What is the obligation that the president imposes on the United States when he enters into an executive agreement? It is clear that it can impose international obligations with potentially serious consequences, and it is equally clear that these obligations can be extended over a long period of time.488 The nature of national obligations imposed by executive agreements is not so obvious. Do contracts and executive agreements have the same impact on domestic policy?489 contracts pre-exist state law by applying the supremacy clause. While agreements made under the authorization or contractual commitment of Congress also stem from the preventive force of the supremacy clause, this textual basis for the pre-emption period is probably absent for executive agreements based exclusively on the president`s constitutional powers. For much of U.S. history, the U.S. courts231 and U.S. officials232, international law has been considered a binding U.S. national law in the absence of an executive or legislative oversight. Around 1900, in The Habana Package, the Supreme Court declared that international law “is part of our law”” 233 Although this description may seem simple, developments in the 20th century complicate the relationship between international customary and domestic law. See z.B. Garamendi, 539 U.S. at 415 (discussion of the “Executive Agreements to Settle the Rights of U.S. Nationals Against Foreign Governments” from 1799); Act of February 20, 1792, No.
26, 1 Stat. 239 (law passed by the Second Congress for the approval of post-linked executive agreements). The ex ante executive agreements of Congress are similar to many administrative provisions, as they are often based on vague or broad legal authorizations and are concluded by a large number of executive agencies. Some of the same concerns expressed in the framework of administrative regulation – legality, the registration of interest groups, reckless or corrupt bureaucratic measures, etc. – are also related to ex ante agreements between Congress and the executive branch. But there is at least one key difference: administrative provisions are subject to a complex administrative framework, but ex ante agreements between Congress and the executive branch are not subject to administrative law or any other accountability framework that goes beyond an incomplete and unreased reporting obligation. In 1798, the United States terminated a constitutional treaty for the first time. On the eve of possible hostilities with France, Congress and President Adams passed a law stipulating that four American treaties with France “will no longer be considered mandatory by law for the government or citizens of the United States.” 201 Thomas Jefferson called the episode a support for the idea that only a “legislative act” can terminate a contract.202 But since then, commentators considered the 1798 statute to be a historical anomaly because it was the only case in which Congress claimed to terminate a contract directly by law without relying on the president to grant termination to the foreign government.203 Because the 1798 statute was part of a series of congressional actions that allowed for termination of the foreign government.203 Because the 1798 statute was part of a series of congressional actions that allowed for limited hostilities against the French Republic, some see the statute as an exercise of the war powers of Congress and not as a precedent for a permanent power of Congress to terminate contracts.204 Most executive agreements were concluded in accordance with a treaty or an act of Congress.