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. The U.S. Constitution does not explicitly give a president the power to enter into executive agreements. However, it may be authorized to do so by Congress or may do so on the basis of its foreign relations management authority. Despite questions about the constitutionality of executive agreements, the Supreme Court ruled in 1937 that they had the same force as treaties. As executive agreements are made on the authority of the president-in-office, they do not necessarily bind his successors. In the summer of 1787, delegates to the Constitutional Convention debated the structure and responsibilities of a new legislative body. One of the questions they asked was whether the power of contracting lies within the legislative or executive department? Depending on the statutes of the federal government, a contract could be concluded with the agreement of nine of the thirteen states or two-thirds. Some delegates, such as Charles Pinckney of South Carolina, insisted that the Senate, where each state is represented on an equal footing, should have exclusive power to enter into contracts. Alexander Hamilton argued that the executive should exercise powers over external relations and should therefore have the power to enter into contracts « with the Council and the approval of the Senate. » In the end, Hamilton`s argument proved persuasive.
What is the obligation that the president imposes on the United States when he enters into an executive agreement? It is clear that it can impose international obligations with potentially serious consequences, and it is equally clear that these obligations can be extended over a long period of time.488 The nature of national obligations imposed by executive agreements is not so obvious. Do contracts and executive agreements have the same impact on domestic policy?489 contracts pre-exist state law by applying the supremacy clause. While agreements made under the authorization or contractual commitment of Congress also stem from the preventive force of the supremacy clause, this textual basis for the pre-emption period is probably absent for executive agreements based exclusively on the president`s constitutional powers. Most of the treaties submitted to the Senate received the advice of the Senate and approved ratification.