With the fall of the France in June 1940, President Roosevelt concluded two executive treaties whose overall effect was to transform the role of the United States from strict neutrality vis-à-vis the European war into a role of semi-war. The first agreement was with Canada and provided for the creation of a Permanent Joint Defence Council which, “in the broadest sense, would consider defending the northern half of the Western Hemisphere.” 15 FootnoteId. to 391. Second, and more important than the first, was the Hull-Lothian Agreement of September 2, 1940, under which the United States, in exchange for leasing certain sites for naval bases in the British West Atlantic, handed over fifty obsolete destroyers to the British government for ninety-nine years, which had been overhauled and recommissioned.16 FootnoteId. pp. 391-93. Attorney General Jackson`s defense of presidential authority to strike the deal relied heavily on the president`s “inherent” powers under the commander-in-chief clause and as the sole foreign relations body, but ultimately found adequate legal authority to take the steps deemed desirable. 39 Ops. Gen 484 (1940). And on 9 April 1941, in view of the recently completed German occupation of Denmark, the Foreign Office concluded an executive agreement with the Danish Minister in Washington, under which the United States acquired the right to occupy Greenland for defence purposes.17 Footnote4 Foreign Ministry Bull. 443 (1941). Although congressional treaties and executive agreements are international agreements, the two are legally separate instruments.
For example, agreements between Congress and the executive branch cannot deal with matters that do not fall within the enumerated powers of 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 United States Constitution, respectively), while treaties may. Moreover, according to the constitution, a treaty is ratified only if at least two-thirds of the Senate votes in favor of it. On the other hand, an agreement between Congress and the executive branch becomes binding with only a simple majority in both houses of Congress. Congressional executive agreements should not be confused with executive agreements made by the president alone. The use of executive agreements increased considerably after 1939. Prior to 1940, the U.S. Senate had ratified 800 treaties and presidents had concluded 1,200 executive agreements; From 1940 to 1989, during World War II and the Cold War, presidents signed nearly 800 treaties but negotiated more than 13,000 executive agreements. The U.S. Constitution provides that the President “has the power to enter into treaties by and with the counsel and consent of the Senate, provided that two-thirds of the senators present agree” (Article II, Section 2). Treaties are binding agreements between nations and are part of international law.
Treaties involving the United States also have the power of federal legislation and are part of what the Constitution calls “the highest law in the land.” Many types of executive agreements include the ordinary daily water of the diplomatic mill. These include, for example, minor territorial adjustments, border corrections, border surveillance, the regulation of fishing rights, private monetary claims against another government or its nationals, in the words of Stories, “mere rights deprived of sovereignty”. 1 Footnote3 J. Story, Commentaries on the United States Constitution 1397 (1833). Crandall lists many such agreements that have been concluded with other governments with the approval of the President.2 Footnotes. Crandall, loc. cit., chap. 8; see also W.
McClure, loc. cit., chap. 1, 2. These agreements were generally aimed at specific and relatively insignificant disputes, and by settling these agreements, they ipso facto lose their effectiveness. In addition, there are centuries-old diplomatic means such as the “protocol”, which marks a phase in the negotiation of a treaty, and the modus vivendi, which is intended to serve as a temporary replacement for a treaty. Executive agreements become of constitutional importance if they are a determining factor in future foreign policy and thus in the fate of the country. In particular, because of our participation in The Second World War and our immersion in the conditions of international tensions that prevailed before and after the war, presidents made agreements with other governments, some of which converged temporary alliances. However, it cannot rightly be said that they acted without the significant support of precedents. The Case-Zablocki Act of 1972 requires the President to notify the Senate within 60 days of the conclusion of an executive agreement.
The Powers of the President to conclude such agreements have not been limited. The notification requirement allowed Congress to vote on cancelling an executive agreement or refusing to fund its implementation.   Partly because the enumerated powers of Congress and the President have been interpreted broadly, most of the agreements proposed as treaties could also have been proposed as executive agreements of Congress. For this reason, the U.S. government has often chosen to use executive agreements of Congress instead of treaties for controversial agreements that are unlikely to achieve the required super-majority in the Senate. Examples of controversial proposals that take the form of agreements between Congress and the executive include the North American Free Trade Agreement (NAFTA) of 1992 and the agreement that made the United States a member of the World Trade Organization (WTO) in 1995. Note: An executive agreement does not have the same weight as a treaty unless it is supported by a joint resolution. Unlike a treaty, an executive agreement can replace a conflicting state law, but not a federal law. In the 1930s, presidents increasingly relied on executive agreements. President Franklin D. Roosevelt signed more than 600 agreements during his four terms.
Nevertheless, Roosevelt respected the traditional distinction between treaties and executive agreements. At the time, Attorney General Robert H. Jackson Roosevelt said that when “negotiations involve commitments for the future,” they are “generally subject to ratification by a two-thirds majority of the Senate before determining the future legislative power of the country.” An executive agreement is an agreement between the heads of government of two or more countries that has not been ratified by the legislature when treaties are ratified. Executive agreements are considered politically binding to distinguish them from legally binding contracts. The Executive Convention achieved its modern development as an instrument of foreign policy under President Franklin D. Roosevelt, and sometimes threatened to replace conventional power not formally, but in fact as a determining element in the field of foreign policy. The first major use of the Executive Treaty instrument by the President took the form of an exchange of notes with Maxim M on 16 November 1933. Litvinov, the USSR`s foreign commissioner, extended American recognition to the Soviet Union and made certain commitments from each official.14 FootnoteId. pp. 140-44. The Supreme Court of the United States, in United States v.
Pink (1942), concluded that validly concluded international executive treaties had the same legal status as treaties and did not require Senate approval. Also in Reid v. Covert (1957), while reaffirming the President`s ability to enter into executive agreements, the Court held that such agreements could not conflict with existing federal law or the Constitution. .