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.

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.1 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 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. Between 1939 and 1993, executive agreements comprised more than 90% of the international agreements concluded.2

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.3 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.4

Footnotes

1

Compare U.S. Const. art. II, § 2, cl. 2, and U.S. Const. art. VI, cl. 2, with U.S. Const. art. I, § 10, cls. 1 and 3. Cf. Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570–72 (1840). And note the discussion in Weinberger v. Rossi, 456 U.S. 25, 28–32 (1982).

2

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 John Foster 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 Subcomm. of the S. Judiciary Comm., 83d Cong. 877 (1953).

3

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. C.H. McLaughlin, The Scope of the Treaty Power in the United States—II, 43 Minn. L. Rev. 651, 721 (1959). Another, somewhat overlapping study found that in the period 1946–1972, 88.3 percent of executive agreements were based at least in part on statutory authority; 6.2% were based on treaties, and 5.5 percent were based solely on executive authority. International Agreements: An Analysis of Executive Regulations and Practices, S. Comm. on Foreign Rels., 95th Cong. 22 (Comm. Print) (1977).

4

“[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). 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 Myers McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (Pts. I & II), 54 Yale L. J. 181, 534 (1945).