Executive Agreements: A Study of the Executive in the Control of the Foreign Relations of the United States
![handle is hein.journals/illlr35 and id is 385 raw text is: EXECUTIVE AGREEMENTS: A STUDY OF THE EXECUTIVE
IN THE CONTROL OF THE FOREIGN RELATIONS
OF THE UNITED STATES
David M. Levitan*
W HEN the President of the United
States announced that he had
concluded an agreement with
Great Britain to trade fifty over-age
American destroyers for the right to
establish military bases on English
islands in the Atlantic, attention was
focused on the control of the executive
in the foreign affairs of the United
States, but the authority to enter into
Executive Agreements, so dramatically
exercised in the destroyer-naval base
deal, has been the occasion for more
than nine hundred less spectacular
agreements.'
L Treaties and Agreements
It would be futile to attempt to estab-
lish the Constitutional competence of
the executive to enter into international
agreements without first establishing
the capacity of the United States as a
government to enter into agreements
other than treaties. With regard to the
power of the United States to enter into
* B. A., 1936, M. A., 1937, Northwestern Uni-
versity, Ph.D., 1940, University of Chicago.
Assistant in Political Science, University Col-
lege, the University of Chicago; Instructor
in Social Sciences, Englewood Junior College.
' The main literature on the subject is: J. B.
Moore, Treaties and Executive Agreements
(1905), 20 Pol. Science Quarterly 385; 5 Moore,
Digest of International Law (1906) 210; Crandali,
Treaties, Their Making and Enforcement (2d
ed. 1918) 102-140; Barrett, International Agree-
ments Without the Advice and Consent of the
treaties, the Constitution is explicit. For
a treaty to become the law of the land,
it must be submitted by the President
to the Senate for advice and consent
by two-thirds of the members present,
and ratified and proclaimed by the Pres-
ident. If treaties were the only instru-
ments of international agreement known
to the framers, then, even if all evidence
were to lead one to the conclusion that
the executive was viewed as the proper
organ for the control of foreign relations,
there would appear to be no way of up-
holding the legality of agreements en-
tered into by the executive but not rati-
fied by the Senate. It therefore be-
comes necessary to determine whether
the framers contemplated international
agreements other than treaties.
An examination of the Constitution
reveals a consistent use of terms. The
term treaty is used when referring to
the negotiations of the national govern-
ment2 and to th jurisdiction of the judi-
Senate (1905) 15 Yale L. J. 63; Hyde, Agreements
of the United States Other Than Treaties (1905)
17 Greenbag 229; Corwin, The President's Con-
trol of Foreign Relations (1917) 116-125; Wright,
The Control of American Foreign Relations
(1922) 23-246; Mathews, American Foreign Re-
lations Conduct and Policies (1928) 431-446; W.
Foster, The Treaty-Making Power Under the
Constitution, 10 Yale L. J. 77 (1901); Barnes
Executive Discretion in the Conduct of Foreign
Relations (1937) 31 A. J. I. L. 289.
2 U. S. Const., art. 11, §2, el. 2.
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Executive Agreements: A Study of the Executive in the Control of the Foreign Relations of the United States
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