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Executive Agreements

EXECUTIVE AGREEMENTS

EXECUTIVE AGREEMENTS, a term signifying international agreements concluded by the president, as distinguished from treaties, which can be ratified by the president only with consent of the Senate. In international usage they are often called "treaties in simplified form," whether embodied in one text or in an exchange of notes. Executive agreements are as effective as formal treaties in conferring rights and obligations under international law. The Constitution mentions them obliquely as "agreements" or "compacts," without specifying limitations as to procedure, form, or substance. Early suppositions that they bind only the administration that concludes them, or that their use must be confined to routine matters, have been negated by practice. Although executive agreements are usually administrative agreements that implement policies already determined, there are many that have determined significant policies—for example, the Rush-Bagot Agreement (1817) limiting armament on the Great Lakes; the exchange of notes enunciating the Open Door policy in China (1899, 1900); the Boxer Protocol (1901); the Gentlemen's Agreement (1907) on Japanese immigration; the Lansing-Ishii Agreement (1917) on Japanese interests in China; the armistices after the Revolution, the Spanish-American War, and the two world wars; the Atlantic Charter (1941); and the Moscow, Teheran, Yalta, and Potsdam agreements during World War II (1943, 1945).

Although concluded by the president, most executive agreements have congressional authorization or approval. They can be classified according to whether they are (1) based on prior legislation; (2) implemented by subsequent legislation; (3) based on prior treaties; (4) based on prior treaties and implemented by legislation; (5) made under the president's constitutional powers; or (6) based in part on presidential powers and in part on legislation or treaty. Because of the rapid escalation of their use, critics contend that executive agreements have been employed instead of treaties to avoid submission to the Senate. Their increased use is mainly a response to expanding international administrative requirements in implementing policies otherwise determined with respect to international mail, civil aviation, mutual aid settlements and surplus property disposal ending wartime aid to allies, trade and tariff agreements, economic development, military assistance, cooperative agricultural and educational programs, international arbitration, and international telecommunications.

The debate over the president's executive authority in foreign affairs intensified in the late twentieth century, particularly in regard to the use of American military forces abroad. The controversial military intervention in Vietnam in the 1960s and 1970s inspired Congress to take a more active role in foreign affairs, a step that increased friction with the White House. For example, during the 1980s the Reagan administration defied Congress by covertly sending aid to the Nicaraguan Contras, a policy later exposed in the Iran-Contra scandal. In the early 1990s the Bush administration committed American forces to the defense of Saudi Arabia without submitting the matter to a vote in Congress. Only on the eve of war with Iraq in January 1991 did the administration seek official congressional approval for the use of force. The ambiguous nature of presidential and congressional responsibilities in international affairs seems likely to remain a source of debate and controversy in American foreign policy.

BIBLIOGRAPHY

DeConde, Alexander. Presidential Machismo: Executive Authority, Military Intervention, and Foreign Relations. Boston: Northeastern University Press, 2000.

Margolis, Lawrence. Executive Agreements and Presidential Power in Foreign Policy. New York: Praeger, 1985.

Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton, N.J.: Princeton University Press, 2001.

AnthonyGaughan

C. H.McLaughlin

See alsoBricker Amendment ; Confirmation by the Senate ; Treaties, Commercial ; Treaties, Negotiation and Ratification of .

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