42 Columbia Law Review 887 (1942)
This volume presents a crusade in the name of democracy against the constitutional provision that the ratification of treaties requires the advice and consent of a two-thirds majority of the Senate, and on behalf of the author's proposal that the executive agreement be substituted for treaties, thus dispensing with Senate participation in international compacts. The author, in making these proposals, is motivated by his resentment against the failure of the League of Nations to obtain a two-thirds majority in the Senate, although that failure was apparently ratified by popular vote in the 1920 election. Perhaps to get around this disturbing fact, Dr. McClure says: "Minority control over treaties in the Senate does not lead to the realization of the people's considered, as opposed to their passing, will." His solution of the supposed constitutional dilemma which he thus posits is the executive agreement, with Congress if necessary, without Congress if possible. He says: "The President can do by executive agreement anything that he can do by treaty, provided Congress by law cooperates. And there is a very wide field of action in which the cooperation of Congress is not necessary; indeed where Congress possesses no constitutional authority to dissent.'" Thus, while conceding the possible necessity or desirability on occasion of Congressional "authorization" (as in the Trade Agreements Acts of 1934, 1937 and 1940), his real thesis, generally undisguised, is that the President alone, through the executive agreement, has full power to commit the United States to any international engagement; and that such executive agreement should have the constitutional force of a treaty, establishing domestic law, prevailing over state legislation and perhaps overruling earlier legislation of Congress. He is in some doubt on the latter point, and here would concede the desirability of Congressional approval of the executive agreement.
Date of Authorship for this Version
Borchard, Edwin, "Book Review: International Executive Agreements: Democratic Procedure Under the Constitution of the United States" (1942). Faculty Scholarship Series. Paper 3632.