ArtII.S2.C3. Congressional Executive Agreements

Article II, Section 2, Clause 3:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Congress early authorized officers of the executive branch to enter into negotiations and to conclude agreements with foreign governments, authorizing the borrowing of money from foreign countries1 and appropriating money to pay off the government of Algiers to prevent pirate attacks on United States shipping.2 Perhaps the first formal authorization in advance of an executive agreement was enactment of a statute that permitted the Postmaster General to make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post offices.3 Congress has also approved, usually by resolution, other executive agreements, such as the annexing of Texas and Hawaii and the acquisition of Samoa.4 A prolific source of executive agreements has been the authorization of reciprocal arrangements between the United States and other countries for the securing of protection for patents, copyrights, and trademarks.5

Reciprocal Trade Agreements

The most copious source of executive agreements has been legislation which provided authority for entering into reciprocal trade agreements with other nations.6 Such agreements in the form of treaties providing for the reciprocal reduction of duties subject to implementation by Congress were frequently entered into,7 but beginning with the Tariff Act of 1890,8 Congress began to insert provisions authorizing the Executive to bargain over reciprocity with no necessity of subsequent legislative action. The authority was widened in successive acts.9 Then, in the Reciprocal Trade Agreements Act of 1934,10 Congress authorized the President to enter into agreements with other nations for reductions of tariffs and other impediments to international trade and to put the reductions into effect through proclamation.11

The Constitutionality of Trade Agreements

In Field v. Clark,12 legislation conferring authority on the President to conclude trade agreements was sustained against the objection that it attempted an unconstitutional delegation of both legislative and treaty-making powers. The Court met the first objection with an extensive review of similar legislation from the inauguration of government under the Constitution. The second objection it met with a curt rejection: What has been said is equally applicable to the objection that the third section of the act invests the President with treaty-making power. The Court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the President.13 Although two Justices disagreed, the question has never been revived. However, in B. Altman & Co. v. United States,14 decided twenty years later, a collateral question was passed upon. This was whether an act of Congress that gave the federal circuit courts of appeal jurisdiction of cases in which the validity or construction of any treaty . . . was drawn in question embraced a case involving a trade agreement which had been made under the sanction of the Tariff Act of 1897. The Court answered: While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, § 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless, it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court.15

The Lend-Lease Act

The most extensive delegation of authority ever made by Congress to the President to enter into executive agreements occurred within the field of the cognate powers of the two departments, the field of foreign relations, and took place at a time when war appeared to be in the offing and was in fact only a few months away. The legislation referred to is the Lend-Lease Act of March 11, 1941,16 by which the President was empowered for over two years—and subsequently for additional periods whenever he deemed it in the interest of the national defense to do so—to authorize the Secretary of War, the Secretary of the Navy, or the head of any other department or agency of the Government, to manufacture in the government arsenals, factories, and shipyards, or otherwise procure, to the extent that available funds made possible, defense articles—later amended to include foodstuffs and industrial products—and sell, transfer title to, exchange, lease, lend, or otherwise dispose of, the same to the government of any country whose defense the President deems vital to the defense of the United States, and on any terms that he deems satisfactory. Under this authorization the United States entered into Mutual Aid Agreements under which the government furnished its allies in World War II with 40 billion dollars' worth of munitions of war and other supplies.

International Organizations

Overlapping of the treaty-making power through congressional-executive cooperation in international agreements is also demonstrated by the use of resolutions approving the United States joining of international organizations17 and participating in international conventions.18

Seila Law

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court concluded that Congress could not provide for-cause removal protections for the head of the CFPB, an independent financial regulatory agency led by a single Director.19 The Court described the President's removal power as unrestricted,20 rejecting the view that Humphrey's Executor and Morrison establish a general rule that Congress may impose 'modest' restrictions on the President's removal power.21 Instead, the President's removal power is the rule, not the exception.22 The Court said that after Free Enterprise Fund, only two exceptions to the rule requiring removability remained.23 First, under Humphrey's Executor, Congress may sometimes "create expert agencies led by a group of principal officers removable by the President only for good cause" if the agency does not exercise executive power.24 In interpreting this 1935 case, the Seila Law Court essentially limited the decision to its facts, saying that this exception permitted for-cause removal protections for "a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power."25 The Court said that the second exception to the President's removal power allowed at least some removal protections for inferior officers, as in Morrison, if those officers have limited duties and no policymaking or administrative authority.26

The Court concluded in Seila Law that the CFPB Director did not fall within either of these two exceptions.27 The single Director was not a multimember expert body, and, in the view of the Court, could not be considered a mere legislative or judicial aid.28 Rather than performing merely reporting and advisory functions, the CFPB Director exercised executive power, possessing the authority to promulgate binding rules fleshing out 19 federal statutes, . . . . [to] issue final decisions awarding legal and equitable relief in administrative adjudications, and to seek daunting monetary penalties in enforcement actions in federal court.29 Neither could the CFPB Director be considered an inferior officer with limited duties.30 And the Court ruled that it would not recognize a new exception to the President's removal authority for an independent agency led by a single Director and vested with significant executive power.31 The Court described the CFPB's structure as unprecedented32 and incompatible with our constitutional structure,33 saying that the agency's structure violated the Constitution by vesting significant governmental power in the hands of a single individual accountable to no one.34 Consequently, the Court concluded that the provision insulating the Director from removal was unconstitutional, severing the for-cause removal provision from the governing statute.35


  1.  Jump to essay-11 Stat. 138 (1790). See E. Byrd, supra at 53 n.146.
  2.  Jump to essay-2W. McClure, International Executive Agreements 41 (1941).
  3.  Jump to essay-3Id. at 38–40. The statute was 1 Stat. 232, 239, 26 (1792).
  4.  Jump to essay-4McClure at 62-70.
  5.  Jump to essay-5Id. at 78–81; S. Crandall, supra at 127-31; see CRS Study, supra at 52-55.
  6.  Jump to essay-6Id. at 121–27; W. McClure, supra at 83-92, 173-89.
  7.  Jump to essay-7Id. at 8, 59–60.
  8.  Jump to essay-8§ 3, 26 Stat. 567, 612.
  9.  Jump to essay-9Tariff Act of 1897, § 3, 30 Stat. 15, 203; Tariff Act of 1909, 36 Stat. 11, 82.
  10.  Jump to essay-1048 Stat. 943, § 350(a), 19 U.S.C. §§ 1351-1354.
  11.  Jump to essay-11See the continued expansion of the authority. Trade Expansion Act of 1962, 76 Stat. 872, § 201, 19 U.S.C. § 1821; Trade Act of 1974, 88 Stat. 1982, as amended, 19 U.S.C. §§ 2111, 2115, 2131(b), 2435. Congress has, with respect to the authorization to the President to negotiate multilateral trade agreements under the auspices of GATT, constrained itself in considering implementing legislation, creating a fast-track procedure under which legislation is brought up under a tight timetable and without the possibility of amendment. 19 U.S.C. §§ 2191-2194.
  12.  Jump to essay-12143 U.S. 649 (1892).
  13.  Jump to essay-13143 U.S. at 694. See also Dames & Moore v. Regan, 453 U.S. 654 (1981), in which the Court sustained a series of implementing actions by the President pursuant to executive agreements with Iran in order to settle the hostage crisis. The Court found that Congress had delegated to the President certain economic powers underlying the agreements and that his suspension of claims powers had been implicitly ratified over time by Congress’s failure to set aside the asserted power. See also Weinberger v. Rossi, 456 U.S. 25, 29–30 n.6 (1982).
  14.  Jump to essay-14224 U.S. 583 (1912).
  15.  Jump to essay-15224 U.S. at 601.
  16.  Jump to essay-1655 Stat. 31.
  17.  Jump to essay-17E.g., 48 Stat. 1182 (1934), authorizing the President to accept membership for the United States in the International Labor Organization.
  18.  Jump to essay-18See E. Corwin, supra at 216.
  19.  Jump to essay-19Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2192 (2020). This case also involved questions of standing. Id. at 2195. Among other arguments, a court-appointed amicus curiae claimed that a litigant wishing to challenge an executive act on the basis of the President's removal power must show that the challenged act would not have been taken if the responsible official had been subject to the President's control. Id. at 2196. The Court rejected the idea that such a challenger has to prove this type of counterfactual, finding it sufficient to demonstrate an injury from an executive act that allegedly exceeds the official's authority. Id.
  20.  Jump to essay-20Id. at 2192.
  21.  Jump to essay-21Id. at 2205. The court-appointed amicus curiae argued that the Court's precedent established that Congress may generally limit the President's removal power, with two exceptions: (1) Congress may not reserve a role for itself in individual removal decisions; and (2) Congress may not completely eliminate the President's removal power. Id.
  22.  Jump to essay-22Id. at 2206.
  23.  Jump to essay-23Id. at 2198.
  24.  Jump to essay-24Id. at 2192, 2199. The Court said its decision in Wiener also fell within this exception. Id. at 2199 (discussing Wiener v. United States, 357 U.S. 349 (1958)).
  25.  Jump to essay-25Id. at 2199 (emphasis added). The Court stressed that [r]ightly or wrongly, the Court viewed the [Federal Trade Commission ('FTC')] (as it existed in 1935) as exercising 'no part of the [Humphrey's Executor] executive power.' Id. at 2198 (quoting Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935)). However, the Court also said that this conclusion has not withstood the test of time, and that the powers of the FTC—even as they existed in 1935—are now considered executive. Id. at 2198 n.2.
  26.  Jump to essay-26Id. at 2200. This principle also extended to Perkins. Id. at 2199 (discussing United States v. Perkins, 116 U.S. 483 (1886)).
  27.  Jump to essay-27Id. at 2200–01.
  28.  Jump to essay-28Id.
  29.  Jump to essay-29Id. at 2200.
  30.  Jump to essay-30Id.
  31.  Jump to essay-31Id. at 2201.
  32.  Jump to essay-32Id. The Court acknowledged that there were four other relatively recent historical examples of Congress providing good-cause tenure to principal officers leading an agency, but dismissed these examples as also being controversial. Id. (discussing the Comptroller of the Currency, Office of the Special Counsel, Social Security Administration, and Federal Housing Finance Agency).
  33.  Jump to essay-33Id. at 2202.
  34.  Jump to essay-34Id. at 2203. The Court noted that the executive branch is the only branch led by a unitary head, and that the President's power is checked through democratic and political accountability. Id. Individual executive officials may still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. Id.
  35.  Jump to essay-35Id. at 2208–09 (plurality opinion); id. at 2224 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part).