What is the difference between the presidents treaty making powers and executive agreements?

With the Treaty of Versailles in mind, Wilson's successor, Warren G. Harding, appointed Senator Henry Cabot Lodge and Democratic Leader Oscar Underwood as delegates to the Washington Naval Conference in 1921, thereby improving the likelihood of Senate approval. Indeed, all three of the treaties negotiated during that conference were approved for ratification. For much the same reason, Presidents Franklin Roosevelt and Harry Truman involved the Senate Foreign Relations Committee chairman, Tom Connally, and the ranking Republican, Arthur Vandenberg, in the creation of the United Nations. This action helped to spare the UN the fate of the League of Nations; there were only two Senate votes against its charter.

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Agreement between heads of government of countries

An executive agreement[1] is an agreement between the heads of government of two or more nations that has not been ratified by the legislature as treaties are ratified. Executive agreements are considered politically binding to distinguish them from treaties which are legally binding.

In the United States, executive agreements are made solely by the President of the United States. They are one of three mechanisms by which the United States enters into binding international obligations. Some authors consider executive agreements to be treaties under international law in that they bind both the United States and another sovereign state. However, under United States constitutional law, executive agreements are not considered treaties for the purpose of the Treaty Clause of the United States Constitution, which requires the advice and consent of two-thirds of the Senate to qualify as a treaty.

Some other nations have similar provisions with regard to the ratification of treaties.

In general

Executive agreements are often used in order to bypass the requirements of national constitutions for ratification of treaties. Many nations that are republics with written constitutions have constitutional rules about the ratification of treaties. The Organization for Security and Co-operation in Europe is based on executive agreements.

In the United States

See also: Foreign policy of the United States

In the United States, executive agreements are binding internationally if they are negotiated and entered into under the president's authority in foreign policy, as commander-in-chief of the armed forces, or from a prior act of Congress. For instance, as commander-in-chief, the president negotiates and enters into status of forces agreements (SOFAs), which govern the treatment and disposition of U.S. forces stationed in other nations. The president cannot, however, enter unilaterally into executive agreements on matters that are beyond their constitutional authority. In such instances, an agreement would need to be in the form of a congressional-executive agreement, or a treaty with Senate advice and consent.[2]

The U.S. Supreme Court, in United States v. Pink (1942), held that international executive agreements validly made have the same legal status as treaties and did not require Senate approval. In Reid v. Covert (1957), while reaffirming the president’s ability to enter into executive agreements, the court also held that such agreements cannot contradict existing federal law or the Constitution.

The Case-Zablocki Act of 1972 requires the president to inform the Senate within 60 days of any executive agreement being made. No restriction was placed on presidential powers to make such agreements. The notification requirement enabled Congress to vote to cancel an executive agreement, or to refuse to fund its implementation.[3][4]

See also

• Congressional-executive agreement

References

1. ^ Green, William (2004). Schultz, David; Vile, John R. (eds.). The Encyclopedia of Civil Liberties in America. Armonk, NY: Routledge. pp. 345–348. ISBN 9781317457138. Retrieved April 25, 2016.
2. ^ Kiki Caruson, and Victoria A. Farrar-Myers. "Promoting the president's foreign policy agenda: Presidential use of executive agreements as policy vehicles." Political Research Quarterly 60.4 (2007): 631-644.
3. ^ Case Act on Executive Agreements (1972)
4. ^ Ellen C. Collier, "Foreign Policy by Reporting Requirement." The Washington Quarterly 11.1 (1988): 75-84.

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Under U.S. law, the term “treaty” is reserved for international agreements submitted by the executive branch to the U.S. Senate for its advice and consent.  Only if the Senate ratifies a treaty by a two-thirds majority may the treaty enter into force.  International agreements that enter into force without the advice and consent of the Senate are often referred to generically as “executive agreements.”  Bear in mind that this generic term encompasses three distinct types of agreements:

• Agreements concluded on the basis of the president's constitutional authority (executive agreements);
• Agreements concluded pursuant to a statute enacted by Congress (congressional-executive agreements); and
• Agreements concluded pursuant to the terms of a duly ratified treaty.

The president must transmit the text of an executive agreement to Congress within 60 days of its entry into to force, pursuant to a 2005 amendment to the Case-Zablocki Act (codified at 1 U.S.C. §112b), as implemented by 22 CFR Part 181.

The Office of the Legal Advisor of the U.S. State Department is responsible for deciding whether an international agreement should be classified as a treaty.  The criteria for making this determination are set forth in the Circular 175 Procedure, which is codified in Volume 11 of the State Department’s Foreign Affairs Manual (11 FAM 720).  The Circular 175 Procedure also establishes uniform guidelines for negotiating, concluding, reporting, and publishing U.S. treaties and other international agreements.

For more in-depth discussion and analysis of the distinction between treaties and other types of international agreements, and for more information about the process of negotiation and ratification, consult the following resources: