Also known as: executive agreement
Written by attorneys · grounded in primary & secondary sources — see below
An international compact concluded by the President with a foreign nation without the advice and consent of the Senate. The agreement carries the force of federal law when made with at least implicit congressional approval and when it does not conflict with the Constitution.
Elite Dynamics and two other U.S. energy firms sued a foreign state after it seized their offshore assets. While the suits were pending, the President concluded an executive agreement settling all private claims and directing them to an international commission. Congress had long authorized similar settlements and raised no objection. The federal court suspended the pending actions and required the firms to pursue relief before the commission.
Under an executive cultural-exchange pact, foreign military personnel were authorized to try accompanying U.S. civilians in closed tribunals for on-base misconduct. Esther Eisenberg, a civilian performer, was convicted without jury protections or Article III process. She sued to invalidate the tribunal provision. The court held the agreement unenforceable because it authorized procedures that violated Fifth Amendment guarantees.
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Elite Dynamics and other insurers faced a state statute requiring disclosure of Holocaust-era policies. The President had already entered an executive agreement with Germany establishing an exclusive international claims foundation. The state law conflicted with the federal arrangement by imposing different remedies and procedures. The Supreme Court held the state statute preempted by the executive agreement.
After the President recognized a new foreign government, an executive agreement transferred assets previously held by the old regime to the United States. Echo Systems, a U.S. creditor, sought to attach those assets in state court under local policy. The Court held that the executive agreement controlled and required the assets to be turned over to the United States.
Congress enacted a statute directing the State Department to record a U.S. citizen's place of birth as Jerusalem rather than Israel on passports. The President had already recognized Israeli sovereignty over the city through prior executive actions. Elliot Edmonds, whose passport listing was affected, sued to enforce the statute. The Court held that the statute impermissibly intruded on the President's exclusive recognition power exercised through executive agreements and related diplomacy.
Elena Estrada and other environmental plaintiffs sued to enjoin enforcement of an executive agreement that relaxed certain cross-border pollution controls. They alleged injury from increased emissions but could not show that a favorable ruling would redress their harm. The Court dismissed the action for lack of standing, leaving the agreement's validity to be tested by parties with concrete, redressable injuries.
The President may settle such claims when Congress has at least implicitly approved the practice through longstanding authorization or acquiescence. The agreement then provides a valid basis for federal courts to suspend pending suits and channel claims to an international forum.
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No. Executive agreements are subordinate to the Constitution and cannot authorize governmental action that violates specific constitutional protections such as due process or jury-trial rights. Courts will refuse to enforce any provision that conflicts with those guarantees.
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Yes. Like treaties and federal statutes, valid executive agreements preempt state laws that conflict with their terms or purposes, particularly in the foreign-affairs field.
No. The President may conclude executive agreements without Senate consent on subjects within the foreign-affairs power, and such agreements have been used for decades to resolve claims and conduct diplomacy.
…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…