First of all, it was the view of most judges and scholars, that executive agreements, based solely on presidential power, did not become the „law of the land“ under the supremacy clause, because these agreements are not „treaties“ ratified by the Senate.490 However, the Supreme Court found another basis for compliance with state laws that are anticipated by executive agreements and ultimately relied upon itself on the exercise of the power of the Constitution over the power of external relations within the national government. A treaty is an international agreement established in writing and by international law between two or more sovereign states, whether inscribed in a single instrument or in two or more related acts. Treaties have many names: conventions, agreements, pacts, pacts, charters and statutes, among others. The choice of name has no legal value. Contracts can generally be categorized into one of two main categories: bilateral (between two countries) and multilateral (between three or more countries). Arbitration agreements.- In 1904 and 1905, Secretary of State John Hay negotiated a series of contracts that provide for the general arbitration of international disputes. Article II of the Treaty with Great Britain, for example, provided that „in each particular case, the High Contracting Parties enter into a special agreement before being called before the Permanent Court of Arbitration, clearly specifying the issue and the extent of the powers of arbitrators and setting the deadlines for the formation of the arbitration tribunal and the various stages of the proceedings.“ 460 The Senate approved the British treaty by a constitutional majority, having first amended it by „agreement“ by imposing the word „treaty.“ President Theodore Roosevelt, who called „ratification“ a rejection, sent the treaties to the archives. „In historical practice,“ said Dr. McClure, „the compromise in which disputes have been settled includes both contracts and executive agreements in good numbers,“461 a statement supported by Willoughby and Moore.462 497 539 U.S. 396 (2003). The Court`s opinion in the case of Ladies and Moore v. Regan, 453 U.S. 654 (1981), was rich in learning on many topics with executive agreements, but the preventive force of the agreements, which relied exclusively on the power of the president, was not on the agenda, as the Court concluded that Congress had authorized various presidential actions or had long accepted them in others.
Most executive agreements were concluded in accordance with a treaty or an act of Congress. However, presidents have sometimes reached executive agreements to achieve goals that would not find the support of two-thirds of the Senate.