerns about public accountability.
• Impact on International Law: The proliferation of executive agreements can create complexities in international law, particularly when agreements are inconsistent or when they lack the stability and legitimacy associated with treaties.

Reforming the Process

Several proposals have been put forward to reform the process of making international agreements:

• Increased Transparency: Some scholars have called for greater transparency in the negotiation and implementation of executive agreements, including making the texts of agreements more readily available to the public.
• Enhanced Congressional Oversight: Others have suggested strengthening congressional oversight of executive agreements, including requiring the President to consult with Congress before entering into significant agreements.
• Clearer Guidelines: There have been calls for establishing clearer guidelines for when an agreement should be made as a treaty versus an executive agreement, based on the agreement's scope, duration, and impact.
• Legal Challenges: Legal scholars debate whether the courts should play a greater role in reviewing the constitutionality of executive agreements, particularly those that significantly impact U.S. law or policy.

Conclusion

Executive agreements and treaties are essential tools for conducting U.S. foreign policy. While treaties require Senate approval and have a stronger legal basis, executive agreements provide flexibility and efficiency for the President. The choice between using a treaty or an executive agreement depends on a variety of factors, including the nature of the agreement, the political climate, and the President's strategic objectives. Understanding the differences between these two instruments is crucial for comprehending the dynamics of U.S. foreign relations and the balance of power between the executive and legislative branches. As the United States continues to engage with the world, the use of both treaties and executive agreements will remain a vital aspect of its foreign policy toolkit.