Bradley began with an overview of the various legal mechanisms used to include the United States in international treaties, including: Article II treaties pursued with the approval of the Council and the Senate; contractual implementation agreements approved by other international agreements; Agreements between Congress and the executive branch approved by law ex ante or ex post; and exclusive executive arrangements made by the President under his own constitutional authority. He then described the current state of the legal framework that Congress has created to promote transparency in the use of these agreements. A number of laws require the online publication of all such international agreements within 180 days of their entry into force, but contain various fallout and do not require an explanation from the legal authority under which they were prosecuted. Another requires that executive agreements be reported to Congress, but not necessarily to the public, within 60 days of their entry into force – including secret agreements communicated through a special process – along with an explanation of their legal basis, usually included in an associated cover letter. In the United States, executive agreements are internationally binding when negotiated and concluded under the authority of the president in foreign policy, as commander-in-chief of the armed forces, or under previous law of Congress. For example, the president negotiates as commander-in-chief and enters the status of Armed Forces Agreements (TAFAs), which govern the treatment and disposition of U.S. forces stationed in other countries. However, the President may not unilaterally take executive action on matters that do not fall within his constitutional powers. In such cases, there should be an agreement in the form of an executive agreement of Congress or a treaty with the advice and approval of the Senate.  A treaty is an international agreement concluded in writing between two or more sovereign states and governed by international law, whether enshrined in a single instrument or in two or more interconnected instruments. Treaties have many names: conventions, agreements, alliances, pacts, charters and statutes, among others. The choice of name has no legal significance.
Treaties generally fall into one of two broad categories: bilateral (between two countries) and multilateral (between three or more countries). This recognition of the preventive scope of executive agreements was part of the movement for a constitutional amendment in the 1950s to limit the president`s powers in this area, but this movement failed.496 Dictum in Garamendi acknowledges some of the questions that may be raised about Zschernig. The Zschernig court did not determine which wording of the Constitution prescribes pre-emption, and commentators noted that a respectable argument can be made that the Constitution does not require a general right of first refusal for foreign affairs that is not bound by the supremacy clause, and broader and independent of the specific prohibitions in the footnote of the Constitution,23 for example, it is argued, that the specific prohibitions in Article 1( 10) against States waging war, concluding treaties, maintaining troops in peacetime and issuing letters of stamp and retaliation would have been useless if a more general and dormant power of external relations had been desired. Similarly, it would not have been necessary to declare the treaties the supreme law of the land if a more general preventive power for foreign affairs had existed outside the supremacy clause. See Ramsey, above. and the granting of powers.24 FootnoteWohl part of the «executive power» conferred on the President by Article II, § 1 is a power of conduct of external relations. The Garamendi court raised «a legitimate question as to whether respect for the executive power in matters of foreign policy requires a categorical choice between the opposing theories of the scope and anticipation of conflicts evident in the Zschernig reports.» Instead, Justice Souter suggested to the court that a right of first refusal on the ground may be appropriate if a state enacts laws «simply to take a position on a foreign policy issue, without seriously claiming to be addressing a traditional state responsibility,» and conflict prevention may be appropriate if a state legislates in an area of traditional responsibility, «but in a way that: that has an impact on external relations.» 25 – Footnote 539, United States, 419, No 11. We will have to wait for further litigation to see whether the Court applies this distinction.26 Footnote Justice Ginsburg`s dissent in Garamendi, which the other three judges joined, proposed to restrict Zschernig in a manner that is generally consistent with Justice Souter`s distinction. Zschernig`s preemption, according to Justice Ginsburg, «resonates more audibly when a state action `reflects state policy that criticizes foreign governments and consists in judging them.` 539 U.S.
to 439 (Henkin city, above, 164). But Justice Ginsburg also expressed broader concerns that judges are becoming «the interpreters of the nation`s foreign policy.» Id. at p. 442. See in this context Goldsmith, loc. cit., in 1631, in which Zschernig pre-emption is described as «a form of federal common law of foreign relations.» The United States In United States v. Pink (1942), the Supreme Court ruled that validly concluded international executive treaties had the same legal status as treaties and did not require the consent of the Senate. Also in Reid v. Covert (1957), while reaffirming the President`s ability to make executive arrangements, the Court held that such agreements cannot conflict with existing federal law or the Constitution. Most executive agreements were entered into under a treaty or an act of Congress. Sometimes, however, presidents have made executive arrangements to achieve goals that would not have the support of two-thirds of the Senate.
For example, President Franklin D. Roosevelt after the outbreak of World War II, but before America entered the conflict, issued an executive agreement that gave the United Kingdom 50 obsolescence destroyers in exchange for 99-year leases for some British naval bases in the Atlantic. This recognition of the preventive scope of executive agreements was an element in the movement for a constitutional amendment in the 1950s to limit the president`s powers in this area, but this move failed.9 FootnoteThere were many variations in the language of the Bricker Amendment, but typical was § 3 of S.J. Resolution 1, as reported by the Senate Judiciary Committee. 83rd Congress, 1st Sess. (1953), which stated: «Congress has the power to regulate all executive and other agreements with a foreign power or international organization. All such agreements shall be subject to the restrictions imposed on the Treaties by this Article. The relevant restriction on this point was found in § 2, which stated: «A treaty shall take effect as domestic law in the United States only by legislation that would be valid in the absence of a treaty. Hathaway went on to describe the results of an investigation conducted by the three co-authors into executive agreements and related cover letters that the executive branch submitted to Congress between 1989 and 2017, which they received at the request of the Freedom of Information Act. Their analysis revealed major gaps with the online publishing regime, as only 31 percent of executive agreements reported to Congress were included in the official online database — far fewer than could be found in comparable private databases. Other problems also arose in the Congressional reporting system, as a significant number of cover notes indicated that the executive agreements in question had been submitted late, while private databases contained several thousand such agreements that had never been submitted to Congress.
More problematically, the cover letters showed that the legal basis for many of the executive`s uses of executive agreements was questionable, as less than half highlighted the explicit legal authority to participate in the executive agreement in question, while 17% cited statutes that could not be plausibly interpreted as such an approval. To address these issues, Hathaway argued that Congress could require the executive branch to publish more widely all international agreements and related cover letters — with specific descriptions of the legal basis of the executive agreement in question — in order to allow for greater public oversight, and perhaps limit the use of funds for them or their entry into effect until they are published or transmitted. Or even without legislation, relevant congressional committees could promote public transparency by choosing to publish the executive agreements and cover letters they receive and by asking authorities for more details about legal authorities in the letters they receive. Congressional Executive Agreement, a binding agreement between the United States and a foreign country that is easier to implement than a formal, but technically more limited treaty. .