The Domestic Obligation of Executive Agreements

The Domestic Obligation of Executive Agreements

When the President enters into an executive agreement, what sort of obligation is thereby imposed upon the United States? That international obligations of potentially serious consequences may be imposed is obvious and that such obligations may linger for long periods of time is equally obvious.442 But the question is more directly pointed to the domestic obligations imposed by such agreements; are treaties and executive agreements interchangeable insofar as domestic effect is concerned?443 Executive agreements entered into pursuant to congressional authorization and probably through treaty obligations present little doctrinal problem; those arrangements by which the President purports to bind the Nation solely on the basis of his constitutional powers, however, do raise serious questions.

442 In 1918, Secretary of State Lansing assured the Senate Foreign Relations Committee that the Lansing-Ishii Agreement had no binding force on the United States, that it was simply a declaration of American policy so long as the President and State Department might choose to continue it. 1 W. Willoughby, supra at 547. In fact, it took the Washington Conference of 1921, two formal treaties, and an exchange of notes to eradicate it, while the “Gentlemen’s Agreement” was finally ended after 17 years only by an act of Congress. W. McClure, supra at 97, 100.

443 See E. Byrd, supra at 151-57.

Initially, it was the view of most judges and scholars that executive agreements based solely on presidential power did not become the “law of the land” pursuant to the Supremacy Clause because such agreements are not “treaties” ratified by the Senate.26 The Supreme Court, however, found another basis for holding state laws to be preempted by executive agreements, ultimately relying on the Constitution’s vesting of foreign relations power in the national government. A different view seemed to underlie the Supreme Court decision in B. Altman & Co. v. United States,445 in which it was concluded that a jurisdictional statute reference to “treaty” encompassed an executive agreement. The idea flowered in United States v. Belmont,446 where the Court, in an opinion by Justice Sutherland, following on his Curtiss-Wright447 opinion, gave domestic effect to the Litvinov Agreement. At issue was whether a district court of the United States was correct in dismissing an action by the United States, as assignee of the Soviet Union, for certain moneys which had once been the property of a Russian metal corporation the assets of which had been appropriated by the Soviet government. The lower court had erred, the Court ruled. The President’s act in recognizing the Soviet government, and the accompanying agreements, constituted, said the Justice, an international compact which the President, “as the sole organ” of international relations for the United States, was authorized to enter upon without consulting the Senate. Nor did state laws and policies make any difference in such a situation, for while the supremacy of treaties is established by the Constitution in express terms, yet the same rule holds “in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States.”448

In United States v. Pink,449 decided five years later, the same course of reasoning was reiterated with added emphasis. The question here involved was whether the United States was entitled under the Executive Agreement of 1933 to recover the assets of the New York branch of a Russian insurance company. The company argued that the decrees of confiscation of the Soviet Government did not apply to its property in New York and could not consistently with the Constitution of the United States and that of New York. The Court, speaking by Justice Douglas, brushed these arguments aside. An official declaration of the Russian government itself settled the question of the extraterritorial operation of the Russian decree of nationalization and was binding on American courts. The power to remove such obstacles to full recognition as settlement of claims of our nationals was “a modest implied power of the President who is the ‘sole organ of the Federal Government in the field of international relations’.... It was the judgment of the political department that full recognition of the Soviet Government required the settlement of outstanding problems including the claims of our nationals.... We would usurp the executive function if we held that the decision was not final and conclusive on the courts.”

26 E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir. 1919); 1 W. WILLOUGHBY, supra, at 589. The State Department held the same view. 5 G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 426 (1944).

445 224 U.S. 583 (1912).

446 301 U.S. 324 (1937).

447 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

448 299 U.S. at 330-32.

449 315 U.S. 203 (1942).

“It is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy.... But state law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement.... Then, the power of a State to refuse enforcement of rights based on foreign law which runs counter to the public policy of the forum . . . must give way before the superior Federal policy evidenced by a treaty or international compact or agreement... .”

“The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would ‘imperil the amicable relations between governments and vex the peace of nations.’ ... It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government has diligently endeavored to establish... .”

“No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to State laws or State policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts.”450

450 315 U.S. at 229-34. Chief Justice Stone and Justice Roberts dissented.

Belmont and Pink were reinforced in American Insurance Association v. Garamendi.27 In holding that California’s Holo- caust Victim Insurance Relief Act was preempted as interfering with the Federal Government’s conduct of foreign relations, as expressed in executive agreements, the Court reiterated that “valid executive agreements are fit to preempt state law, just as treaties are.”28 The preemptive reach of executive agreements stems from “the Constitution’s allocation of the foreign relations power to the National Government.”29 Because there was a “clear conflict” between the California law and policies adopted through the valid exercise of federal executive authority (settlement of Holocaust-era insurance claims being “well within the Executive’s responsibility for foreign affairs”), the state law was preempted.30

27 539 U.S. 396 (2003). The Court’s opinion in Dames & Moore v. Regan, 453 U.S. 654 (1981) was rich in learning on many topics involving executive agreements, but the preemptive force of agreements resting solely on presidential power was not at issue, the Court concluding that Congress had either authorized various presidential actions or had long acquiesced in others.

28 539 U.S. at 416.

29 539 U.S. at 413.

30 539 U.S. at 420.

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Last modified: June 9, 2014