International Executive Agreements: Democratic Procedure under the Constitution of the United States

PASSING on now to those usages which directly affect the conduct of intercourse with other members of the family of nations -- hence are more direct and obvious precedents supporting as a usage the employment of international acts other than treaties to achieve the same purposes as treaties -- it becomes quickly apparent that in this particular field, no less than in general, evolutionary processes were early at work in the United States and have made their contribution to the national constitution.

One of the earliest commentators on the Charter of 1787¹ remarks at the beginning of his chapter, "Of the Treaty making Power":

Treaties being next to the constitution, the supreme law of the land, properly . . . are laws, in making which the house of representatives has no original share; whether their subsequent concurrence in any shape is necessary will hereafter be examined.

The language of the constitution is, that "he [,the president,] "shall have power by and with the advice and consent of the senate to make treaties, provided two-thirds of the senators present concur."

This, at first view, would imply that a treaty, like an act of congress, should in its progress be the subject of joint deliberation, but the practice has necessarily been otherwise.

It is hardly arguable that the necessary practice of not submitting treaties to the deliberation of the House of Representatives is to be reckoned a constitutional usage; but it is quickly demonstrable by examination of the record of history that "subsequent concurrence" of the House quickly came to be deemed sine qua non to the performance of certain kinds of treaty obligations. The most obvious instance, the appropriation of money, may fairly be included in any list of the constitutional usages of the United States.

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