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When conducting diplomacy, American presidents have two primary mechanisms for entering into binding agreements with foreign nations: treaties and executive agreements. While both create legally binding obligations, they differ significantly in their domestic approval processes, constitutional requirements, and political implications.
Treaties are formal agreements between nations that, under US law, require approval by a two-thirds majority of the Senate. Article II, Section 2 of the Constitution grants the President the power to “make Treaties, provided two-thirds of the Senators present concur.” This high threshold reflects the founders’ intention that treaties should represent a broad national consensus on significant international commitments.
Examples of major treaties include:
Executive agreements are international agreements made by the President that do not require Senate approval. These agreements derive their authority from the President’s constitutional powers in foreign affairs, existing legislation, or prior treaties. While they don’t require legislative approval, they carry the same binding force in international law as treaties.
Notable executive agreements include:
Treaties typically create more durable international commitments. Subsequent presidents face greater political and diplomatic costs when withdrawing from treaties, as seen with the prolonged process of leaving the Intermediate-Range Nuclear Forces Treaty. Executive agreements, conversely, can be more easily modified or terminated by succeeding administrations, as demonstrated when President Trump withdrew from the Paris Climate Agreement.
The fundamental controversy revolves around how broadly presidents can interpret their executive agreement authority. Critics argue that the massive expansion of executive agreements (now outnumbering treaties by roughly 10:1) effectively circumvents the Senate’s constitutional “advice and consent” role. Supporters contend that modern diplomacy requires this flexibility.
The most systematic attempt to create a “litmus test” is the State Department’s Circular 175 Procedure, established in 1955 and codified in the Foreign Affairs Manual. This sets forth eight specific factors that State Department lawyers must consider when determining whether an agreement should be a treaty or executive agreement:
However, this process is largely internal and secretive, and the State Department does not publish its legal reasoning with respect to the C-175 factors.
Congress passed the Case Act of 1972, requiring the secretary of state to send to Congress within sixty days the text of “any international agreement, other than a treaty,” to which the United States is a party.
