An executive agreement[1] 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 treaties. Article II of the U.S. Constitution is clearly essential to establishing two fundamental institutional relationships: the president`s relationship with Congress and the president`s relationship with the rest of the executive establishment, which we would now call “the bureaucracy.” Despite the apparent specificity of the text on some key points -. B for example the role of the president in the appointment process – the silence of the Constitution and the ambiguity of the text in other respects have fuelled arguments animated over the centuries for very different concepts of the American presidency. To paraphrase Judge Robert Jackson, Americans may be “surprised at the poverty of a truly useful and unambiguous authority applicable to the concrete problems of executive power as they really arise.” Youngstown Sheet & Tube Co. vs. Sawyer (1952). With regard to most of what the executive branch does — namely, the implementation of domestic laws without close reference to foreign affairs or military leaders — this interpretation is not convincing.

The clauses that are supposed to justify the unitary executive theory are the executive power acquisition clause, the faithful execution (or “take care”) clause and the written opinions clause. Regardless of each other or the whole, these clauses are supposed to create two constitutional imperatives. The first is that the president is authorized to personally enforce laws and take the prerogative to make any administrative decision that Congress has entrusted to an executive official. The second is that the president has the right to dismiss any U.S. officer serving in the executive branch at will. Appointment clause. The appointment clause should be read in the context of the “executive power” granted to the President. This power included the traditional powers of an executive, not just the enumerated powers as defined in Article I.

Article II then qualifies this understanding by explicitly conferring on Congress some of the traditional powers of the executive branch. The appointment clause gives the Senate the power to deliberate on and approve nominations. Since the Constitution does not change the power of the executive to dismiss subordinate officials, the president retains this unlimited power because he was part of the traditional executive power. This view reflects the majority opinion of the First Congress after a deliberate debate when they isolated the president`s authority over the secretary of state. For the uninitiated reader, one might think that the treaty clause implies that treaties are the only instrument authorized to formalize the nation`s international obligations, or that the Senate, because of its role as “counsel and consent,” would be a full partner of presidents in negotiating treaties. This is not the case either. The Washington and Adams administrations used executive agreements without Senate approval both to arrange the delivery of international mail and to settle claims arising from the seizure of a U.S. ship by a Dutch privateer. Such agreements, sometimes pursued unilaterally and sometimes with legal authority, are now far superior to treaties as instruments of international engagement. With respect to the treaties themselves, when the Senate did not immediately advise Washington on the peace negotiations between Georgia and the Creek Indians, the Senate established the now uniform practice of submitting to the Senate for approval only treaties that had already been concluded. Nor is the argument confirmed by a history of institutional practice.

The manual work of the First Congress on the structure of the original administrative departments contradicts the idea that the drafters intended a unified executive. Congress has welcomed the president`s control at various levels, from seemingly complete, such as the State Department, to essentially non-existent, such as the boards and commissions empowered to oversee the Mint, buy back U.S. debts, and rule on patent applications. Proponents of the unitary executive can cite a variety of presidential statements over the years affirming the existence of full presidential oversight. But again, to quote Judge Jackson, who wrote in 1952 about constitutional debates about the extent of presidential power, “A century and a half of partisan debate and scientific speculation does not provide a net result, but only provides more or less accurate citations of reputable sources on every page of each question.” Youngstown Sheet Tube vs. Sawyer (1952). Unitarian arguments based on presidential statements simply cannot overcome the glaring eclecticism of Congress from its first session by designing different administrative structures with different lines of responsibility to different sources of oversight. For similar reasons, the idea that Congress and the president can jointly enter into international agreements as long as they reach an agreement between Congress and the executive branch is false and would deprive much of the treaty clause of its power. Perhaps practice in some areas of congressional executive agreements, such as trade agreements, is established in such a way that it should not be reversed. But practice has never included the full interchangeability of treaties and executive agreements, and this interchangeability cannot be reconciled with the explicit requirements of the Constitution for the conclusion of treaties.

Of course, you need to interpret the raw numbers carefully. Only a very small minority of all executive agreements concluded were based solely on the powers of the President as Commander-in-Chief and external relations body; the rest has been approved in advance by Congress by legislation or treaty provisions ratified by the Senate.440 Therefore, consideration of the constitutional meaning of executive agreements must begin with a distinction between the types of agreements summarized under this heading alone.441 Finally, the argument in favor of the unified presidency makes the mistake of anachronism. The managerial presidency, praised at the end of the eighteenth century, was simply not conceptualized in the political terms understood today by modern presidentialists. Even if the initial presidential function were to be uniform in some administrative sense, the management powers originally conceived by the president cannot logically lead to the contemporary version of unified power imposed on us by twenty-first century presidents, who interpret the Constitution to mean that the president is personally responsible for the exercise of one or all of the political discretionary powers. that Congress can delegate to anyone in the executive branch. The executive`s stated intention to rely heavily on executive agreements in the implementation of post-war regulations was cited several times during Senate debate during the 1943 session of Congress. Pacts with other nations are not formal “treaties,” but are sometimes adopted unilaterally due to legal powers and sometimes by the president. .