Glen S. Krutz and Jeffrey S. Peake argue that the preference for executive agreements is the result of a symbiotic development of executive and legislative powers, and that for the United States to survive in a complex and ever-changing global environment and maintain its status as a world power, the United States must meet its international obligations quickly and confidently. Members of Congress agree that executive agreements allow each branch to function more efficiently. At the same time, the House of Representatives continues to oversee certain policy areas, and presidents still submit to the Senate the majority of key international obligations in the form of treaties. During the first half century of its independence, the United States was involved in sixty treaties, but only twenty-seven published executive agreements. By the beginning of the Second World War, about 800 treaties and 1,200 executive agreements had been concluded. Between 1940 and 1989, the nation concluded 759 treaties and 13,016 published executive agreements. Cumulatively, the United States was a party to 890 treaties and 5,117 executive treaties in 1989. By comparison, in the first 50 years of its history, the United States concluded twice as many treaties as executive treaties. During the 50 years from 1839 to 1889, some executive treaties were concluded as treaties. From 1889 to 1939, nearly twice as many executive treaties were concluded.
Since 1939, executive agreements have covered more than 90% of international agreements concluded. 389 [footnote 447] The decision in Dames & Moore v. Regan, 453 USA 654 (1981) is rich in knowledge on many topics concerning executive agreements, but the Court`s conclusion that Congress had either approved various measures of the president or had long resigned itself to others, leaves little to our specific question of this section. The controversy surrounds the president`s legal authority to make executive arrangements. The practice of unilateral presidential agreements with foreign nations is at odds with the constitutional emphasis on joint decision-making and the drafters` understanding of the scope and extent of treaty power, which Hamilton wrote in a letter under the pseudonym „Camillus“ as „competent for all provisions that might require the requirements of national affairs; responsible for the conclusion of covenant treaties, trade treaties, peace treaties and all other types of conventions common to nations. And it was emphatic for this reason that it was so carefully guarded; the cooperation of two-thirds of the Senate with the President, who are required to conclude any treaty. The text of the Constitution does not mention executive agreements. Moreover, no reference has been made to it in the Constitutional Convention or in the State`s ratification conventions. The Federalist Papers are also silent on this issue. There is therefore no support in the architecture of the Constitution for the use of executive agreements. But their use has flourished; The presidents claim independent constitutional power to do so, and the judiciary has confirmed these presidential claims to the authority.
The question of constitutional authority, which gives presidents a unilateral ability to enter into executive agreements, must be distinguished from what would rightly be called legislative-executive agreements, to which Congress has authorized the president and which generally cause little controversy, if only because they are more constitutionally desirable than unilateral agreements. Dependence on treaty power has declined since World War II, with presidents increasingly turning to the use of executive agreements as a means of ensuring unilateral control of U.S. foreign relations. When the president acts unilaterally, the agreement is called the „sole executive agreement.“ If the president acts with the approval of a simple majority of both houses of Congress, the agreement is called a „legislative-executive agreement.“ Presidents have „appropriated“ the discretion to decide whether to conclude an international agreement as a treaty, as a single executive agreement or in the form of a legislative-executive agreement. The Speaker`s decision usually depends on political factors, including the likelihood of obtaining Senate approval. Presidents have often chosen to exclude the Senate by concluding controversial and historic international pacts through executive agreements, including the Basic Destroyer Agreement with Britain in 1940, the Yalta and Potsdam Agreement of 1945, the Vietnam Peace Agreement of 1973 and the Sinai Agreement of 1975. . .
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