United States Constitution of International Law

When the United States Constitution was originally created, the Framers incorporated into it what we know today as separate branches of federal government- the executive, legislative and judicial in an effort to create a system by which one branch could ensure that another branch did not exceed its intended power and authority. However, the executive branch has, over the years, grabbed extra authority in the form of executive agreements, which give the president the latitude to enter into agreements with foreign powers, for example, without waiting for the approval of the other federal branches (Henkin, 1989).

In defense of the president and his powers, however, at the time that executive agreements began, the complexity of government and indeed the entire world was vastly less than it is in today’s world of high technology, population booms and the ever-present threat of global terrorism. Within this scope, therefore, the question of whether the use of executive agreements by presidents is a violation of the Constitution or a necessary part of checks and balances between the legislative and executive branches.

In a broad sense, the use of executive agreements by presidents can be interpreted as a violation of the Constitution for one main reason- the system of checks and balances which was mentioned at the beginning of this discussion. The intent of the Framers was to create a system that kept the president from becoming a dictator, as the original colonies were forced to endure at the hands of the British crown (Henkin, 1989).

When the president takes it upon himself to issue executive agreements without the advice and consent of the US Senate as one would expect when an executive agreement is with a foreign power and resembles what would basically be considered to be a treaty, the president is exceeding his constitutionally granted powers. Therefore, executive agreements can, and do, become unconstitutional. The question of executive agreements as a necessary part of checks and balances between executive and legislative governmental branches has a somewhat confusing answer.

Based on what has been discussed so far, executive agreements have violated the Constitution in the past, all but ignoring checks and balances. This being said, however, the chaos that executive agreements create between the executive and legislative branches holds the potential to somehow strengthen the system of checks and balances, since the legislative branch must truly assert itself against the executive branch to prevent questionable agreements from being completed without the permission that should in fact be sought by the executive branch from the legislative branch.

For all of the potential for executive agreements to violate the Constitution and the system of checks and balances, in fairness, they need to exist if the US is to be able to deal with the complex issues that it faces as a free nation in an increasingly hostile international landscape. For example, the president, in times of national threat such as an act of terrorism, must have the flexibility to make key decisions instantly, without having to wait for a very busy Senate to review an executive proposal, debate and vote on it.

By the time such diligence is completed, the threat that existed could have already overwhelmed the nation. This discussion, while focusing on executive agreements, has also led to the consideration of another important point- the branches of federal government must cooperate for the best interests of the US as a whole.

References

Henkin, L. (1989). The United States Constitution in Its Third Century: Foreign Affairs. American Journal of International Law, 83(4), 713-717.