Executive Agreements Do Not

Dictum in Garamendi acknowledges some of the issues that may be raised about Zschernig. The Zschernig court did not define the language prescribed as a preventive measure in the Constitution and commentators found that a respectable argument can be made that the Constitution does not require a general measure of foreign policy prevention not related to the supremacy clause and beyond the specific prohibitions of the Constitution23Note.B asserts that Article I , the specific prohibitions of Article I , of entering into contracts, of maintaining troops in peacetime and of issuing letters of mark and retaliation, would not have been necessary if a more general and dormant power of external relations had been sought. Similarly, it would not have been necessary to make treaties the supreme law of the country if, apart from the supremacy clause, there was a more general preventive power in foreign policy. See Ramsey, supra. 24Note of powerIn the past that the president is part of the executive conferred on the President by art. II, 1, he has the authority to conduct foreign relations. The Garamendi court raised a fair question as to whether respect for executive external relations required a categorical choice between the opposing theories on the ground, clearly emphasized in Zschernig`s opinions, and conflict predators. Instead, Justice Souter told the Court, a pre-purchase opportunity on the ground may be appropriate when a state simply legislates on foreign policy without seriously claiming a traditional state responsibility, and pre-purchase conditions may be appropriate when a state adopts legislation in an area of traditional liability. , but in a way that influences external relations.25Note 139 U.S. below 419 n111. We must wait for further litigation to see if the Court applies this distinction.26F.

Ginsburg`s dissent in Garamendi, to which the other three judges joined, proposed to limit Zschernig in a manner generally consistent with Justice Souter`s distinction. According to Judge Ginsburg, Zschernig`s preventive measure is most audible when state action “reflects and implies critical state policy.” 539 U.S.