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Treaties and Executive Agreements A Reply, 54 Yale Law Journal 616 (1945)


The authors of the articles under reply, Messrs. McDougal and Lans, have, like McClure, essayed to show that the treaty and the executive agreement are interchangeable, and, since executive agreements are simpler to conclude, they advocate disregarding as obsolete the treaty-making power, requiring, as it does, the consent of two thirds of the Senate, and substituting for it the use of the executive agreement. In that demand they differ radically from the constitutional conclusions which the writer, as well as many other students of the subject, have reached. To give their proposal a more “democratic” tinge, the authors propose what they call the Congressional – Executive agreement, which, as a Congressional approval of executive agreements already made, has no roots in history, but is deemed by the authors to stand on an equally good footing with the executive agreement concluded pursuant to an act of Congress, of which there are illustrations in the postal and tariff agreements concluded ever since early days in the case of postal agreements and since 1890 in the case of tariffs.

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democracy, tariff, copyright, trademarks, modi vivendi