Legal Effect of Executive Agreements

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

When the President enters into an executive agreement, what sort of obligation does it impose on the United States? That it may impose international obligations of potentially serious consequences is obvious and that such obligations may linger for long periods of time is equally obvious.1 Footnote
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. Not so obvious is the nature of the domestic obligations imposed by executive agreements. Do treaties and executive agreements have the same domestic effect?2 Footnote
See E. Byrd, supra at 151-57. Treaties preempt state law through operation of the Supremacy Clause. Although it may be that executive agreements entered into pursuant to congressional authorization or treaty obligation also derive preemptive force from the Supremacy Clause, that textual basis for preemption is arguably lacking for executive agreements resting solely on the President’s constitutional powers.

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.3 Footnote
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. G. Hackworth , 5 Digest of International Law 426 (1944) . 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.

The Court elaborated on these principles five years later in United States v. Pink ,7 Footnote
315 U.S. 203 (1942) . another case involving the Litvinov Assignment and recognition of the Soviet Government. The question presented was whether the United States was entitled to recover the assets of the New York branch of a Russian insurance company. The company argued that the Soviet Government's decrees of confiscation did not apply to its property in New York and could not apply 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. . . .”

“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.” 8 Footnote
315 U.S. at 229–31, 233–34 .

This recognition of the preemptive reach of executive agreements was an element in the movement for a constitutional amendment in the 1950s to limit the President’s powers in this field, but that movement failed.9 Footnote
There were numerous variations in language for the Bricker Amendment, but typical was § 3 of S.J. Res. 1, as reported by the Senate Judiciary Committee, 83d Congress, 1st Sess. (1953), which provided: “Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.” The limitation relevant on this point was in § 2, which provided: “A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.”

Belmont and Pink were reinforced in American Ins. Ass'n v. Garamendi .10 Footnote
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. In holding that California’s Holocaust 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.” 11 Footnote
539 U.S. at 416 . The preemptive reach of executive agreements stems from “the Constitution’s allocation of the foreign relations power to the National Government.” 12 Footnote
539 U.S. at 413 . 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.13 Footnote
539 U.S. at 420 .

If the foreign relations power is truly an exclusive federal power, with no role for the states, a logical consequence, the Supreme Court has held, is that some state laws impinging on foreign relations are invalid even in the absence of a relevant federal policy. There is, in effect, a “dormant” foreign relations power. The scope of this power remains undefined, however, and its constitutional basis is debated by scholars.

The exclusive nature of the federal foreign relations power has long been asserted by the Supreme Court. In 1840, for example, the Court declared that “it was one of the main objects of the constitution to make us, so far as regarded our foreign relations, one people, and one nation; and to cut off all communications between foreign governments, and the several state authorities.” 14 Footnote
Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575–76 (1840) . See also United States v. Belmont, 301 U.S. 324, 331 (1937) ( “The external powers of the United States are to be exercised without regard to state laws or policies. . . . [I]n respect of our foreign relations generally, state lines disappear” ); The Chinese Exclusion Case, 130 U.S. 581, 606 (1889) ( “For local interests the several States of the Union exist; but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power” ); Hines v. Davidowitz, 312 U.S. 52, 63 (1941) ( “Our system of government . . . requires that federal power in the field affecting foreign relations be left entirely free from local interference” ). A hundred years later the Court remained emphatic about federal exclusivity. “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.” 15 Footnote
United States v. Pink, 315 U.S. 203, 233–34 (1942) . Chief Justice Stone and Justice Roberts dissented.

It was not until 1968, however, that the Court applied the general principle to invalidate a state law for impinging on the nation’s foreign policy interests in the absence of an established federal policy. In Zschernig v. Miller 16 Footnote
389 U.S. 429 (1968) . the Court invalidated an Oregon escheat law that operated to prevent inheritance by citizens of Communist countries. The law conditioned inheritance by nonresident aliens on a showing that U.S. citizens would be allowed to inherit estates in the alien’s country, and that the alien heir would be allowed to receive payments from the Oregon estate “without confiscation.” 17 Footnote
In Clark v. Allen, 331 U.S. 503 (1947) , the Court had upheld a simple reciprocity requirement that did not have the additional requirement relating to confiscation. Although a Justice Department amicus brief asserted that application of the Oregon law in this one case would not cause any “undu[e] interfer[ence] with the United States’ conduct of foreign relations,” the Court saw a “persistent and subtle” effect on international relations stemming from the “notorious” practice of state probate courts in denying payments to persons from Communist countries.18 Footnote
389 U.S. at 440 . Regulation of descent and distribution of estates is an area traditionally regulated by states, but such “state regulations must give way if they impair the effective exercise of the Nation’s foreign policy.” If there are to be travel, probate, or other restraints on citizens of Communist countries, the Court concluded, such restraints “must be provided by the Federal Government.” 19 Footnote
389 U.S. at 440, 441 .

Dictum in Garamendi recognizes some of the questions that can be raised about Zschernig . The Zschernig Court did not identify what language in the Constitution mandates preemption, and commentators have observed that a respectable argument can be made that the Constitution does not require a general foreign affairs preemption not tied to the Supremacy Clause, and broader than and independent of the Constitution’s specific prohibitions23 Footnote
It is contended, for example, that Article I, § 10's specific prohibitions against states engaging in war, making treaties, keeping troops in peacetime, and issuing letters of marque and reprisal would have been unnecessary if a more general, dormant foreign relations power had been intended. Similarly, there would have been no need to declare treaties to be the supreme law of the land if a more generalized foreign affairs preemptive power existed outside of the Supremacy Clause. See Ramsey, supra. and grants of power.24 Footnote
Arguably, part of the “executive power” vested in the President by Art. II, § 1 is a power to conduct foreign relations. The Garamendi Court raised “a fair question whether respect for the executive foreign relations power requires a categorical choice between the contrasting theories of field and conflict preemption evident in the Zschernig opinions.” Instead, Justice Souter suggested for the Court, field preemption may be appropriate if a state legislates “simply to take a position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility,” and conflict preemption may be appropriate if a state legislates within an area of traditional responsibility, “but in a way that affects foreign relations.” 25 Footnote
539 U.S. at 419 n.11 . We must await further litigation to see whether the Court employs this distinction.26 Footnote
Justice Ginsburg’s dissent in Garamendi , joined by the other three Justices, suggested limiting Zschernig in a manner generally consistent with Justice Souter’s distinction. Zschernig preemption, Justice Ginsburg asserted, “resonates most audibly when a state action ‘reflects a state policy critical of foreign governments and involve[s] sitting in judgment on them.’” 539 U.S. at 439 (quoting Henkin, supra, at 164). But Justice Ginsburg also voiced more general misgivings about judges' becoming “the expositors of the Nation’s foreign policy.” Id. at 442 . In this context, see Goldsmith, supra, at 1631, describing Zschernig preemption as “a form of the federal common law of foreign relations.”

Footnotes 1 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. 2 See E. Byrd, supra at 151-57. 3 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. G. Hackworth , 5 Digest of International Law 426 (1944) . 4 301 U.S. 324 (1937) . In B. Altman & Co. v. United States, 224 U.S. 583 (1912) , the Court had recognized that a jurisdictional statute’s reference to a “treaty” encompassed an executive agreement. 5 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) . 6 301 U.S. at 330–31 . 7 315 U.S. 203 (1942) . 8 315 U.S. at 229–31, 233–34 . 9 There were numerous variations in language for the Bricker Amendment, but typical was § 3 of S.J. Res. 1, as reported by the Senate Judiciary Committee, 83d Congress, 1st Sess. (1953), which provided: “Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.” The limitation relevant on this point was in § 2, which provided: “A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.” 10 539 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. 11 539 U.S. at 416 . 12 539 U.S. at 413 . 13 539 U.S. at 420 . 14 Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575–76 (1840) . See also United States v. Belmont, 301 U.S. 324, 331 (1937) ( “The external powers of the United States are to be exercised without regard to state laws or policies. . . . [I]n respect of our foreign relations generally, state lines disappear” ); The Chinese Exclusion Case, 130 U.S. 581, 606 (1889) ( “For local interests the several States of the Union exist; but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power” ); Hines v. Davidowitz, 312 U.S. 52, 63 (1941) ( “Our system of government . . . requires that federal power in the field affecting foreign relations be left entirely free from local interference” ). 15 United States v. Pink, 315 U.S. 203, 233–34 (1942) . Chief Justice Stone and Justice Roberts dissented. 16 389 U.S. 429 (1968) . 17 In Clark v. Allen, 331 U.S. 503 (1947) , the Court had upheld a simple reciprocity requirement that did not have the additional requirement relating to confiscation. 18 389 U.S. at 440 . 19 389 U.S. at 440, 441 . 20 See, e.g., Michael D. Ramsey , The Power of the States in Foreign Affairs: The Original Understanding of Foreign Policy Federalism , 75 Notre Dame L. Rev. 341 (1999) ; Carlos Manuel Vazquez , Whither Zschernig? , 46 Vill. L. Rev. 1259 (2001) ; Jack L. Goldsmith , Federal Courts, Foreign Affairs, and Federalism , 83 Va. L. Rev. 1617 (1997) ; Peter J. Spiro , Foreign Relations Federalism , 70 U. Colo. L. Rev. 1223 (1999) . See also Louis Henkin , Foreign Affairs and the Constitution 149–69 (2d ed. 1996) . 21 Crosby v. National Foreign Trade Council, 530 U.S. 363, 374 n.8 (2000) . For the appeals court’s application of Zschernig , see National Foreign Trade Council v. Natsios, 181 F.3d 38, 49–61 (1st Cir. 1999) . 22 American Ins. Ass'n v. Garamendi , 539 U.S. at 419 & n.11 (2003) . 23 It is contended, for example, that Article I, § 10's specific prohibitions against states engaging in war, making treaties, keeping troops in peacetime, and issuing letters of marque and reprisal would have been unnecessary if a more general, dormant foreign relations power had been intended. Similarly, there would have been no need to declare treaties to be the supreme law of the land if a more generalized foreign affairs preemptive power existed outside of the Supremacy Clause. See Ramsey, supra. 24 Arguably, part of the “executive power” vested in the President by Art. II, § 1 is a power to conduct foreign relations. 25 539 U.S. at 419 n.11 . 26 Justice Ginsburg’s dissent in Garamendi , joined by the other three Justices, suggested limiting Zschernig in a manner generally consistent with Justice Souter’s distinction. Zschernig preemption, Justice Ginsburg asserted, “resonates most audibly when a state action ‘reflects a state policy critical of foreign governments and involve[s] sitting in judgment on them.’” 539 U.S. at 439 (quoting Henkin, supra, at 164). But Justice Ginsburg also voiced more general misgivings about judges' becoming “the expositors of the Nation’s foreign policy.” Id. at 442 . In this context, see Goldsmith, supra, at 1631, describing Zschernig preemption as “a form of the federal common law of foreign relations.”

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