Executive Agreement Process


Compare Bradford C. Clark, Domesticating Sole Executive Agreements, 93 Va. L. Rev. 1573, 1661 (2007) (arguing that the text and history of the Constitution support the position that treaties and executive agreements are not interchangeable, and also argue that the supreme clause should be read in order to avoid, in general, exclusive executive agreements being contrary to existing legislation); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1249-67 (1995) (on the grounds that the contractual clause is the exclusive means for Congress to approve important international agreements); John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional Executive Agreements, 99 Me. L.

Rev. 757, 852 (2001) (on the grounds that treaties are the constitutional form required for Congress to approve an international agreement on measures outside the constitutional powers of Congress, including human rights, political/military alliances and arms control issues, but are not necessary for agreements of measures within the competence of Congress, such as the International Trade Agreement. B). avec troisième restatement, p. 1, N° 303 n.8 (« Auparavant, il était fait valoir que certains accords ne sont considérés que comme traités selon les dispositions de la Constitution. . . . . . .

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. The scientific opinion rejected this view.” Henkin, supra note 22, at 217 (“Whatever its theoretical advantages, it is now widely accepted that the Executive Agreement of Congress is available for broad use, including for general use, and is a complete alternative to a contract. . . . “); Hathaway, supra note 45, at 1244 (affirms that “the weight of scientific opinion” has been regarded since the 1940s in favour of the idea that congressional contracts and executive agreements are interchangeable); Bruce Ackerman – David Golove, IS NAFTA Constitutional?, 108 Harv. L. Rev. 799, 861-96 (1995) (arguing that the developments of the Second World War changed the historical understanding of the distribution of power among government entities to make a complete alternative a treaty). Although the Supreme Court has not directly addressed the issue, many courts and commentators agree that the provisions of international agreements that would require the United States to exercise powers that the Constitution assigns exclusively to Congress should not be considered unsuspecting.

Implementing laws are necessary for such provisions to be legally binding internally117 The lower courts have concluded: That a provision of the contract that imposes expenditure credits should not be considered self-edited, because a provision of the contract that imposes expenditure of funds should not be considered self-responsible.118 Other preliminary bodies have proposed that the provisions of the treaty that constitute criminal liability119 or revenue120 should not be self-sustaining, since these powers are the exclusive prerogative of Congress. The Case Act, which came into force in 1972, recognized that executive agreements were becoming the dominant means by which the executive branch entered into international agreements, and Congress opted for transparency to discourage problematic behaviour and allow for the monitoring of potential political and legal problems.