Congressional-Executive Agreement

Agreement signed between the U.S. government and a foreign nation that is easier to enact than a formal treaty but contains many more restrictions.

Although both treaties and congressional-executive agreements are international agreements that are signed with foreign nations, the two have significant differences. For instance, congressional-executive agreements cannot address issues outside Congress's enumerated powers (those powers specifically granted to Congress in the U.S. Constitution), whereas treaties can. In addition, according to the U.S. Constitution, a treaty can be approved only if at least two-thirds of the Senate votes in favor of it. By contrast, congressional-executive agreements require a simple majority in both houses of Congress to pass.

For this reason, the U.S. government has regularly chosen to use a congressional-executive agreement rather than a treaty as the appropriate mechanism for gaining approval for controversial agreements. Examples of contentious proposals addressed in the form of a congressional-executive agreement include the North American Free Trade Agreement and U.S. entry into the World Trade Organization. This kind of instrument is often chosen when proponents of an agreement believe that it will be difficult to attract the necessary votes in the Senate to pass as a treaty. Congressional-executive agreements should not be confused with executive agreements, which the president alone can approve.

Some critics claim that congressional-executive agreements are unconstitutional because they ignore the treaty process mandated in the Constitution. Federal courts, however, have recognized that some international agreements do not take the form of treaties. They also have held that congressional-executive trade agreements can be seen as grounded in the Constitution on the basis of Congress's power to regulate tariffs and impose commerce duties and the president's power to conduct the nation's foreign affairs.