The ability of the United States to enter into agreements with other nations is not exhausted in contractual power. The Constitution recognizes a distinction between “contracts” and “agreements” or “compacts,” but does not indicate the difference.438 The differences that may have been more obvious have been largely erased in practice in recent decades. Once a son-in-law of the family, where treaties were preferred descendants, the executive agreement exceeded the number and perhaps the international influence of the formally signed treaty, subject to Senate ratification and announced at ratification. The question of whether trade agreements could be concluded constitutionally as agreements between Congress and the executive branch and not as treaties arose when considering the laws of application of the Uruguay Round. The question was originally raised because of the perceived effect of the agreements on states26.26 The issue also arose in a legal challenge to NAFTA, which argued that the non-application of the treaty procedure had rendered the agreement and its rules of application unconstitutional. Made in the USA Foundation v. United States, a Federal District Court of Alabama in July 1999, that “the President had the power to negotiate and conclude nafta in accordance with his executive power and according to the authority given to him by Congress in accordance with the terms of the Omnibus Trade and Competitiveness Act of 1988 … and Section 151 of the Trade Act of 1974 … and as approved by NAFTA law. 27 In the Tribunal`s view, the foreign trade clause, combined with the necessary and correct clause and the foreign policy power of the President under Article II of the President, provided a sufficient constitutional basis for the agreement. The court tentatively established that institutional but not individual applicants were entitled to appeal and that political doctrine did not prevent them from deciding the merits.
In the United States, executive agreements are made exclusively by the President of the United States. They are one of three mechanisms through which the United States makes binding international commitments. Some authors view executive agreements as treaties of international law because they bind both the United States and another sovereign state. However, under U.S. constitutional law, executive agreements are not considered treaties within the meaning of the contractual clause of the U.S. Constitution, which requires the Council and the approval of two-thirds of the Senate to be considered a treaty. 439 CRS Study, xxxiv-xxxv, supra, 13-16. Of course, not all of these agreements are published, either for reasons of national security or confidentiality, or because the purpose is trivial. In an exchange of hearings in 1953, Foreign Minister Dulles estimated that about 10,000 executive agreements had been concluded under the NATO treaty. “Every time you open a new Privy, you have to have an executive agreement.” Hearing on S.J.
Res. 1 and S.J. Res. 43: Before a Subcommittee of the Senate Judiciary Committee, 83d Congress, 1st Sess. (1953), 877. In the United States, executive agreements are binding at the international level when negotiated and concluded under the authority of the President on foreign policy, as commander-in-chief of the armed forces or from a previous congressional record.