Tornado Alley (PROG)

[fuagf]

INTERNATIONAL AGREEMENTS WITHOUT SENATE APPROVAL

.. it's very long, just that i've seen so many claiming trade agreements which have not been approved
by Congress are unconstitutional, when it seems they are not .. and i've had it on tab for about a week .. :)

The capacity of the United States to enter into agreements with other nations is not exhausted in the treaty-making power. The Constitution recognizes a distinction between ''treaties'' and ''agreements'' or ''compacts'' but does not indicate what the difference is. 388 The differences, which once may have been clearer, have been seriously blurred in practice within recent decades. Once a stepchild in the family in which treaties were the preferred offspring, the executive agreement has surpassed in number and perhaps in international influence the treaty formally signed, submitted for ratification to the Senate, and proclaimed upon ratification.

During the first half-century of its independence, the United States was party to sixty treaties but to only twenty-seven published executive agreements. By the beginning of World War II, there had been concluded approximately 800 treaties and 1,200 executive agreements. In the period 1940-1989, the Nation entered into 759 treaties and into 13,016 published executive agreements. Cumulatively, in 1989, the United states was a party to 890 treaties and 5,117 executive agreements. To phrase it comparatively, in the first 50 years of its history, the United States concluded twice as many treaties as executive agreements. In the 50-year period from 1839 to 1889, a few more executive agreements than treaties were entered into. From 1889 to 1939, almost twice as many executive agreements as treaties were concluded. In the period since 1939, executive agreements have comprised more than 90% of the international agreements concluded. 389

One must, of course, interpret the raw figures carefully. Only a very small minority of all the executive agreements entered into were based solely on the powers of the President as Commander-in-Chief and organ of foreign relations; the remainder were authorized in advance by Congress by statute or by treaty provisions ratified by the Senate. 390 Thus, consideration of the constitutional significance of executive agreements must begin with a differentiation among the kinds of agreements which are classed under this single heading. 391

Executive Agreements by Authorization of Congress

Congress early authorized the entry into negotiation and agreement of officers of the executive branch with foreign governments, authorizing the borrowing of money from foreign countries 392 and appropriating money to pay off the government of Al giers to prevent pirate attacks on United States shipping. 393 Perhaps the first formal authorization in advance of an executive agreement was enactment of a statute that permitted the Postmaster General to ''make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post offices.'' 394 Congress has also approved, usually by resolution, other executive agreements, such as the annexing of Texas and Hawaii and the acquisition of Samoa. 395 A prolific source of executive agreements has been the authorization of reciprocal arrangements between the United States and other countries for the securing of protection for patents, copyrights, and trademarks. 396

Reciprocal Trade Agreements .--But the most copious source of executive agreements has been legislation which provided authority for the entering into of reciprocal trade agreements with other nations. 397 Such agreements in the form of treaties providing for the reciprocal reduction of duties subject to implementation by Congress were frequently entered into, 398 but beginning with the Tariff Act of 1890 399 Congress began to insert provisions authorizing the Executive to bargain over reciprocity with no necessity of subsequent legislative action. The authority was widened in successive acts. 400 Then, in the Reciprocal Trade Agreements Act of 1934, 401 Congress authorized the President to enter into agreements with other nations for reductions of tariffs and other impediments to international trade and to put the reductions into effect through proclamation. 402

The Constitutionality of Trade Agreements .--In Field v. Clark, 403 this type of legislation was sustained against the objection that it attempted an unconstitutional delegation ''of both legis lative and treaty-making powers.'' The Court met the first objection with an extensive review of similar legislation from the inauguration of government under the Constitution. The second objection it met with a curt rejection: ''What has been said is equally applicable to the objection that the third section of the act invests the President with treaty-making power. The Court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the President.'' 404 Although two Justices disagreed, the question has never been revived. However, in B. Altman & Co. v. United States, 405 decided twenty years later, a collateral question was passed upon. This was whether an act of Congress which gave the federal circuit courts of appeal jurisdiction of cases in which ''the validity or construction of any treaty . . . was drawn in question'' embraced a case involving a trade agreement which had been made under the sanction of Tariff Act of 1897. Said the Court: ''While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, Sec. 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless, it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court.'' 406

The Lend-Lease Act .--The most extensive delegation of authority ever made by Congress to the President to enter into executive agreements occurred within the field of the cognate powers of the two departments, the field of foreign relations, and took place at a time when war appeared to be in the offing and was in fact only a few months away. The legislation referred to is the Lend- Lease Act of March 11, 1941, 407 by which the President was empowered for something over two years--and subsequently for additional periods whenever he deemed it in the interest of the national defense to do so-- to authorize ''the Secretary of War, the Secretary of the Navy, or the head of any other department or agency of the Government,'' to manufacture in the government arsenals, factories, and shipyards, or ''otherwise procure,'' to the extent that available funds made possible, ''defense articles''--later amended to include foodstuffs and industrial products--and ''sell, transfer title to, exchange, lease, lend, or otherwise dispose of,'' the same to the ''government of any country whose defense the President deems vital to the defense of the United States,'' and on any terms that he ''deems satisfactory.'' Under this authorization the United States entered into Mutual Aid Agreements whereby the Government furnished its allies in World War II forty billions of dollars worth of munitions of war and other supplies.

International Organizations .--Overlapping of the treaty-making power through congressional-executive cooperation in international agreements is also demonstrated by the use of resolutions approving the United States joining of international organizations 408 and participating in international conventions. 409

Executive Agreements Authorized by Treaties

Arbitration Agreements .--In 1904-1905, Secretary of State John Hay negotiated a series of treaties providing for the general arbitration of international disputes. Article II of the treaty with Great Britain, for example, provided as follows: ''In each individual case the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute and the scope of the powers of the Arbitrators, and fixing the periods for the formation of the Arbitral Tribunal and the several stages of the procedure.'' 410 The Senate approved the British treaty by the constitutional majority having, however, first amended it by substituting the word ''treaty'' for ''agreement.'' President Theodore Roosevelt, characterizing the ''ratification'' as equivalent to rejection, sent the treaties to repose in the archives. ''As a matter of historical practice,'' Dr. McClure comments, ''the compromis under which disputes have been arbitrated include both treaties and executive agreements in goodly numbers,'' 411 a statement supported by both Willoughby and Moore. 412

Agreements Under the United Nations Charter .--Article 43 of the United Nations Charter provides: ''1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. 2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. 3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. The y shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.'' 413 This time the Senate did not boggle over the word ''agreement.''

The United Nations Participation Act of December 20, 1945, implements these provisions as follows: ''The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.'' 414

Status of Forces Agreements .--Negotiated pursuant to authorizations contained in treaties between the United States and foreign nations in the territory of which American troops and their dependents are stationed, these Agreements afford the United States a qualified privilege, which may be waived, of trying by court martial soldiers and their dependents charged with commission of offenses normally within the exclusive, criminal jurisdiction of the foreign signatory power. When the United States, in conformity with the waiver clause in such an Agreement, consented to the trial in a Japanese court of a soldier charged with causing the death of a Japanese woman on a firing range in that country, the Court could ''find no constitutional barrier'' to such action. 415 However, at least five of the Supreme Court Justices were persuaded to reject at length the contention that such Agreements could sustain, as necessary and proper for their effectuation, implementing legislation subsequently found by the Court to contravene constitutional guaranties set forth in the Bill of Rights. 416

Executive Agreements on the Sole Constitutional Authority of the President

Many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. Among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Story's words, ''the mere private rights of sovereignty.'' 417 Crandall lists scores of such agreements entered into with other governments by the authorization of the President. 418 Such agreements were ordinarily directed to particular and comparatively trivial disputes and by the settlement they effect of these cease ipso facto to be operative. Also, there are such time-honored diplomatic devices as the ''protocol'' which marks a stage in the negotiation of a treaty, and the modus vivendi, which is designed to serve as a temporary substitute for one. Executive agreements become of constitutional significance when they constitute a determinative factor of future foreign policy and hence of the country's destiny. In consequence particularly of our participation in World War II and our immersion in the conditions of international tension which prevailed both be fore and after the war, Presidents have entered into agreements with other governments some of which have approximated temporary alliances. It cannot be justly said, however, that in so doing they have acted without considerable support from precedent.

An early instance of executive treaty-making was the agreement by which President Monroe in 1817 brought about a delimitation of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later were laid before the Senate with a query as to whether it was within the President's power, or whether advice and consent of the Senate wwas required. The Senate approved the agreement by the required two-thirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications. 419 Of a kindred type, and owing much to the President's capacity as Commander-in-Chief, was a series of agreements entered into with Mexico between 1882 and 1896 according each country the right to pursue marauding Indians across the common border. 420 Commenting on such an agreement, the Court remarked, a bit uncertainly: ''While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander in chief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect.'' 421 Justice Gray and three other Justices were of the opinion that such action by the President must rest upon express treaty or statute. 422

Notable expansion of presidential power in this field first became manifest in the administration of President McKinley. At the outset of war with Spain, the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, a course which, as Professor Wright observes, ''would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars.'' 423 Hostilities with Spain were brought to an end in August, 1898, by an armistice the conditions of which largely determined the succeeding treaty of peace, 424 just as did the Armistice of November 11, 1918, determine in great measure the conditions of the final peace with Germany in 1918. It was also President McKinley who in 1900, relying on his own sole authority as Commander-in-Chief, contributed a land force of 5,000 men and a naval force to cooperate with similar contingents from other Powers to rescue the legations in Peking from the Boxers; a year later, again without consulting either Congress or the Senate, he accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers. 425 Commenting on the Peking protocol Willoughby quotes with approval the following remark: ''This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character . . . purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Peking, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot.'' 426

It was during this period, too, that John Hay, as McKinley's Secretary of State, initiated his ''Open Door'' policy, by notes to Great Britain, Germany, and Russia, which were soon followed by similar notes to France, Italy and Japan. These in substance asked the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of the others; and all responded favorably. 427 Then, in 1905, the first Roosevelt, seeking to arrive at a diplomatic understanding with Japan, instigated an exchange of opinions between Secretary of War Taft, then in the Far East, and Count Katsura, amounting to a secret treaty, by which the Roosevelt administration assented to the establishment by Japan of a military protectorate in Korea. 428 Three years later, Secretary of State Root and the Japanese ambassador at Washington entered into the Root-Takahira Agreement to uphold the status quo in the Pacific and maintain the principle of equal opportunity for commerce and industry in China. 429 Meantime, in 1907, by a ''Gentleman's Agreement,'' the Mikado's govern ment had agreed to curb the emigration of Japanese subjects to the United States, thereby relieving the Washington government from the necessity of taking action that would have cost Japan loss of face. The final result of this series of executive agreements touching American relations in and with the Far East was the product of President Wilson's diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange of letters dated November 2, 1917, by which the United States recognized Japan's ''special interests'' in China, and Japan assented to the principle of the Open Door in that country. 430

The Litvinov Agreement .--The executive agreement attained its modern development as an instrument of foreign policy under President Franklin D. Roosevelt, at times threatening to replace the treaty-making power, not formally but in effect, as a determinative element in the field of foreign policy. The President's first important utilization of the executive agreement device took the form of an exchange of notes on November 16, 1933, with Maxim M. Litvinov, the USSR Commissar for Foreign Affairs, whereby American recognition was extended to the Soviet Union and certain pledges made by each official. 431

The Hull-Lothian Agreement .--With the fall of France in June, 1940, President Roosevelt entered that summer into two executive agreements the total effect of which was to transform the role of the United States from one of strict neutrality toward the European war to one of semi-belligerency. The first agreement was with Canada and provided for the creation of a Permanent Joint Board on Defense which would ''consider in the broad sense the defense of the north half of the Western Hemisphere.'' 432 Second, and more important than the first, was the Hull-Lothian Agreement of September 2, 1940, under which, in return for the lease for ninety-nine years of certain sites for naval bases in the British West Atlantic, the United States handed over to the British Government fifty over-age destroyers which had been reconditioned and recommissioned. 433 And on April 9, 1941, the State Department, in consideration of the just-completed German occupation of Denmark, entered into an executive agreement with the Danish min ister in Washington, whereby the United States acquired the right to occupy Greenland for purposes of defense. 434

The Post-War Years .--Post-war diplomacy of the United States was greatly influenced by the executive agreements entered into at Cairo, Teheran, Yalta, and Potsdam. 435 For a period, the formal treaty--the signing of the United Nations Charter and the entry into the multinational defense pacts, like NATO, SEATO, CENTRO, and the like-- reestablished itself, but soon the executive agreement, as an adjunct of treaty arrangement or solely through presidential initiative, again became the principal instrument of United States foreign policy, so that it became apparent in the 1960s that the Nation was committed in one way or another to assisting over half the countries of the world protect themselves. 436 Congressional disquietitude did not result in anything more substantial than passage of a ''sense of the Senate'' resolution expressing a desire that ''national commitments'' be made more solemnly in the future than in the past. 437

The Domestic Obligation of Executive Agreements

When the President enters into an executive agreement, what sort of obligation is thereby imposed upon the United States? That international obligations of potentially serious consequences may be imposed is obvious and that such obligations may linger for long periods of time is equally obvious. 438 But the question is more directly pointed to the domestic obligations imposed by such agreements; are treaties and executive agreements interchangeable insofar as domestic effect is concerned? 439 Executive agreements entered into pursuant to congressional authorization and probably through treaty obligations present little doctrinal problem; those arrangements which the President purports to bind the Nation with solely on the basis of his constitutional powers, however, do raise serious questions.

Until recently, it was the view of most judges and scholars that this type of executive agreement did not become the ''law of the land'' pursuant to the supremacy clause because the treaty format was not adhered to. 440 A different view seemed to underlay the Supreme Court decision in B. Altman & Co. v. United States, 441 in which it was concluded that a jurisdictional statute reference to ''treaty'' encompassed an executive agreement. The idea flowered in United States v. Belmont, 442 where the Court, in an opinion by Justice Sutherland, following on his Curtiss-Wright 443 opinion, gave domestic effect to the Litvinov Agreement. At issue was whether a district court of the United States was correct in dismissing an action by the United States, as assignee of the Soviet Union, for certain moneys which had once been the property of a Russian metal corporation the assets of which had been appropriated by the Soviet government. The lower court had erred, the Court ruled. The President's act in recognizing the Soviet government, and the accompanying agreements, constituted, said the Justice, an international compact which the President, ''as the sole organ'' of international relations for the United States, was authorized to enter upon without consulting the Senate. Nor did state laws and policies make any difference in such a situation, for while the supremacy of treaties is established by the Constitution in express terms, yet the same rule holds ''in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States.'' 444

In United States v. Pink, 445 decided five years later, the same course of reasoning was reiterated with added emphasis. The question here involved was whether the United States was entitled under the Executive Agreement of 1933 to recover the assets of the New York branch of a Russian insurance company. The company argued that the decrees of confiscation of the Soviet Government did not apply to its property in New York and could not consistently with the Constitution of the United States and that of New York. The Court, speaking by Justice Douglas, brushed these arguments aside. An official declaration of the Russian government itself settled the question of the extraterritorial operation of the Russian decree of nationalization and was binding on American courts. The power to remove such obstacles to full recognition as settlement of claims of our nationals was ''a modest implied power of the President who is the 'sole organ of the Federal Government in the field of international relations'. . . . It was the judgment of the political department that full recognition of the Soviet Government required the settlement of outstanding problems including the claims of our nationals. . . . We would usurp the executive function if we held that the decision was not final and conclusive on the courts.

''It is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy. . . . But state law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement. . . . Then, the power of a State to refuse enforcement of rights based on foreign law which runs counter to the public policy of the forum . . . must give way before the superior Federal policy evidenced by a treaty or international compact or agreement. . . .

''The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would 'imperil the amicable relations between governments and vex the peace of nations.' . . . It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government has diligently endeavored to establish. . . .

''No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to State laws or State policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitu tional sphere, seeks enforcement of its foreign policy in the courts.'' 446

No Supreme Court decision subsequent to Belmont and Pink is available for consideration. 447 Whether the cases in fact turned on the particular fact that the executive agreement in question was incidental to the President's right to recognize a foreign state, despite the language which equates treaties and executive agreements for purposes of domestic law, cannot be known. Certainly, executive agreements entered into solely on the authority of the President's constitutional powers are not the law of the land because of the language of the supremacy clause, and the absence of any congressional participation denies them the political requirements they may well need to attain this position. Nonetheless, so long as Belmont and Pink remain unqualified, it must be considered that executive agreements do have a significant status in domestic law. 448 This status was another element in the movement for a constitutional amendment in the 1960s to limit the President's powers in this field, a movement that ultimately failed. 449

Footnotes

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