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International Agreements without the
Advice and Consent of the Senate.
The Constitution of the United States' provides that the President “ shall have power by, and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” Judge Story, in his work on the Constitution, in commenting on this passage, says: "The power to make treaties is by the Constitution general, and, of course, it embraces all sorts of treaties for peace or war;
Z injuries or payment of debts; for the recognition and enforcement of principles of public law, and for any other purposes which the policy or interests of independent sovereigns may dictate in their intercourse with each other."2
From this it might be supposed that an agreement with a foreign state, to which the approbation of the Senate has not been given, is a thing unknown to our constitutional practice. This is, however, not the fact, and it will be the purpose of this article to point out that there are certain classes of international agreements, in the making of which the Senate does not have a share.
The Constitution itself recognizes certain international agreements which are not treaties. While the States are forbidden to enter into “any treaty, alliance or confederation,” they may, with the consent of Congress, make agreements and compacts with each other or with foreign powers. 3 / The discussion therefore resolves itself into two parts, the first of which is,
AGREEMENTS BY THE STATES.
The Articles of Confederation forbade the States, without the consent of Congress, to "enter into any conference, agreement, alliance or treaty with any king, prince or state,” or, without the same assent, “to enter into any treaty, confederation or alliance” with each