미국 헌법상 통상협정체결에 관한 정부ㆍ의회간 권한 배분

다국어 초록 (Multilingual Abstract)

Article Ⅱ, section 2, clause 2 of the Constitution of the United States assign certain power that by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur, to the President. On the other hand, the Congressional-Executive agreement is permitted by simple majority of both Houses. Accordingly, the Constitution of the United States vests a treaty-making power in the President. However, the Congressional-Executive agreement is used mostly at least for trade agreements because of the special historical situation.
Article Ⅰ of the Constitution vests all legislative powers including the power to regulate commerce with foreign nations in Congress, but it dose not mean that Congress has the foreign commerce power exclusively. The Constitution confers 'legislative powers' upon a Congress as a law-maker, so the President is assigned the power to negotiate and conclude agreements about commerce with foreign nations by the federal law being made by Congress. This Congressional-Executive agreement takes effect by simple majority of both houses.
In this case, there have been heated discussions on the Interchangeability of Treaty with Congressional-Executive Agreement and the Constitutionality of such an agreement. But, in the end, Congressional-Executive Agreement is accepted for wide use, for the foreign commerce as well, by treaty-making practice and also the Court seems not to against it. The Congressional-Executive agreement for foreign commerce seems to be caused by the particular constitutional structure of the United States and practices for distribution of power between the treaty-making power of the President and the legislative power of Congress.