In addition to the two issues above, there is a broad consensus on the scope and effect of purely executive agreements as a matter of constitutional law. Like the other two types of executive agreements, they are subject to the same restrictions as those that apply to treaties, they are not limited by the Tenth Amendment and replace all inconsistent state laws. The largest delegation of powers Congress has ever granted to the president to make executive arrangements took place in the area of the related powers of the two departments, the field of foreign relations, and took place at a time when war seemed to be looming and indeed in just a few months. The law referred to is the Lend-Lease Act of March 11, 1941,16Footnote55 Stat. 31. by which the President has been authorized, for more than two years – and thereafter for additional periods whenever he has deemed it in the interest of national defence – to authorize the Secretary of War, the Secretary of the Navy or the head of any other department or agency of the Government to manufacture arsenals in the Government, factories and shipyards, or other purchases of defense equipment – which were subsequently modified, to include food and industrial products – or otherwise, when available means have made it possible – and to sell, transfer ownership to the government of a country whose defense the president considers vital to the defense of the United States, and on such conditions as it deems satisfactory. Under this authorization, the United States entered into reciprocal assistance agreements under which the government provided its Allies during World War II with $40 billion worth of munitions of war and other supplies. An agreement between Congress and the executive branch is based on a previous or subsequent act of Congress authorizing the conclusion of the agreement or conferring general authority for executive measures required at the international level to implement the legislation in question. The scope or purpose of the agreement is the same whether the act of congress occurs before or after the negotiation of the agreement; The law of Congress often takes the form of an authorization to enter into or implement an agreement that has already been negotiated. In principle, however, the agreement must fall under the joint powers of Congress and the President in order to achieve constitutional validity.
An agreement that does not fall within the legal jurisdiction of Congress or the President, as the authorities generally agree, would be unconstitutional. On the other hand, as the American Law Institute has commented, «the source of authority to reach an agreement between Congress and the executive branch may even be broader than the sum of the respective powers of Congress and the President,» and «in international affairs, the President and Congress together have all the powers of the United States inherent in its sovereignty and nation, and can therefore conclude any international agreement on any subject». Regardless, the vast majority of executive agreements entered into by the United States — for example, the World War II lend-lease agreements and the Trade Expansion Acts of 1934 and 1962 — are of this type, in part for the purpose of controlling and balancing the president in the conduct of foreign policy. Like its conventional counterpart, derived from one of the elements of the «supreme law of the land,» the agreement between Congress and the executive branch replaces all inconsistent state laws and follows the usual rule that later favors the instrument in case of inconsistency with a federal law. In the United States, executive agreements are concluded exclusively by the President of the United States. They are one of three mechanisms through which the United States makes binding international commitments. Some authors consider executive agreements to be international treaties because they bind both the United States and another sovereign state. However, under U.S.
constitutional law, executive agreements are not considered treaties within the meaning of the treaty clause of the U.S. Constitution, which requires the Council and the approval of two-thirds of the Senate to be considered a treaty. First, the question, which has not yet been conclusively clarified, arises as to whether Congress can legislate to prohibit or otherwise restrict exclusive executive agreements. Although sweeping restrictions on such agreements, including the 1953-1954 Bricker Amendment Bill, have yet to be passed, Congress has nonetheless at times limited the president`s authority in a way that appears to exclude certain executive agreements. For example, the 1973 War Powers Resolution, which requires congressional approval to introduce combat troops into hostile situations, arguably prevents the president from making deals that would engage U.S. armed forces in undeclared foreign wars. Similarly, the Arms Control and Disarmament Act of 1961 prohibits arms limitation or reduction «except on the basis of the decision-making power of the treaty. or unless other laws of the United States Congress permit it. The validity of such restrictions on presidential power has been challenged by presidents and has not yet been determined by the Supreme Court. Partly because the enumerated powers of Congress and the President have been interpreted broadly, most of the agreements proposed as treaties could also have been proposed as executive agreements of Congress. For this reason, the United States. .