Page 164 - Law of Peace, Volume ,

Pam 27-161-1

and consent of two-thirds of the Senate. Thus,this specific ments may be entered into by several of the methods
Executive-Senate procedure can be affected to conclude mentioned above and that such agreements can be con-
any international agreement concerning subject matter stitutionally supported as valid and binding. The President
within the treaty-making power, which is admittedly a thus has a choice with regard to the method by which he
power difrcult to define in precise terms. The records of concludes an Executive agreement. Several of the factors
the Constitutional Convention clearly demonstrate that influencing the President's choice of methodology would
this "treaty power" is jointly entrusted to the President of course be the political considerations involved, the
and the Senate. There& -however, nothing in this record necessity for Congressional participation in the form of
that stipulates what is meant by a "treaty" or that implementing legislation, appropriations, and the degree
forecloses alt-xnative Constitutional procedure for con- of formality desired. It is important to note that there are,
cluding international agreements. The Supreme Court in fact, various constitutional modes for concluding Ex-
has, in fact, consistently upheld the validity of intema- ecutive agreements and that the Presidential Agreement is
tional agreements other than treaties. 95 Thus, the key only one example. The vast majority of Executive agree-
question is not whether the President, or the President and ments are concluded either pursuant to a treaty or are
Congress, may constitutionally enter into Executive authorized by prior or subsequent legislation. 97
agreements with other states, but what the scope of this d. Executive agreements concerning military matters
executive agreement-making power is. are based at least in part on the President's power as Com-
b. The scope of this power is generally defined by mander-in-Chief of the Armed Forces. 98 This includes
means of a "subject matter test." Under this particular not only purely military agreements, such as practical ar-
approach, the extent of both Presidential and Congres- rangements for cooperation with other nations in defense
sional authority to conclude an Executive agreement is matters, but also, for example, agreements on condition
dependent upon the constitutional authority of the Presi- of armistice, including the administration of occupied ter-
dent and Congress to deal with the subject matter of the ritory pending conclusion of a peace treaty. 99
specific agreement in question. For example, an executive e. The President's authority to conclude Executive
agreement concluded solely on Presidential authority, i.e., agreements may also derive from his treaty powers.
a Presidential agreement, 96 must be based on the Presi- Although treaties can be made only by and with the advice
dent's power as Chief Executive of the Nation; Com- and consent of the Senate, it is the President alone who
mander-in-Chief of the Army, Navy, and Air Force; the negotiates, 100 and the process of negotiation may include
diplomatic representatives of the state; or some other the conclusion of protocols which represent stages in those
general Presidential power.
As a result of determining the scope of the Presidential negotiations, or a modus vivendiin limited terms designed
or the Presidential-Congressional authority to enter into to serve as a temporary measure pending the conclusion
Executive agreements by means of the "subject matter of a treaty. 101 The power to "receive Ambassadors and
test," three distinct categories of Executive agreements other public Ministers" has also served as a partial basis
may be identified: for Executive agreements incident to the recognition of
(1) Executive Agreement Pursuant to a TreapAn foreign governments, including such matters as the settle-
Executive agreement expressly or impliedly authorized by ment of foreign claims. 102 Moreover, the,provision em-
a valid treaty. powering the President to "take Care thakthe Laws be
(2) Congressional-Executive Agreemen+An Ex- faithfully executed" provides a basis for agreements
ecutive agreement expressly or impliedly authorized by designed to implement certain provisions of the Constitu-
prior legislation or subsequently approved on any subject tion, statutes, and treaties, as well as other international
within Congressional legislative competence and gen-
uinely a concern of foreign relations.
(3) Presidential AgreemeneAn Executive agree- 97. See Bishop, supra, note 16 at 110-120.
98. See Opinion of the Attorney General regarding the Acquisition
ment concluded solely on the basis of Presidential of Naval and Air Bases in Exchange for Over-Age Destroyers, 30 Op.
authority, on any subject within his independent authority Any. Gen. 484, 486 (1940); Borchard, Treaties and Ekecutive Agree-
and genuinely a concern of foreign relations. ments--A Rep&, 54 YALE L. J. 616, 649 (1945).
99. McDougal and Lans, Treaties and CongressionaCEkecutiw or
c. It is at once apparent that some Executive agree-
Presidential agree men^: Interchangeable Instruments- of National Policy,
54 Yale L. J. 246-47 (1945).
95. See U.S.v. Belmont, 301 U.S.324 (1937), and U.S.v. Pink, 100. U.S.v. Curtis-Wright Export Corp., 299 U.S.304, 319
3.15U.S.203 (1942). These cases also stand for the proposition that (1936).
even Presidential agreements (which are one of three forms of Execu- 101. Corwin, The Constitution of the United States of America,
tive agreements) are controlling law when concluded within an area of Anabsis and Interpretation, S. Doc. 170, 82d Cong., 1st sess., 433
Residential authority. The various forms of Executive agreements are (1952), repeated in 1964 ed., S. Doc. 39, 88th Cong., 1st sess., 485
discussed at p. 8-1 1, supra. (1 964) (hereinafter cited as Convln).
96. AS noted above, the "Presidential agreement" is one of three 102. U.S.v. Belmont, 301 U.S.324 (1937); U.S.v. Pink,315 U.S.
forms of Executive agreements. 203 (1942); McDougal and Lam, supra, note 99 at 247-48.