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Does Executive Agreement Require Congressional Approval

by Renkema

Initially, most judges and scholars consider that executive agreements based exclusively on the power of the president have not become the “law of the land” under the supremacy clause, because such agreements are not “treaties” ratified by the Senate.490 The Supreme Court has, however, found another basis for anticipating state laws through executive agreements. Ultimately, the transfer of the power of external relations through the Constitution to the national government. In the United States, executive agreements are binding internationally when negotiated and concluded under the authority of the president on foreign policy, commander-in-chief of the armed forces, or a previous act of Congress. For example, the president, as commander-in-chief, negotiates and enters into status of forces agreements (SOFAs) governing the treatment and disposition of U.S. armed forces stationed in other nations. Trade agreements such as NAFTA (North American Free Trade Agreement), World Trade Organization agreements, and bilateral free trade agreements (FTAs) were approved by a majority of each Assembly and not by a two-thirds majority of the Senate, that is, they were treated as an agreement between Congress and the executive and not as treaties. . . .