3 Executive Agreements

Abstract

This chapter considers the status in the U.S. legal system of “executive agreements”—that is, international agreements concluded by the United States outside of the senatorial advice and consent process specified in Article II of the Constitution. After describing the substantial growth during the twentieth century in the number of executive agreements, the chapter focuses in particular on congressional-executive agreements and sole executive agreements. It also considers the extent to which executive agreements are interchangeable with Article II treaties for purposes of domestic law, with respect to the preemption of state law, displacement of federal statutes, and federalism limitations. The chapter further discusses the President’s long-standing use of executive agreements for the settlement of international claims. It concludes with a discussion of the growing phenomenon of non-binding “political” or “soft law” agreements.