Other separation of powers premises Treaties

• Article II, §2 of USC grants to President the power “by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of Senators present concur,” and Article V, §6 makes “all Treaties made, or which shall be made, under the Authority of the U.S.,” the supreme law of the land.

• Conflict of Laws

• If treaty is inconsistent with U.S. law, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. [Whitney v. Robertson (1888)].

• Treaty must be a bona fide agreement between states. For example, U.S. cannot write into a “treaty” with Canada a uniform divorce law for U.S.

Executive Agreements

• Although there is no express constitutional authority for executive agreements, USC indirectly recognizes possibility of non-treaty international agreements in Article I, §10, which prohibits states from entering treaties but authorizes them to enter an Agreement or Compact with a foreign Power” with consent of Congress.

Dames & Moore V. Regan - Constitutional limits on scope of executive agreements

• Upheld constitutionality of presidential action taken pursuant to an executive agreement with Iran only after finding congressional authorization for (or at least acquiescence in) President’s decision. Deal to settle claims as part of the Iran hostage release.

United States V. Belmont

• 1937. Upheld terms of executive agreement surrounding U.S. recognition of Soviet Union, even though agreement was reached without prior congressional authorization. SCt relied heavily on President’s express constitutional authority to “receive Ambassadors.”

• Can the President act unilaterally in cases where he lacks express constitutional authority? According to Henkin, we must conclude that there are agreements which President can make on his sole authority and others which he can make only with consent of Senate, but neither Belmont nor anyone else has told us which are which.

Congressional-executive agreements

• Approved by simple majorities of both Houses of Congress, rather than by a two-thirds majority of Senate. (e.g. NAFTA, GATT).

• Are congressional-executive agreements constitutional in absence of approval of 2/3 of Senate?

• Tribe. Because of broad delegation in Article II, President is understood to have inherent power to perform all executive acts, subject to limitations in Articles I and II and other constitutional provisions. Authority to make international agreements that do not rise to level of treaties has long been correctly recognized as one such inherent executive power. However, this does not suggest that Congress may plan an ex post role in approving such agreements with foreign nations on behalf of U.S.

Ackerman & Golove. In approving GATT, Congress enacted a “law” that is formally identical to all others passed under Article I. USC text creates multiple legislative procedures for accomplishing same end. Articles I and II set up alternative systems through which nation can commit itself internationally – one with, and one without, the cooperation of the house.