Treaties and Executive Agreements

Abstract

There have been several recent attempts to change the Constitution by dispensing with the necessity for the advice and consent of two-thirds of the Senate in the making of treaties. The two-thirds rule is undoubtedly a handicap to the freedom of the Executive in concluding arrangements with foreign countries. It was intended to have such effect; but the check proves to be irksome. It is the author's belief that the check is exceedingly valuable to a democratic government, and while it unquestionably slows up the process of making international commitments, it insures a popular control over treaties and it safeguards the small states in a manner which an easier method of approval might escape.The first method of eliminating the Senate was suggested in 1941 when Mr. Wallace McClure, of the Department of State, wrote his book advocating the interchangeability of the treaty and executive agreement, concluding that anything that could be done by treaty could also be done by executive agreement, with the approval of Congress if necessary, without the approval of Congress if possible. In his support, he invoked what purported to be a growing usage to this effect, as proof of which he cited numerous agreements. These statistics have doubtless been aided by the supposedly unlimited power over foreign affairs assigned to the federal government by Justice Sutherland in the Curtiss-Wright case, a case which has been much misunderstood and the dictum of which has been vigorously criticized. I ventured to review Mr. McClure's book, and came to the conclusion that the dilapidation of the Constitution which he foreshadowed was unjustified by the facts and harmful to the United States. While Mr. McClure's views met a somewhat mixed reception in the Department of State, there is some evidence that his proposals appealed to certain groups.