The only issue where treaties are more common than executive agreements is extradition, where 94% of agreements are concluded as treaties. One likely explanation for this phenomenon is uncertainty about the constitutionality of using executive arrangements to hand over individuals to foreign nations. The uncertainty stems from Valentine v. United States, footnote 94, where the Supreme Court ruled that extradition must be authorized “by the law of Congress or by the terms of a treaty.” Valentine, however, did not consider whether extraditions under agreements between Congress and the executive branch are constitutional. Instead, the court considered whether the U.S. can extradite citizens in the absence of agreement or legislative authority. Therefore, the reference to “acts of Congress” could have been “pure dicta.” .
October 16, 2021