Sole Executive Agreements And Their Role In US Law

• Jurisdiction: United States,Federal
• Author: Mr Timothy Keeler, Duane Layton, Warren Payne and Jennifer Parry
• Law Firm: Mayer Brown
• Published date: 27 April 2023

On March 28, 2023, the United States and Japan entered into the Agreement Between the Government of the United States of America and the Government of Japan on Strengthening Critical Minerals Supply Chains (the "Trade Agreement").¹ In response to this announcement, Republican and Democratic members of Congress alike expressed concern that the Office of the United States Trade Representative exceeded its authority when negotiating the Trade Agreement. The Trade Agreement took the form of a sole executive agreement, without congressional approval. Last month, during US Trade Representative Ambassador Katherine Tai's appearances before the Senate Finance and House Ways & Means Committees, Republican members of both committees expressed concern that, absent congressional approval, the next Administration could ignore, back out of, or renegotiate any executive agreement entered into by the Biden Administration.² Further, Democratic members of the committees argued that, for the Trade Agreement to be effective, it needed labor and environmental provisions and that "the Administration does not have the authority to unilaterally enter into free trade agreements."³

In light of the above, this Legal Update examines sole executive agreements, including what they are, how they differ from statutorily enacted international agreements (i.e., congressional-executive agreements), and what legal options an administration has to back out of or modify these types of agreements. We note, however, that the effect of international agreements on domestic US law remains a topic of debate among legal experts, and, while we attempt to summarize the leading views on this topic, these views are not necessarily settled law.

What Is a Sole Executive Agreement, and How Does It Differ from Statutorily Enacted International Agreements?

Under US law and practice, an international pact can take one of three forms:

1. Treaty: An international agreement "negotiated and signed by a member of the executive branch that enters into force if it is approved by a two-thirds majority of the Senate and is subsequently ratified by the President."⁴
2. Executive Agreement: "An international agreement that is binding" under international law, and, as detailed below, can come in a number of forms itself, but which the "President enters into without receiving the advice and consent of the Senate."⁵
3. Nonlegal Agreement: "A pact (or a provision within a pact) between the United States and a foreign entity that is not intended to be binding under international law but may carry nonlegal incentives for compliance."⁶

The US Constitution provides that the president "shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." (Article II, section 2). Treaties are binding agreements between nations and become part of international law. Treaties to which the United States is a party also have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land."

The majority of international agreements into which the United States enters, however, are executive agreements. According to a 2018 Congressional Research Service ("CRS") Report, "[c]ommentators estimate[d] that more than 90% of international legal agreements concluded by the United States have taken the form of an executive agreement."⁷ There are three categories of executive agreements: 1) congressional-executive agreements, 2) executive agreements made pursuant to a treaty, and 3) sole executive agreements.

As the name suggests, congressional-executive agreements are entered into by the president "with the concurrence of a simple majority" by both the House of Representatives and the...