November 2007, Volume 93, Issue 7
Domesticating Sole Executive Agreements
by Bradford R. Clark
93 Va. L. Rev. 1573 (2007)
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At a time when many question the wisdom and constitutionality of unchecked executive power, the Supreme Court has recently recognized virtually unlimited presidential power to make “sole executive agreements” with the force of federal law. Although such agreements with foreign nations are neither approved by the Senate as a “Treaty” nor enacted by Congress as a “Law,” the Court has asserted that they are generally “fit to preempt state law, just as treaties are.” To be sure, Presidents have long used sole executive agreements as a means of implementing their underlying constitutional and statutory authority. The Court’s novel conception of such agreements as an independent source of federal power, however, is in tension with the Supremacy Clause, which recognizes only the “Constitution,” “Laws,” and “Treaties” of the United States as the supreme law of the land. Significantly, each of these sources of law must be adopted by the Senate acting in conjunction with one or more additional actors. Allowing the President to use sole executive agreements to override preexisting legal rights circumvents the political and procedural safeguards built into the Constitution. The Court has attempted to justify its novel approach by invoking two well-known historical precedents: executive agreements settling claims by U.S. nationals against foreign sovereigns, and an executive agreement recognizing the Soviet Union and assigning its claims against U.S. nationals to the United States. Taken in historical context, however, neither precedent supports a freestanding presidential power to make sole executive agreements with the force of federal law.
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