BELMONT TO MEDELLIN: THE “EXECUTIVE EXCEPTION” TO LAWMAKING

Abstract

Sole executive agreements are made pursuant to the President’s independent constitutional authority outside of the Treaty Clause and textual support for this authority is found in four separate provisions within Article II of the Constitution. There is little doubt that the President has the constitutional authority to enter into these types of agreements, however, there is considerable debate concerning the scope of that authority. One problem with sole executive agreements is the fact that the President is capable of unilaterally creating law that can displace contradicting state law. The ability of the President to do this is inconsistent with the separation of powers doctrine which states that the President is not a lawmaker. Unlike treaties and congressional executive agreements, there is no structural mechanism restricting presidential authority concerning sole executive agreements. In an attempt to balance the President’s independent constitutional authority to enter into sole executive agreements and the separation of powers doctrine, the Supreme Court has created an exception to the general rule that the President is not a lawmaker. This exception I have termed the “Executive exception” to lawmaking. The Executive exception evolved and has been refined during the past seventy years or so through a series of cases called the settlement cases. The settlement cases are comprised of United States v. Belmont, United States v. Pink, Dames & Moore v. Regan, and American Insurance Association v. Garamendi. The fifth case, Medellin v. Texas, was not a settlement case per se, but it was the last in the line to discuss the issue. This article takes a different view of these cases. Rather than seeing the cases as half-hazard or incongruent group of decisions, this article asserts that the cases represent a systematic refinement of the Executive exception culminating in Medellin v. Texas. In creating this principle, the Supreme Court has been very careful and has tried to keep the idea confined to a specific set of circumstances expanding it incrementally when the need arises. In doing so, the Court has maintained a delicate balance between the President’s independent constitutional authority and the separation of powers.