Also known as: executive agreements
Written by attorneys · grounded in primary & secondary sources — see below
An international agreement entered into by the President without Senate ratification. Such agreements derive domestic legal effect from the President's foreign affairs power when supported by congressional acquiescence and preempt conflicting state law while remaining subordinate to the Constitution.
Echo Systems and two other U.S. energy firms sued Noravia after the foreign state seized their drilling assets. The President concluded an executive agreement with Noravia that settled the claims and directed them to an international compensation commission. Congress had long authorized similar settlements and raised no objection. Federal courts suspended the pending suits and required the companies to pursue relief before the commission.
Emanuel Escobar, a U.S. civilian performer, accompanied a foreign military entertainment corps under an executive cultural exchange agreement. The agreement authorized foreign military tribunals to try accompanying civilians for on-base misconduct without ordinary U.S. constitutional safeguards. After Escobar's conviction, he challenged the tribunal provision in federal court. The court held the provision invalid because the agreement could not authorize violations of specific constitutional protections.
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Evergreen Bank held assets previously owned by a Russian entity. The President entered an executive agreement recognizing the Soviet government and assigning certain claims to the United States. New York state courts initially refused to give effect to the assignment under state law. Federal courts held that the agreement controlled and preempted the conflicting state rule.
Equinox Energy faced state disclosure requirements concerning Holocaust-era insurance policies. The President had concluded executive agreements with Germany and Austria establishing exclusive international foundations to resolve such claims. California attempted to enforce its statute against the insurer. The Court held that the agreements preempted the conflicting state law.
Ethan Evans, born in Jerusalem, sought a U.S. passport listing Israel as his birthplace under a congressional statute. The President had directed that passports reflect a neutral stance on Jerusalem's status through executive agreements and related foreign policy. Evans sued to enforce the statute. The Court addressed the allocation of recognition power between Congress and the President in the context of the agreements.
Esme Ellington brought a state tort claim against a pharmaceutical manufacturer. The company argued that an executive agreement addressing international drug safety standards preempted the state claim. The Court examined whether congressional inaction or the agreement itself could support preemption of state law. It held that state law was not preempted on the facts presented.
The President may settle claims of U.S. nationals against foreign governments through executive agreements when Congress has at least implicitly approved the practice through longstanding authorization or acquiescence. Courts will then treat the agreement as a valid exercise of foreign affairs power that can suspend pending domestic litigation and channel claims to international fora.
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No. Treaties and executive agreements are not co-equal with the Constitution. They cannot authorize governmental action that violates specific constitutional guarantees such as Fifth Amendment due process or jury trial rights, even when concluded for foreign affairs purposes.
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Yes. A valid executive agreement preempts conflicting state law under the Supremacy Clause, including state statutes that attempt to regulate matters addressed by the agreement, such as disclosure requirements or claim resolution procedures.
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An executive agreement does not require two-thirds Senate ratification and therefore cannot override a prior act of Congress, but it remains superior to state law and carries the same preemptive force as a treaty when the President acts within foreign affairs authority supported by congressional acquiescence.
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…foreign governments regarding the resolution of Holocaust-era insurance claims. Most notably, the Government has entered into executive agreements with Germany and Austria. These agreements include pledges by the foreign governments to set up foundations to pay Holocaust-era claims, in exchange for which the United States has agreed…