A New Look at Executive Agreements
By Vanessa Guillermety
Over the past couple months we have studied a number of cases dealing with treaties. This area seems to be at the heart of the interplay of Congress, the Executive and the States. The division of authority in the international agreement process provided by the Constitution seems particular relevant when considering the “requirements for effective foreign policy.” See John F. Murphy. “Treaties and International Agreements Other Than Treaties: Constitutional Allocation of Power and Responsibility Among the President, the House of Representatives, and the Senate” Kansas Law Review (lead article). Reprinted in Appendix L, Commission on the Organization of the Government for the Conduct of Foreign Policy. (1975); http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ukalr23&id=239.
The Court has been quite willing to enter the dispute when it deals with the rights, if any, a State has in deciding what a particular treaty stands for or when a particular State enacts a law in contradiction to a treaty as evidenced by Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304 (1816) and Missouri v. Holland, 252 U.S 416 (1920). But to the extent of a controversy as to the division of power given to the Executive vis-à-vis Congress to make agreements or treaties should the Court provide some flexibility as to the constitutionality of those actions, allowing the President to make executive agreements although such power is not expressly provided to the Executive in the Constitution? Should the Court simply let the two branches battle it out?
Article I, § 10, cl. 1 denies treaty-making power to the states; Article II, §2, cl. 2 provides the president with the power to make treaties with the “advice and consent of the Senate” and two-thirds of the senators present concur; Article III, § 2, cl. 1 provides the judiciary with jurisdiction over treaties; Article VI, cl. 2. Provides that the Constitution and the laws of the United States as well as all treaties made under the Authority of the United States are the “supreme law of the land”.
There is no expressly given right to the President as to executive agreements or international agreements without the approval of the Senate. Yet, these agreements are made on a daily basis. See Murphy; http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ukalr23&id=239. Support for their validity is found in the tacit consent of Congress. Dames & Moore v. Regan provides support for this trend or procedure. The Court there relied on the implied congressional approval when it upheld President Regan power to take certain actions in obtaining the release of American hostages from Iran. Dames & Moore v. Regan, 453 U.S. 654 (1981). The controversy there, however, dealt with how the actions of the President affected the interests of an American company abroad. Justice Jackson’s three categories in Youngstown Sheet & Tube Co. v. Sawyer suggest that the President’s actions may be fall within his constitutionally allocated powers depending on whether he acts pursuant to an express authorization, or absence of a congressional grant. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). But his actions may not be constitutionally justified if the President acts in contradiction to the express or implied will of Congress. Id. The decision in Youngstown, however, was made in reference to the President’s power to make laws and dealt with the domestic realm in which Congress arguably has more power. The decision in Dames & Moore suggests Congress through its inertia can provide support for the President’s actions, but what happens when the President makes an agreement in contradiction to Congress’s wishes in the area of international agreements?
The Court has never decided a case between Congress and the Executive, or it has never ruled on “whether an executive agreement can be made against the wishes of Congress.” See Murphy; http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ukalr23&id=239. Can such an agreement be made? And should the President always go through the process of ratifying a treaty, taking it to the Senate before he makes any promises abroad? To what extent is this efficient or beneficial in the arena of international affairs? Perhaps the actions of the President, although their constitutionality may be dubious as the allocation of power between Congress and the Executive as to treaty making is at dispute are supported by the fact that he has a much greater capacity to engage in negotiations in such an area. The decisions of the Supreme Court in United States v. Pink, 315 U.S. 203 (1942) and United States v. Belmont, 301 U.S. 324 (1937) support the “concept of an inherent and independent power in the President to conclude international agreements.” See Murphy; http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ukalr23&id=239.
Guy W. Copps, Ins. V. U.S., 204 F.2d 655 (4th Cir. 1953), although a Fourth Circuit case and lacking the Supreme Court’s nod, is a landmark case in this area. There, the President made an executive agreement in contradiction to an already standing Federal Statute. The Court was willing to deal with the validity of the agreement. The executive agreement between the United States and Canada in Guy W. Copps with respect to the importation into the United States of Canadian seed potatoes interfered with the Agricultural Adjustment program. The 4th Circuit Court held that to the extent that it interfered with Congress’ power to regulate interstate and foreign commerce the agreement was void. The decision suggests that to the extent the executive makes international agreements without the approval of Congress those agreements will be rendered void if they conflict with the power of Congress as previously stipulated. This decision, however, was given in the area expressly vested in the Constitution in Congress, that of regulating interstate commerce.
The Supreme Court suggested, through its decision in Dames & Moore, the approval of Congress was to be given consideration in deciding whether the President’s actions in making executive agreements fell within its constitutionally prescribed area. As to validity of actions taken by Congress to abrogate or contradict a decision or an executive agreement made by the President in the international arena, the Court has never dealt with this issue. Is it likely, that given the opportunity to deal with it, the Court would render it a non-justiciable issue and defer to the two other branches to decide the issue? There is no way of predicting how the Court would deal with such as issue, as the decisions taken up until now have only dealt with situations in which Congress had provided it’s implicit power. It is likely the court will stay in the sidelines.
