Treaty And Executive Agreement
The four steps of the contract search process are described below. The sources you consult vary depending on whether the treaty is bilateral or multilateral and whether or not the United States is a party to the treaty. In the United States, executive agreements are concluded exclusively by the President of the United States. They are one of three mechanisms through which the United States make binding international commitments. Some authors consider executive agreements to be treaties under international law, as they bind both the United States and another sovereign state. However, under U.S. constitutional law, executive agreements are not considered treaties within the meaning of the contractual clause of the U.S. Constitution, which requires the Council and the approval of two-thirds of the Senate to be considered a treaty. For example, agreements between Congress and the executive branch cannot address matters that fall outside the scope of the powers enumerated by Congress and the President (the powers expressly granted to Congress and the President in Article I, Section 8 and Article II, Section 2 of the U.S. Constitution), while treaties can do so. Moreover, according to the Constitution, a treaty will only be ratified if at least two-thirds of the Senate votes in its favour. In contrast, an agreement between Congress and the executive branch becomes binding only with a simple majority in both houses of Congress. Agreements between Congress and the executive branch should not be confused with executive agreements made by the president alone.
When an international agreement requires implementing legislation or the use of funds to fulfill U.S. obligations, it is up to Congress to pass that legislation131 In the early years of constitutional practice, there has been a debate about whether Congress is required — and not just authorized — to pass laws that would not transpose into national law provisions that were not self-executive.132 133 The Supreme Court of the United States, at United States v. Pink (1942), considered that international executive agreements that have been concluded in force have the same legal status as treaties and do not require the approval of the Senate. Even at Reid v. Covert (1957), while reaffirming the president`s ability to enter into executive agreements, decided that such agreements could not be contrary to existing federal law or the Constitution.