Separation of Powers: Introduction to the Study of Executive Agreements

The text of the Constitution is silent on the topic of executive agreements. This essay attempts to overcome that silence by examining the doctrine of separation of powers as found in the writings of Locke and Montesquieu, the historical material leading up to the Constitutional Convention, and the early practice of the framers under the Constitution. From the theory of executive power thus deduced the most important issues surrounding executive agreements can be addressed. In brief, while the text of the Constitution is silent about executive agreements, the framework upon which that text rests is not. A proper understanding of separation of powers provides an introduction to the study of the existence, scope, and control of executive agreements. This is the first of two essays on the topic of executive agreements. A second essay, appearing next year in the American Journal of Jurisprudence, will examine in detail all military-related agreements between 1946 and 1976