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Constitution, as well as those who were responsible for the Bii of state that no other form of international agreement is per-
Rights-let alone alien to ow entire constitutional history and tradi- missible. Thus, from the earliest days of the American
) tion-to construe Article VI as permitting the United States to exercise Republic, Presidents have entered into agreements
power under an international agreement without observing constitu- (which fall short of treaties) with foreign governments
tional prohibitions. In effect, such construction would permit arnend-
ment of that document in a manner not sanctioned by Article V. The either on their own authority or upon the authority of an
prohibitions of the Constitution were designed to apply to all branches of act of Congress passed by majority vote in each House of
the National Government and they cannot be rimed by the Executive Congress. Materials of particular importance to the issue
or by the Executive and the Senate combined. of executive agreements follow.
There is nothing new or unique about what we say here. This Court
has regularly and uniformly recognized the supremacy of the Constitu- RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF
tion over a treaty. .. . THE UNITED STATES (1965)
This Court has also repeatedly taken the position that an Act of Con- 5 117. Scope of International Agreements
gress, which must comply with the Constitution, is on a full parity with a (1) The United States has the power under the Constitution to make
treaty, and that when a statute which is subsequent in time is inconsis- an international agreement if
tent with a treaty, the statute to the extent of conflict renders the treaty (a) the matter is of international concern, and
null. It would be completely anomalous to say that a treaty need not (b) the agreement does not contravene any of the limitations of
comply with the Constitution when such an agreement can be ovenid- the Constitution applicable to all powers of the United States. ,
den by a statute that must conform to that instrument. 8119. Scope of Executive Agreement Pursuant to Treaty
There is nothing in State of Missouri v. Holland, 252 U.S. 416, 40
S.Ct. 382, 64 L.Ed.641,which is contrary to the position taken here. An international agreement made as an executive agreement pur-
suant to a treaty to which the United States is a party may deal with
There the Court carefully noted that the treaty involved was not incon- any matter that satisfies the requirements indicated in 5117 and will
sistent with any specific provision of the Constitution. The Court was carry out the purposes of the treaty.
concerned with the Tenth Amendment which reserves to the States or
the people all power not delegated to the National Government. To the 5 120. Scope of Executive Agreement Authorized by Act of Congress
extent that the United States can validly make treaties, the people and An international agreement made by the United States as an execu-
the States have delegated their power to the National Government and tive agreement authorized by an act of Congress may, subject to the
the Tenth Amendment is no barrier. limitations indicated in 5117deal with any matter that falls within any
In summary, we conclude that the Constitution in its entirety applied of the powers of the Congress arid the Resident under the Constitu-
to the trials of Mrs. Smith and Mrs. Covert. .. . tion, even if the matter also falls within the treaty power.
c. One further aspect of the incorporation of treaties Comment:
a. Scope of agreement. An executive agreement of the kind described
into American municipal law is the inherent limitation in this Section must be within the powers that are delegated to the Con-
upon the subject matter of these agreements. Former gress and the Resident under the Constitution. When the President
Chief Justice Charles Evans Hughes stated in 1929 that makes an executive agreement pursuant to congressional authorization,
the treaty-making power ". . . is to deal with Foreign na- the scope of the agreement is limited by the scope of the collective
tions with regard to matters of international concern . . ." powers of the Congress and of the President. The occasion for the use of
and is not to be exercised ". . . with respect to matters that executive agreements of thistype arisesfrom the Resident's position as
the officer of the United States who is constitutionally authorized to con-
have no relation to international concerns." 93 The U.S. duct foreign relations. The Congress may enact legislation which for its
Department of State has recognized this limitation, stating implementation requires an agreement with a foreign state. To carryout
in 195 5, "[Tlreaties are not to be used as a device for the the legislation, the agreement with the foreign state must be concluded
purpose of effecting internal social changes or to try to cir- under the authority of the President.
cumvent the constitutional procedures established in rela- Reporters' Nore:
tion to what are essentially matters of domestic con- . . . Since the treaty power is an independent power under the Con-
cern." 94 Whether the Executive branch, acting through stitution and is not limited by other delegated powers, it might be
argued that it is more extensive than the expressly delegated powers of
the State Department, has, in practice, recognized the
Congress. See 5118of the Restatement of this Subject. However, dele-
constitutional limitations placed on the agreement-making gated powers of the Congress under the Constitution are so extensive
power has been and continues to be a much debated issue. and so broadly interpreted by the courts as to suggest that Congress, act-
The following material will hopefully provide the reader ing under such powers (including the "necessary and proper" clause of
with greater insight into the Executive agreement-making Article I, Section 8) can authorize the President to make an executive
agreement relating to any matter of international concern.
power.
8-20. The Executive Agreement-Making Power. a. 5 121. Scope of Executive Agreement Pursuant to President's Con-
stitutional Authority
Historical. Although Article 11, section 2, of the Constitu- An international agreement made by the United States as an execu-
tion limits the Presidential treaty-making power by requir- tive agreement without reference to a treaty or act of Congress may,
ing "the Advice and Consent of the Senate ... provided subject to the limitations indicated in 5117,deal with any matter that
two thirds of the Senators present concur," it does not under the Constitution falls within the independent powers of the
President.
93. Remarks of Charles Evans Hughes Before the American Comment:
Society of International Law, [I9291Am. Soc. Int% Proc. 194. a. General.The authority of the Resident to make executive agree-
94. U.S. Dept. of State Circular No. 175 (1955), reprinted in 50 ments in the field of foreign relations is based on the following provi-
Am. J. Int? L. 784 (1956). For a discussion of thiscircular and its mean- sions of the Constitution:
ing, see Bidder, The Offie of the Legal Adviror, Department of S~te, 56 "The executive Power shall be vested in a President of the United
Am. J. Int'l L. 633, 651-653 (1962). States of America." U.S. Const. art. 11, 51;