Congress vs. the President: Treaties and Executive Agreements

With 2/3 Senate approval, the Constitution gives the President exclusive powers to appoint ambassadors and make treaties. The president can make treaties with the consent and advice of the Senate but it’s the president’s choice how much input they want - President Jackson often involved the Senate whereas President Wilson didn't. Its overlapping nature (domestic and foreign) makes it difficult to tell when Senate advice is needed. During the Panama-Canal Treaty, Senator Robert Byrd and others went to Panama to negotiate changes with General Torrijos; could have been avoided had the President evolved the Senate(257)

The Commerce Department and American Embassies encourage private groups to negotiate with foreign entities. Presidential autonomy of foreign affairs is further compromised by the ‘fast track’ legislative process — bills automatically get introduced to Congress. The Logan Act, however, disallows individuals to have unauthorized correspondence with foreign governments to influence American policy. The treaty-making process is a collaboration of the legislative with the executive. During the Louisiana Purchase, Jefferson had to include both houses for the appropriation of funds. (257) The legislation can sometimes serve as a substitute for treaty-making. The Senate failed to ratify the treaty for the Texas Annexation so President Tyler took it to the House for a majority vote. (258). 

The Spanish Bases Treaty was replaced with an executive agreement in 1982. The Senate held that what resources get allocated depends on the Congress. The constitution doesn’t specify anything about treaty termination. Congress passed a bill stating that Mutual Defence Treaty couldn’t be terminated without legislative consent but Carter waited till Congress was out of session-the courts held that lawmakers have no role in treaty termination. (263)

Conflict can arise when Congress and President reinterpret treaties differently. In 1988, the Senate added an amendment to the INF treaty stating that the treaty can only be interpreted in a way that is mutually understood by both branches. (267) If the President chooses a varied interpretation, they can appeal the amendment to the Senate. As seen in the Destroyers Bases Deal of 1940 with Great Britain, executive agreements are often used to circumvent Senate involvement.

The Constitution gives the president 4 reasons to enter into an executive agreement:

1) to represent the nation

2) receive foreign ambassadors

3) authority as Commander in Chief

4) proper execution of the laws

The recognition of nations can encroach on Congressional power - President Jackson refused to acknowledge the independence of Texas even though the Congress disagreed out of fear of war with Mexico. (270)

To avoid secrecy of executive agreements, the Senate passed the Case Act stating that the Secretary of State must intimate the Congress of any international agreements barring treaties. They also held that the level of US military or economic involvement is contingent on funds allocated by Congress.

Sources: Constitutional Conflicts Between Congress and the President - Louis Fisher