In part because the powers of Congress and the president have been widely interpreted, most of the agreements proposed as treaties could have been proposed as executive agreements of Congress. That`s why the U.S. government has often chosen to use congressional executive agreements over treaties for controversial agreements that are unlikely to get the super-majority required in the Senate. The 1992 North American Free Trade Agreement (NAFTA) and the agreement by which the United States became members of the World Trade Organization (WTO) in 1995 are examples of controversial proposals that are dealt with in the form of agreements between Congress and the executive branch. An executive agreement is an agreement between heads of government of two or more nations that has not been ratified by the legislature, since the treaties are ratified. Executive agreements are considered politically binding to distinguish them from legally binding contracts. In the United States, executive agreements are made exclusively by the President of the United States. They are one of three mechanisms through which the United States makes binding international commitments. Some authors view executive agreements as treaties of international law because they bind both the United States and another sovereign state. However, under U.S. constitutional law, executive agreements are not considered treaties within the meaning of the contractual clause of the U.S. Constitution, which requires the Council and the approval of two-thirds of the Senate to be considered a treaty. Executive agreement of Congress, a binding agreement between the United States and a foreign country, which is easier to enact than a formal treaty, but is technically more limited.
In the United States, executive agreements are binding at the international level when negotiated and concluded under the authority of the President on foreign policy, as commander-in-chief of the armed forces or from a previous congressional record. For example, the President, as Commander-in-Chief, negotiates and concludes Armed Forces Agreements (SOFAs) that govern the treatment and disposition of U.S. forces deployed in other nations. However, the President cannot unilaterally enter into executive agreements on matters that are not in his constitutional jurisdiction.