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So a treaty requires the consent of the United States Senate to come into effect while an executive agreement does not.

However, beyond that, what are the differences between the two? Are there things that must be done via a treaty as opposed to an executive agreement? Are executive agreements considered binding by US Courts? Are the two types of agreement generally used for different purposes or is there significant overlap?

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As it turns out, the State Department has a web page dedicated to answering this very question. Here's what it says:

As explained in greater detail in 11 FAM 721.2, there are two procedures under domestic law through which the United States becomes a party to an international agreement. First, international agreements (regardless of their title, designation, or form) whose entry into force with respect to the United States takes place only after two thirds of the U.S. Senate has given its advice and consent under Article II, section 2, Clause 2 of the Constitution are "treaties." Second, international agreements brought into force with respect to the United States on a constitutional basis other than with the advice and consent of the Senate are "international agreements other than treaties" and are often referred to as "executive agreements." There are different types of executive agreements.

So, a treaty is a kind of executive agreement, one in which two thirds of the senate has provided "advice and consent." That language comes from Article II, Section 2, Clause 2 of the Constitution. This clause defines the procedure and authority for creating treaties. Its text:

He 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 clause defines the procedure and authority for treaties, but not so for other executive agreements. However, the State Department web page did mention something called "11 FAM 721.2". I Googled that and found this page, and as it turns out, section 721.2 goes into more detail about the difference between treaties and executive agreements.

This page outlines three kinds of executive agreements that are not treaties:

(1) Agreements Pursuant to Treaty

The President may conclude an international agreement pursuant to a treaty brought into force with the advice and consent of the Senate, the provisions of which constitute authorization for the agreement by the Executive without subsequent action by the Congress;

(2) Agreements Pursuant to Legislation

The President may conclude an international agreement on the basis of existing legislation or subject to legislation to be enacted by the Congress; and

(3) Agreements Pursuant to the Constitutional Authority of the President

The President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by the Congress in the exercise of its constitutional authority. The constitutional sources of authority for the President to conclude international agreements include:

(a) The President's authority as Chief Executive to represent the nation in foreign affairs;

(b) The President's authority to receive ambassadors and other public ministers;

(c) The President's authority as "Commander-in-Chief"; and

(d) The President's authority to "take care that the laws be faithfully executed."

Essentially, the President can enter an executive agreement without the "consent and advice" of two thirds of the senate if a previous treaty or legislation gives him the power to do so, or if he is doing so according to another constitutional duty.

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    I see. I had asked because I was curious about whether the president's authority to enact executive agreements is a power inherent to his office or whether its rooted in authority that the senate has previously awarded him. Seems like it's a bit a of both through with more emphasis on the latter. The President's authority as "Commander-in-Chief" certainly explains FDR's wartime ability to engage in meaningful negotiations with the other allies in the various WWII conferences without requiring senate consent for everything. Thanks for the crystal clear answer! – ivanatpr Nov 12 '13 at 19:42
  • "if a previous treaty or legislation gives him the power to do so" Or if he is going to submit the agreement to Congress as legislation. – user102008 May 27 '15 at 3:02
  • Avi, What you ended with cannot occur: "Essentially, the President can enter an executive agreement without the "consent and advice" of two thirds of the senate if a previous treaty or legislation gives him the power to do so, or if he is doing so according to another constitutional duty" Previous legislation or treaty does not trump the Constitution. Section two of the constitution contains the treaty clause and states that any agreements between the US and other countries must have 2/3rds consent of the Senate. – user6164 Sep 2 '15 at 18:07

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