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Executive Agreement Origin

In the summer of 1787, delegates to the Constitutional Convention debated the structure and responsibilities of a new legislative body. One of the questions they asked was whether the power of contracting lies within the legislative or executive department? Depending on the statutes of the federal government, a contract could be concluded with the agreement of nine of the thirteen states or two-thirds. Some delegates, such as Charles Pinckney of South Carolina, insisted that the Senate, where each state is represented on an equal footing, should have exclusive power to enter into contracts. Alexander Hamilton argued that the executive should exercise powers over external relations and should therefore have the power to enter into contracts “with the Council and the approval of the Senate.” In the end, Hamilton`s argument proved persuasive. Congressional efforts to curb the practice of executive agreements and stem the tide of unilateralism have been largely unsuccessful. The first and most important effort came in 1951, when Senator John Bricker proposed a constitutional amendment to limit the use and impact of executive agreements and treaties within the United States. Bricker Amendment supporters, including the leaders of the American Bar Association, found virtue in the proposal for a variety of reasons. Some, as Alexander DeConde explained, “have become angry at executive agreements like Yalta`s” and have tried to reduce the president`s unilateralism on foreign policy. Others feared the impact of treaties such as the United Nations Charter, the Genocide Convention and the United Nations draft peace on human rights within the United States. Still others supported them as a useful “isolationist” response to “the internationalism of Franklin Roosevelt and Harry Truman.

The Bricker Amendment, adopted in June 1953 by the Senate Judiciary Committee, upheld the constitutional supremacy over treaties; Necessary enforcement measures “that would be valid without a contract” before a treaty can be concluded within the United States; and gave Congress the power to oversee all executive agreements. Congress has tried to limit the practice of creating secret executive agreements. A subcommittee of the Senate Relations Committee learned in 1969 and 1970 that the United States.

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