Executive Agreements For President

Congress has tried to limit the practice of meeting secret executive agreements. In 1969 and 1970, a subcommittee of the Senate Foreign Relations Committee learned that U.S. presidents had negotiated important covert agreements with South Korea, Laos, Thailand, Ethiopia, and Spain, as well as other nations. In response, Congress passed the Case Act of 1972, which required the Secretary of State to transmit to Congress, within sixty days, the text of “an international agreement, except a treaty,” in which the United States participates. If the president decided that the publication would endanger national security, he could forward it to the Senate Foreign Relations Committee and the House Foreign Affairs Committee, under an incommunicado publication order that can only be withdrawn by the president. But presidents from Nixon to Clinton ignored or circumvented the statute, and Congressional efforts were largely ineffective. The presidents highlighted four sources of constitutional authority: (1) the president`s duty, as executive chief, to represent the nation in foreign affairs; (2) the power to receive ambassadors and other public ministers; (3) authority as Commander-in-Chief; and (4) the obligation to “ensure that laws are faithfully enforced.” These claims are particularly open to results, no doubt contrary to the powers of Congress, and they weigh on the scope of credibility. It is quite possible that, in the context of military hostilities authorized by Congress, the President, in his capacity as Commander-in-Chief, would find it desirable to conclude a ceasefire agreement with an enemy, when this would be subject to congressional control. It may also be necessary, in the military context, for the president to oppose an agreement on the protection of troops or the sending of troops. But it is difficult to justify unilateral executive agreements on the basis of these other claims. President Dwight D.

Eisenhower rejected the change on the grounds that it would impede the presidency`s conduct of foreign policy. In a letter to his brother Edgar, a lawyer supporting the resolution, Eisenhower said it would “paralyze the executive branch in such a way that we will be powerless in world politics.” The Eisenhower government was well aware that most Republicans accepted the proposal and so their opposition was carefully measured. . . .

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