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. The U.S. Constitution does not explicitly give a president the power to enter into executive agreements. However, it may be authorized to do so by Congress or may do so on the basis of its foreign relations management authority. Despite questions about the constitutionality of executive agreements, the Supreme Court ruled in 1937 that they had the same force as treaties. As executive agreements are made on the authority of the president-in-office, they do not necessarily bind his successors.
Compare Bradford C. Clark, Domesticating Sole Executive Agreements, 93 Va. L. Rev. 1573, 1661 (2007) (arguing that the text and history of the Constitution support the position that treaties and executive agreements are not interchangeable, and also argue that the supreme clause should be read in order to avoid, in general, exclusive executive agreements being contrary to existing legislation); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1249-67 (1995) (on the grounds that the contractual clause is the exclusive means for Congress to approve important international agreements); John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional Executive Agreements, 99 Me. L. Rev.
757, 852 (2001) (on the grounds that treaties are the constitutional form required for Congress to approve an international agreement on measures outside the constitutional powers of Congress, including human rights, political/military alliances and arms control issues, but are not necessary for agreements of measures within the competence of Congress, such as the International Trade Agreement. B). With third restatement, see 1, 303 n.8 (“Previously, it was argued that certain agreements could only be concluded in the form of contracts under the constitutional procedure. The scientific opinion rejected this view.” Henkin, supra note 22, at 217 (“Whatever its theoretical advantages, it is now widely accepted that the Executive Agreement of Congress is available for broad use, including for general use, and is a complete alternative to a contract. . . . “); Hathaway, supra note 45, at 1244 (affirms that “the weight of scientific opinion” has been regarded since the 1940s in favour of the idea that congressional contracts and executive agreements are interchangeable); Bruce Ackerman – David Golove, IS NAFTA Constitutional?, 108 Harv.