Treaties and Executive Agreements in the United States: Their separate roles and limitations

283 Pages·1960·11.24 MB·English

by  Elbert M. Byrd Jr. (auth.)

TREATIES AND EXECUTIVE
AGREEMENTS
IN THE UNITED STATES
TREATIES
AND
EXECUTIVE AGREEMENTS
IN THE
UNITED STATES
Their separate roles and limitations
BY
ELBERT M. BYRD, JR.
University of Maryland
WITH A FOREWORD BY
ELMER PLISCHKE
Professor and Head
Department of Government and Politics
University of Maryland
•
MAR TINUS NIJHOFF / THE HAGUE / 1960
For
MARGARET GORMAN BYRD
ISBN 978-94-015-0435-5 ISBN 978-94-015-1073-8 (eBook)
DOl 10.1007/978-94-015-1073-8
Copyright 1960 by Martinus NijhofJ. The Hague. Netherlands
Sojtcover reprint of the hardcover 1st edition 1960
All rights reserved. including the right to translate or to
reprOdtlCe this book or parts thereof in any form
FOREWORD
Much of the legal system existing among the members of the
society of nations has its origin in treaties and agreements. A
substantial share of the mutually-binding precepts governing
the relations among independent nations flows from the engage
ments to which they subscribe. By crystallizing juridical rela
tionships, this world-wide network of compacts helps to stabilize
international affairs, and its growth and development are essen
tial in the absence of an acceptable alternative law-creating in
stitution.
From the standpoint of international practice, independent
states are empowered to conclude commitments on virtually any
subject of mutual interest. Not in all cases, however, does the
national government of a country possess internally a treaty
making authority coextensive with that of the state under inter
national law. Constitutional prescriptions may restrict the range
of subjects respecting which treaties may be negotiated, and in
addition, as in the case of the United States, the constitutive act
may confine the government to a prescribed method of conclud
ing international treaties.
The problem of American treaty authority and procedure has
been under analysis and serious debate since the United States
constitutional system was established in the late eighteenth cen
tury. As this country increased its participation in international
affairs and augmented the network of international arrangements
to which it became a party, this fundamental problem has be
come increasingly significant.
Because of constitutional restrictions respecting the treaty
process, the Government of the United States has evolved a
number of practices to facilitate its participation in international
affairs. The chief of the devices that has come to be relied upon
VI FOREWORD
is the employment of the executive agreement. While the latter
may be viewed as being indistinguishable from the treaty exter
nally, it is differentiated from the formal treaty internally.
Illustrating the development of United States practice, this
country was party to sixty treaties but only twenty-seven publish
ed executive agreements during the first half century of its
independent history. By the outbreak of World War II, the ratio
was approximately eight hundred treaties and twelve hundred
agreements. However, in the fifteen years from 1940 to 1955
the United States subscribed to only one hundred and thirty
nine treaties, as compared with nearly ninet~en hundred and
fifty published executive agreements. Thus, of the more than
four thousand international engagements, the cumulative ratio
was not quite two agreements per treaty by the time of the
Second World War, but changed to approximately fourteen
agreements to one treaty after 1939.
In recent years the Government of the United States has
utilized the executive agreement process for such varied subjects
as affiliation with international organizations, the establishment
of United States military missions abroad, collective security
matters, status of forces arrangements, military occupation and
civil affairs, commercial aviation, cooperative educational, health,
and agricultural programs, development of the use of atomic
energy for civil purposes, and especially foreign assistance. The
latter, as a matter of fact, has been the subject of more than one
fourth of all international engagements concluded by this
country in the post-World War II years.
As noted, and particularly because of this trend, the problem
of the nature of treaties and executive agreements in American
constitutional practice, and the validity of the employment of
the executive agreement in the administration of international
affairs, have evoked considerable critical discussion in the United
States in recent years, culminating in an extensive public debate
in Congress and in the press respecting a number of proposals to
amend the treaty provisions of the Constitution. Nevertheless,
despite the amount of published material bearing on the subject,
it would appear that the sheer bulk of it has occasioned much
confusion.
The issue can scarcely be intelligently understood without a
FOREWORD VII
careful distillation and assessment of the best of these materials.
Dr. Elbert M. Byrd, in this study, has undertaken to review,
analyze, and synthesize these materials, including the review of
pertinent United States court pronouncements. He has produced
a thoughtful evaluation of the fundamental principles involved,
as well as a careful legal analysis of the nature and use of the
executive agreement in contemporary United States external
and internal practice.
ELMER PLISCHKE
Professor and Head
Department of Government and Politics
University of Maryland
TABLE OF CONTENTS
Foreword by ELMER PLISCHKE V
I. INTRODUCTION 1
II. THE WORDS OF THE CONSTITUTION 7
III. 'THE FOUNDING FATHERS ON POWERS FOR REGULATING
FOREIGN AFFAIRS 16
The Constitutional Convention 16
The Federalist Papers 20
Pamphlets Pro and Con Adoption of the Constitution 23
The State Ratifying Conventions 28
The Jay Treaty Debates 35
The Louisiana Purchase Treaty 59
Summary 65
IV. THE TREATIES MADE BY THE FOUNDING FATHERS 68
v. TREATIES AND EXECUTIVE AGREEMENTS AS VIEWED BY
THE SUPREME COURT 80
Treaties 80
Executive Agreements 110
Summary 121
VI. THE TREATY POWER 123
Extent ofthe Treaty Power 123
Limitations on the Treaty Power 127
Occasion for Use ofthe Treaty Power 132
The Senator as a State's Ambassador with Plenary Powers 136
Termination of Treaties 143
Summary 145
VII. JOINT CONGRESSIONAL-EXECUTIVE ACTIONS 148
Methods and Titles 148
, Degree of Interchangeability with Treaties 151
Occasion for Use of the Congressional-Executive Agree-
ment 157
X TABLE OF CONTENTS
Termination of Congressional-Executive Agreements 162
Summary 163
VIII. PRESIDENTIAL ACTIONS 166
Methods and Titles 166
In Lieu of Treaty or Congressional Approval 168
Occasion for the Use of Presidential Agreements 173
Termination 176
Summary 177
IX. FOREIGN AFFAIRS IN A FEDERAL SYSTEM 180
Comparison with Unitary System 180
United States Government Compared with Other
Federal Governments 181
Plenary Powers of Senators 188
Intricacy and Excellence of the United States Constitu-
tional System 192
X. CONCLUSIONS 195
Appendices
A: Major Constitutional Provisions relating to Foreign
Affairs 207
B: Excerpts from the Federalist Papers 211
C: Consular Convention with France 219
D: The Jay Treaty 224
E: Excerpts from New Orleans V. United States, 10 Peters
662 (1836) 238
F: Excerpts from Reid V. Covert, 354 U. S. 1 (1957) 242
G: Department of State Circular Number 175 249
Bibliography 254
Index 268
CHAPTER I
INTRODUCTION
The rise of the United States of America into a most prominent
place in world affairs has been naturally attended by an increas
ing number of agreements with other countries. As their number
increases, more attention becomes focused upon them.
This attention is not due primarily to the importance of these
agreements as they affect relations with other countries. To the
typical American the state of foreign affairs is not closely known,
the ripe time and conditions for commencing negotiations for
agreements are highly problematical, and the intricacies and
niceties of negotiations and international law are a complete maze.
Much confusion is felt in this regard, but it is a confusion little
lamented. This is not because there is indifference to the nation's
course in foreign affairs, but because there is rio overriding, direct
personal concern; any individual will fare in these matters very
much the same as all other individuals fare.
In many respects, however, these agreements become domestic
law and are enforceable in the domestic courts. Cases in the courts
are matters of conflict between juristic persons, and consequently
an individual may have occasion to become very much directly con
cerned personally. Where the foreign operations and effects of a
greements may be shrouded in acceptable confusion, a like confu
sion may become well nigh intolerable in the realm of domestic law.
Resulting from this confusion has been a most pressing contro
versy in recent history over the question of whether or not there
are any limitations on the federal government's treaty power; a
question which, in view ofthe climate of opinion regarding United
States traditional governmental theory, presents something of a
paradox. This problem has been compounded by the various
types of international agreements in United States law, along
with the varying procedures by which they are consummated or
2 INTRODUCTION
become legally binding within the framework of domestic govern
mental machinery. There is confusion, for example, over whether
there is any difference as to scope between treaties and executive
agreements. The results can become frightening when extremities
are joined in a sort of syllogism: treaties are unlimited; treaties
and executive agreements are interchangeable; ergo, the power
of the President or some appointed underling is wholly without
legal limit.
This terrifying conclusion is used principally in political cam
paigns, and is not to be found so baldly stated in authoritative
and responsible works on the subject, but since the beginning of
U. S. constitutional history there has existed a latent source of
confusion, not only in the Constitution itself but in the writings
of its Founders, in Supreme Court opinions, and consequently in
the texts of commentators on the matter. There have been,
therefore, rational and legal bases for a limited amount of the
confusion. This confusion has reached and thoroughly penetrated
the scholarly world. Although statements on the subject of limit a
tions on the treaty power treat it variously, there appears not to
be a modern text on American Government which professes to
reveal the limitations on the treaty power or which will state an
overall rule on the difference between treaties and executive
agreements as to the extremities of subject matter with which
they can deal. In the same vein, many respected professors have
often admitted inability to point to the outer limits of the treaty
power, and on the various instruments have thrown up their
hands with the allowance that the difference between treaties and
executive agreements is that treaties are called treaties and
executive agreements are called executive agreements.
Some texts, for example, merely quote statements from a
Supreme Comi: opinion, without noting the source, stating in
essence that power in the field of foreign affairs does not depend
on the Constitution but is derived inherently from the fact of
national existence; and "power in the field of foreign affairs" is
not differentiated from the treaty power.l The statement in this
.1 See, for example, Charles C. Rohlfing, Edward W. Carter, Bradford W.
West, and John G. Hervey, Business and Government (Brooklyn: The Founda
tion Press, Inc., 1953), pp. 16-18; James M. Bums and Jack W. Peltason,
Government By The People (third edition; Englewood Cliffs, N. J.: Prentice
Hall. Inc., 1957). pp. 89, 93-94; and 'Oscar Svarlein, An Introduction To The