The following post is from Tentative Draft No. 1* of the Restatement of the Law Fourth, The Foreign Relations Law of the United States: Part III International Law, Chapter 2. Executive Agreements and Nonbinding Instruments.
Introductory Note: Article II of the Constitution provides that the President has the power to make treaties “by and with the Advice and Consent of the Senate . . . provided two thirds of the Senators present concur.” U.S. CONST. art. II, § 2. That is the only provision in the Constitution specifically addressing how the federal government is to make international agreements. Another provision of the Constitution, however, makes clear that the Article II process is not required for all agreements with foreign nations. Article I, Section 10, prohibits U.S. States from entering “any Treaty, Alliance, or Confederation,” but it says that they may enter into an “Agreement or Compact . . . with a foreign Power” with “the Consent of Congress.” U.S. CONST. art. I, § 10. Although that provision concerns agreements by U.S. States, its distinction between a “treaty” and an “agreement or compact” may suggest that the Article II treaty clause, which by its terms applies only to treaties, might not govern all international agreements concluded by the federal government. See § 104 (discussing international agreements made by U.S. States).
From early in U.S. history, the federal government has concluded some international agreements through processes other than the Article II senatorial advice-and-consent process. In 1792, for example, Congress authorized the Postmaster General to conclude agreements with the postmasters in other nations concerning the delivery of mail. See Act of Feb. 20, 1792, ch. 7, § 26, 1 Stat. 232, 239. The first such postal convention—and thus the first congressional-executive agreement—appears to have been concluded later that same year between the United States and Great Britain (with respect to Canada). Wallace McClure, International Executive Agreements: Democratic Procedure Under the Constitution of the United States 38-39 (1941). In 1813, President James Madison made an agreement with Great Britain concerning the treatment and exchange of prisoners during the War of 1812. See Cartel for the Exchange of Prisoners of War, U.S.-Gr. Brit., May 12, 1813, 2 Treaties and Other International Acts of the United States of America 557 (Hunter Miller ed., 1931). Such “non-Article II treaty” agreements are generally referred to in U.S. law as “executive agreements.” Under international law, however, these agreements are considered to be “treaties,” which are defined by the Vienna Convention on the Law of Treaties art. 2(1)(a), May 23, 1969, 1155 U.N.T.S. 331, as “international agreement[s] concluded between States . . . and governed by international law.” Under international law, Article II treaties and executive agreements have the same status. See § 321.
The practice of concluding executive agreements has grown dramatically over time. According to one widely cited calculation, in the first 50 years after the adoption of the Constitution, the federal government concluded 60 Article II treaties and 27 executive agreements. See McClure, supra, at 4. By contrast, in the 50-year period from 1939 to 1989, there were, according to a U.S. Department of State calculation, 702 Article II treaties and 11,698 executive agreements. See Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate 39 (Comm. Print 2001) [hereinafter CRS Study]. In recent years, the senatorial advice-and-consent process has been used even less often to conclude international agreements, and the United States has instead concluded most binding international agreements as executive agreements. See Cong. Rsch. Serv., International Law and Agreements: Their Effect Upon U.S. Law 8 (July 13, 2023) (“The great majority of international agreements that the United States enters into are not treaties but executive agreements—agreements entered into by the executive branch that are not submitted to the Senate for its advice and consent.”).
In addition to concluding binding executive agreements, presidents and the executive branch also frequently conclude instruments with other nations and with international institutions that are intended to be nonbinding as a matter of both domestic and international law. Those nonbinding instruments take many forms and address a wide variety of subjects. See id. at 15-16; § 325.
The extent to which certain agreements must be submitted to the Senate under Article II is unclear and contested and has principally been determined by the political branches through their interactions rather than by the courts. Cf. CRS Study, supra, at 25 (“The extent to which executive agreements can be utilized instead of treaties is perhaps the fundamental question in studying the Senate role in treaties, and is by no means wholly resolved.”). When courts have addressed matters relating to executive agreements, they have tended to give significant weight to historical practice when the practice is longstanding and appears to have been accepted by both Congress and the executive branch. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 678-686 (1981).
To be lawful, executive agreements must be authorized, either expressly or implicitly, by the Constitution, statutes, treaties, or some combination thereof. Many observers refer to categories of executive agreements based on their sources of authority: those authorized or approved by Congress in statutes, those authorized by treaties, and those authorized solely by the independent constitutional authority of the President. See, e.g., CRS Study, supra, at 5. The U.S. Department of State’s internal guidance for concluding agreements is organized around these categories. See U.S. Dep’t of State, 11 Foreign Affairs Manual § 723. Consistent with that approach, this Chapter discusses these three categories separately: § 322 addresses “Agreements Authorized or Approved by Congress”; § 323 addresses “Agreements Authorized by Treaty”; and § 324 addresses “Agreements Based on the President’s Independent Constitutional Authority.” In considering these categories, however, it is important to keep in mind that the lines between them are not always sharp, reasonable observers will sometimes classify agreements differently, and some agreements are supported by multiple sources of authority.
The vast majority of executive agreements are based at least in part on statutory authority. See CRS Study, supra, at 41 (describing a study finding that “88.3 percent of international agreements reached between 1946 and 1972 were based at least partly on statutory authority, 6.2 percent on treaties, and 5.5 percent solely on executive authority”). For the most part, rather than attempting to restrict the use of executive agreements, Congress has instead insisted on transparency by the executive branch. To that end, since 1972, the Case-Zablocki Act has required the Secretary of State to report to Congress and to publish executive agreements, and Congress has amended the Act a number of times in an effort to improve compliance. See 1 U.S.C. § 112b.
In reporting agreements to Congress, the Secretary has long provided citations of the legal authority that, in the Secretary’s view, provide authorization for the agreements. Amendments to the Case-Zablocki Act that took effect in 2023 require more detailed reporting of the Secretary’s descriptions of legal authority and the publication of that information. Those amendments also require, for the first time, the reporting and publication of some nonbinding instruments. See § 326.
[On occasion, a decision is made to suspend, terminate, or withdraw from an executive agreement. In practice, presidents often assert the authority to act for the United States in taking those actions. See § 327; see also § 313 (discussing termination of Article II treaties).]
*This text will be presented to ALI membership at the 2026 Annual Meeting in Tentative Draft No. 1, and is not yet approved. After discussion at the Meeting, membership may vote to approve the material presented subject to the discussion and the usual editorial prerogative. Tentative Drafts may be approved in whole or in part, and may also require edits beyond general editorial changes that require the draft to be presented to the Council and membership again.