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.

Congress early authorized officers of the Executive Branch to enter into negotiations and to conclude agreements with foreign governments, authorizing the borrowing of money from foreign countries1 and appropriating money to pay off the government of Algiers to prevent pirate attacks on United States shipping.2 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.” 3 Congress has also approved, usually by resolution, other executive agreements, such as the annexing of Texas and Hawaii and the acquisition of Samoa.4 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.5

The most copious source of executive agreements has been legislation which provided authority for entering into reciprocal trade agreements with other nations.6 Such agreements in the form of treaties providing for the reciprocal reduction of duties subject to implementation by Congress were frequently entered into,7 but beginning with the Tariff Act of 1890,8 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.9 Then, in the Reciprocal Trade Agreements Act of 1934,10 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.11

In Field v. Clark,12 legislation conferring authority on the President to conclude trade agreements was sustained against the objection that it attempted an unconstitutional delegation “of both legislative 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.” 13 Although two Justices disagreed, the question has never been revived. However, in B. Altman & Co. v. United States,14 decided twenty years later, a collateral question was passed upon. This was whether an act of Congress that 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 the Tariff Act of 1897. The Court answered: “While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, § 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.” 15

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-Lease Act of March 11, 1941,16 by which the President was empowered for 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 under which the government furnished its allies in World War II with 40 billion dollars’ worth of munitions of war and other supplies.

Overlapping of the treaty-making power through congressional-executive cooperation in international agreements is also demonstrated by the use of resolutions approving the United States joining of international organizations17 and participating in international conventions.18

Footnotes

1

Act of Aug. 4, 1790, 1 Stat. 138.

2

W. McClure, International Executive Agreements 41 (1941).

3

Id. at 38–40. The statute was 1 Stat. 232, 239, 246 (1792).

4

McClure, supra note 2, at 62–70.

5

Id. at 78–81; Samuel B. Crandall, Treaties, Their Making and Enforcement 127-131 (2d ed. 1916).

6

Id. at 121–27; McClure, supra note 2, at 83–92, 173–89.

7

Id. at 8, 59–60.

8

Tariff Act of 1890, Pub. L. No. 51-1243, § 3, 26 Stat. 567, 612.

9

Tariff Act of 1897, Pub. L. No. 55-11, § 3, 30 Stat. 151, 203; Tariff Act of 1909, Pub. L. No. 61-5, 36 Stat. 11, 82.

10

Trade Agreements Act, Pub. L. No. 73-316, 48 Stat. 943, § 350(a) (1934) (codified at 19 U.S.C. §§ 1351–1354).

11

See the continued expansion of the authority. Trade Expansion Act of 1962, Pub. L. No. 87-794, 76 Stat. 872, § 201 (codified as amended at 19 U.S.C. § 1821); Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1982 (codified as amended at 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.

12

143 U.S. 649 (1892).

13

143 U.S. at 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’s failure to set aside the asserted power. See also Weinberger v. Rossi, 456 U.S. 25, 29–30 n.6 (1982).

14

224 U.S. 583 (1912).

15

Id. at 601.

16

Pub. L. No. 77-11, 55 Stat. 31 (1941).

17

E.g., S. J. Res. 131, 48 Stat. 1182 (1934), authorizing the President to accept membership for the United States in the International Labor Organization.

18

See Edward S. Corwin, Presidential Power and the Constitution 216 (Richard Loss, ed., 1976).