It solves the case---House will be obligated to give domestic effect to the treaty, resulting in the same effect on IP.

The US Constitution provides that the president “shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” (Article II, section 2). Treaties are binding agreements between nations and become part of international law. Treaties to which the United States is a party also have the force of federal legislation, forming part of what the Constitution calls “the supreme Law of the Land.”

The majority of international agreements into which the United States enters, however, are executive agreements. According to a 2018 Congressional Research Service (“CRS”) Report, “[c]ommentators estimate[d] that more than 90% of international legal agreements concluded by the United States have taken the form of an executive agreement.”7 There are three categories of executive agreements: 1) congressional-executive agreements, 2) executive agreements made pursuant to a treaty, and 3) sole executive agreements.

As the name suggests, congressional-executive agreements are entered into by the president “with the concurrence of a simple majority” by both the House of Representatives and the Senate.8 Congress must pass implementing legislation, “which includes all the changes to U.S. law required to bring the US into compliance with the agreement.”9 There are two types of congressional-executive agreements: ex ante and ex post. In ex ante agreements, the president “operates pursuant to preexistent authority.”10 In other words, Congress has already passed a statute, which the president has signed into law, that authorizes the president to negotiate and conclude the agreement.11 In ex post agreements, the president negotiates an international agreement “without any specific . . . statutory authorization in advance of the negotiations.”12 He or she then submits the agreement to both houses of Congress for their approval.13 Like domestic legislation, the agreement must pass both chambers by a simple majority, and the president must sign it.14 If Congress makes any modifications to the agreement, the President must present the proposed changes to the “original negotiating state for approval again.”15

Executive agreements made pursuant to treaties are agreements that the president enters into based on “authority created in prior Senate-approved [i.e., two-thirds approved], ratified treaties.”16 Finally, sole executive agreements are agreements into which the president enters “based upon a claim of independent presidential power in the Constitution.”17

Increasingly, courts have come to view sole executive agreements in many instances as the functional equivalent of treaties on the domestic (i.e., US) legal plane. For example, in American Ins. Ass’n v. Garamendi, the US Supreme Court held that “valid executive agreements are fit to preempt state law, just as treaties are.” 539 U.S. 396, 416 (2003).

The legitimacy of a sole executive agreement depends on the agreement’s subject matter. If the agreement “address[es] an area where [the president] has clear, exclusive constitutional authority,” then there is a stronger argument that the agreement is “legally permissible regardless of congressional disagreement” (if such disagreement is evidenced).18 However, where the president’s “constitutional authority over the agreement’s subject matter is unclear,” then reviewing courts may consider whether Congress implicitly approves of, is silent on, or disapproves of the agreement when determining whether the agreement is legitimate.19

How Does an Executive Agreement Affect US Law?

Whether and the extent to which an executive agreement will affect domestic US law depends on whether the provisions of the agreement are “self-executing” or “non-self-executing.” “Self-executing” provisions “have the force of domestic law without the need for subsequent” legislation.20 “Non-self-executing” provisions, on the other hand, usually require Congress to “pass legislation implementing the provision in a domestic statute” to authorize US agencies “to carry out the functions and obligations contemplated by the agreement or to make them enforceable in court.”22