October 6, 1978

78-55 MEMORANDUM OPINION FOR THE ASSISTANT

ATTORNEY GENERAL, ANTITRUST DIVISION

The President— Authority to Participate in

International Negotiations— Trade Act of 1974

(19 U.S.C. § 2101)— Participation in ProducerConsumer Fora

You have requested our views on two questions presented by the State 

Department’s participation in “ producer-consumer fora” and certain other 

international negotiations aimed at stabilizing international commodity markets. The first question is whether the President, through the Secretary of State, 

has authority to participate in such negotiations absent statutory authorization. 

The second question is whether the Trade Act of 1974 (See 19 U.S.C. § 2101 et

seq.) authorizes or permits such participation.

It is our opinion (1) that the President has constitutional authority to 

participate in negotiations of this kind through the Secretary of State, and (2) 

that the Trade Act of 1974 does not prohibit such participation. We should add, 

however, that the question of the President’s authority in that regard is quite 

distinct from the question whether any agreement or recommendation accepted 

by the President or the Secretary of State would have any effect under the law 

of the United States. We understand that your principal concern is with the 

impact of these agreements under the antitrust laws. Because there is considerable uncertainty regarding the legal effect of naked executive agreements 

generally, legislation prescribing this impact may be desirable as a matter of 

policy.

I. The Background

The facts are as follows: A producer-consumer forum (PCF) is an 

intergovernmental body convened for the purpose of making recommendations 

or agreements concerning international trade in particular commodity markets. 

Representatives of private industry are in attendance, but their official role is 

limited to rendering advice to Government delegates. Recommendations or

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agreements reached at a PCF are made by and among the government delegates 

and are submitted for implementation to each member government. Member 

governments and private parties within member countries are not bound by 

these recommendations or agreements. Whenever a government agrees with a 

PCF recommendation, it may take informal, nonmandatory action to implement the recommendation. This action would normally be directed at the 

affected industry within that country. Formal implementation by treaty or 

legislation is uncommon. As a matter of practice, the United States takes no 

steps, either formal or informal, to implement PCF recommendations or 

agreements within the United States.

II. The Constitutional Issue

Since the founding of our Nation the President and his representatives have 

engaged in negotiations with representatives of foreign countries over matters 

of national and international concern. Many of these negotiations have 

produced formal or informal agreements, and many have never been submitted 

to the Senate for approval under the treaty clause or to the full Congress for 

implementation or approval by statute or joint resolution. See L. Henkin, 

Foreign Affairs and the Constitution 173 (Foundation Press 1972).

The legal status of executive agreements that have not been authorized or 

approved by Congress or by the Senate under the treaty clause is a subject of 

considerable complexity, but we think there can be no real argument over the 

threshold issue: The President and his representatives have authority to engage 

in international negotiations on any subject that has bearing on the national 

interest, even in the absence of prior statutory authorization. The source of this 

negotiating authority is the Constitution itself. Negotiation is a necessary part 

of the process by which foreign relations are conducted, and the power to 

conduct foreign relations is given to the President by the Constitution.1 ,

The real question in any given case is whether and to what extent the 

President’s action in negotiating or concluding an international agreement 

affects the law of the United States, the legal obligations or powers of the 

United States, or the rights of its citizens or other persons subject to Federal 

law. In the absence of prior statutory authorization, the answer to this question 

turns in large part upon the procedures that are followed after an international 

agreement has been concluded. If the agreement is submitted to the Senate for

'Indeed, quite apart from the question of authorization, we think it doubtful that the President’s 

power to negotiate with foreign governm ents over subjects o f national concern can ever be subject 

to unqualified restriction by statute. The President can make treaties on virtually any subject, and 

treaties can supplant prior statutes. See, Cook v. United States 288 U .S. 102 (1933). We think it 

follows that Congress could not make it unlawful for the President to conclude treaties on particular 

subjects (even on subjects within the legislative jurisdiction o f Congress), or to participate in the 

antecedent negotiations. M oreover, we think it doubtful that Congress could make the legality o f a 

particular negotiation depend upon the submission of any resulting agreement to the Congress or to 

the Senate under the treaty clause. See. United Stales v. Curtiss-Wright Export Corp., 299 U.S. 

304, 319 (1936) (Congress "pow erless” to invade field of international negotiation).

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approval under the treaty clause, it becomes a law of the United States upon the 

approval of two-thirds of the Senators present; and, as a matter of municipal 

law, it then has the same force and effect as an act of Congress if it is 

self-executing. If the agreement is submitted to the full Congress and is 

approved by joint resolution or is implemented by statute, it is likewise entitled 

to the force and effect of an act of Congress to the extent of the approval or 

implementation.

Finally, if the agreement is approved neither by the Senate (as a treaty) nor 

by the Congress (through joint resolution or statute), it may yet have some legal 

effect, depending on the subject matter, see, United States v. Belmont, 301 

U.S. 324 (1937). But here we encounter a series of problems for which, as 

Professor Henkin has said, there is no real legal solution. As a matter of 

domestic law the legal effect of a naked executive agreement is uncertain. On 

the negative side, in one of the few cases on this subject the Fourth Circuit held 

that in the face of a valid, conflicting statute a naked executive agreement can 

have no force or effect as a law or obligation of the United States. United States

v. Guy W. Capps, Inc. 204 F. (2d) 655 (4th Cir. 1953) (Parker, J.), a jfd on

other grounds, 348 U.S. 296 (1955).

The agreements or recommendations made as a result of the negotiations 

conducted in a PCF do not purport to be self-executing or binding on the parties 

themselves or on the private participants. The participating governments are 

free to take whatever action they wish to implement the recommendations or 

agreements. The United States generally takes no action, formal or informal, to 

implement them. In accordance with the principles we have just described, we 

think that the President, through the Secretary of State and his representatives, 

has constitutional authority to participate in PCF negotiations. The fact that the 

President does not elect to submit the ensuing agreements to the Senate or the 

Congress for approval does not in our judgment deprive him of such 

negotiating authority.2 Under both the agreements and the Constitution, the 

President is free to decide what implementing action, if any, he will take. The 

legal effect of these agreements or actions taken pursuant to them upon public 

or private rights or liabilities under the antitrust laws will depend largely on 

those laws. To the extent that this impact is determined by the status of these 

agreements as laws or obligations of the United States, we think there is 

substantial doubt that agreements of this kind can be regarded as laws or 

obligations of the United States absent implementing legislation or approval 

under the treaty clause.

2We are supported in this conclusion by Consumers Union o f U .S., Inc. v. Kissinger, 506 F. (2d) 

136 (D.C. Cir. 1974), which is very nearly in point. We express no opinion on the question 

whether any "agreem ent” concluded pursuant to PCF negotiations is an "international agreem ent” 

in the Case Act sense. See I U .S.C . § 112b.

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III. The Statutory Issue

You asked whether the Trade Act of 1974 authorizes or permits the President 

to participate in PCFs through the Secretary of State. Since we have already 

concluded that the Constitution provides a source of negotiating authority, this 

question is significant only if Congress, by enacting the Trade Act of 1974, 

preempted the field and provided, through legislation, the exclusive means by 

which negotiations of this kind may be conducted.

As noted above, we believe that there may be a constitutional limitation on 

the power of Congress to restrict the power of the President to negotiate with 

foreign governments over matters of national concern. For that reason alone, 

we would be very reluctant to construe an act of Congress as an attempt to 

dictate in advance either the mode of an international negotiation or the criteria 

for ultimate agreement. The legal force of a particular international agreement 

may depend upon the presence or absence of congressional authorization; but, 

as a matter of constitutional principle, the President must be free to negotiate 

agreements in his conduct of foreign affairs and to subject them to ratification 

or legislative implementation if he wishes them to have a desired force or effect 

under our law.

In any case, we do not construe the Trade Act of 1974 as an attempt to 

prevent the President from engaging in informal, nonbinding negotiations such 

as those involved in a PCF. The Act provides a mechanism for negotiation and 

administrative action with respect to many trade-related questions, including 

the ones dealt with in PCFs. In addition, the Act gives the President powers that 

he clearly would not have in the absence of some congressional authorization 

(see, e.g., 19 U.S.C. § 2253) (power to increase duties on imported articles 

causing serious competitive injury to domestic industry). It is plain that if the 

President wishes to exercise the specific powers conferred by the Act, he must 

do so pursuant to the procedures and in accordance with the standards 

prescribed in the Act. But we find no intent to restrict Presidential participation 

in international negotiations leading to recommendations which do not bind the 

United States and do not purport to have the force and effect of law. See,

Consumers Union o f U.S. Inc. v. Kissinger, supra.

L a r r y A . H a m m o n d

Deputy Assistant Attorney General

Office of Legal Counsel

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