Executive Agreements In International Law
Most executive agreements were made on the basis of a treaty or an act of Congress. However, presidents have sometimes entered into executive agreements to achieve goals that would not have the support of two-thirds of the Senate. For example, after the outbreak of World War II, but before the United States entered the conflict, President Franklin D. Roosevelt negotiated an executive agreement that granted the United Kingdom 50 overflow destroyers in exchange for 99 years of leases for some British naval bases in the Atlantic. Compare Bradford C. Clark, Domesticating Sole Executive Agreements, 93 Va. L. Rev. 1573, 1661 (2007) (arguing that the text and history of the Constitution support the position that treaties and executive agreements are not interchangeable, and argue that the supremacy clause should be read in such a way that it generally prohibits the repeal of executive agreements); Laurence H. Tribe, Taking Text and Structure Serious: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1249-67 (1995) (arguing that the treaty clause is the only way for Congress to approve important international agreements); John C.
Yoo, Laws as Treaties?: The Constitutionality of Congressional Executive Agreements, 99 moi. L. Rev. 757, 852 (2001) (argues that treaties are the constitutional form required for Congress to approve an international agreement on measures that do not fall within the constitutional competence of Congress, including matters relating to human rights, political/military alliances and arms control, but are not necessary to conclude agreements on measures within the competence of Congress within the meaning of Article I of the Constitution, for example. Β Agreement on International Trade); with the third restatement, note 1, § 303 n.8 (“Once it has been argued that certain agreements can only be concluded in the form of contracts according to the procedure defined by the Constitution. . . . Scientific opinion has rejected this view.”; Henkin, note 22 above, at 217 (“Whatever their theoretical virtues, it is now widely recognized that the congress-executive agreement is available for general use, even for general use, and constitutes a complete alternative to a treaty. . . .
Hathaway, note 45 above, at 1244 (asserts that the “weight of scientific opinion” since the 1940s believed that contracts and agreements between Congress and the executive branch were interchangeable); Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. == 799, 861-96 (1995) (arguing that the evolution of the World War II period changed the historical understanding of the distribution of power of the Constitution among the branches of government to make the agreement between Congress and the executive a complete alternative to a treaty). . . .