DOCSLIB.ORG

Shall the Executive Agreement Replace The

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Shall the Executive Agreement Replace The SHALL THE EXECUTIVEEXECUTIVE AGREEMENT REPLACEREPLACE THE TREATY? EDWIN BORCHARDt IN recent years many political leaders and publicists have sought toto prove that the treaty-making process, requiring the approval of two-thirds of the Senate, has become too cumbersome, inefficient, and "undemo~"undemo- cratic." Because of well established "usage," they claim, it has become valid and desirable to substitute forfor the treatytreaty the executive agreement, preferably without congressional approval or, ifif necessary, with approval by a majoritym~jority of Congress.Congress.'1 Advocates of the change point out that some 1300 executive agreements have been concl.udedconcluded during our national his-his~ tory, as contrasted with some 900 treaties. It isi8 not mentioned, however, that up to 1928 only 15 treaties had been rejected by the Senate, usually for good reasons; that 47 were not acted upon; and that while some 160 treaties have been amended by thethe Senate,2Senate,2 in most cases the changes havehnve benefited the nation. BASES OF THE PROPOSALS FOR CHANGE The recent proposals for a change in the Constitution, either with or , without benefit of a constitutional amendment, have their origin in several grievances and are said to derive moral support from several recent deci-deci~ sions of the Supreme Court. The modern "reform" movement may be said to have begunbegun, with Secretary Hay's denunciation of the Senate for substituting the word "treaty" for the words "special agreement" in the projected arbitration treaties of 1904.1904.88 The movement received particular impetus from, and finds its chief present source in, the belief that the two~two- thirds rule prevented American ratification of the Treaty of Versailles, and thus, to use President Wilson's phrase, "broke the heart of the world." ft Justus S. Hotchkiss Professor of Law, Yale Law School. 1. See MCCLURE,McCLuRE, INTERNATIONAL EXECUTIVE AGREEMENTSAGREEmaENTS (1941) 363,363. He makes thethe concession, intendedintended to be generous, thatthat unimportant, non-controversial matters may still be left to treaty and Senate "ratification," but that important and controversial matters become thethe subject of executive agreement. Id.ld. at 378. Senator Taft remarked inin the debate on the Panama Resolution, December 3, 1942, that "As a matter of fact, no treaties of any importance have been submitted to the Senate since I have been a Member of the body." 88 CONG.CoNG. Rac.REc. 9276 (1942). ' 2. See DANGERFIELD, IN DEFENSE OF THE SENATE: A STUDY IxIN TPEATYTREATY MAKtMGMmlUNG (1933) 256. While only 1.8 per cent of the treaties considered were actually rejected by the Senate, such figures are not conclusive, since these treatiestreaties differed inin importance. 3. See also 1 BRYCE, A7rERICANAMERICAN COMMONWEALTH (1913) 109. 664 1944J1944] EXECUTIVEEXECUTIVE AGREEMENTS AND TREATIESTREATIES 665 ButBut thisthis argumentargument isis self-defeating, since, asas recentrecent admissionsadmissions of thethe un-un­ workability andand improprietyimpropriety ofof thethe TreatyTreaty of VersaillesVersailles demonstrate,demonstrate, thethe Treaty deserved defeat becausebecause itit waswas not a treaty ofof peacepeace butbut aa declara-declara­ tiontion ofof war.war.44 EvenEven atat thethe time,time, informedinformed studentsstudents realizedrealized thatthat it waswas likelylikely toto proveprove a charter forfor thethe productionproduction ofof conflictconflict and war.war. ItIt must bebe ad-ad­ mitted, however, that only aa few Senators, such as thethe latelate Robert M. La FolletteFollette of Wisconsin,·Wisconsin, placedplaced theirtheir opposition toto thethe TreatyTreaty on this ground. NorNor was ratification thwarted,thwarted, as it might well have been, because ArticlesArticles X and XVI of thethe Covenant purportedpurported to commit the UnitedUnited States toto a "blank check" diplomacy, creating an obligation toto go toto war if neces-neces­ sarysary inin order toto maintain the status quo of 1919. The real cause of thethe Treaty's defeat was that President Wilson\Vilson requestedrequested Democratic Sena-Sena­ torstors not toto accept thethe Lodge reservations, which,whicll, it maymay be added, were acceptable toto the British and many students of the subject. u The apprehensions of recent opponents of thethe two-thirdstwo-thirds rule have been aroused by the belief that retention of the rule might prevent the associa-associa­ tion of thethe United States with a projected international organization,"organization,o of a character still unknown. An effort was made to preserve the Senate preroga-preroga­ tive in the Connally Resolution,Resolution/7 which insisted that "constitutional proc-proc­ esses" be observed by the United States in joining any peace organization and further provided that any treaty designed to produce international co­co- operation require approval of two-thirds of the Senate. The counter­counter- attack has been vigorous. Professor Corwin has interpreted the term "con- 4. See Bullitt, The Tragedy 0/of Versailles, Life, March 27, 1944, p. 99. NV.W. D. HerridgeHerridge, former Canadian Minister to thethe United State:.,Statc,, ~aidsaid that: "Versailles was not a treaty of peace but a declaration of war."var." HER.l'JltGE,Hmantpm "'menWincH KnmK DnoFOF REVOLU­REvOLU- TioN?TION? (1943) 23. See also the late Senator Robert M. La Follette's contempQrar:rcontemporary char­char- acterization of the "peacemakers" of Versailles as "war makers:' Reprinted in The Progressive, June 26, 1944, p. 1, col. 3; and Mrs. Clare BoaUlBooth Luce's statement: "This ",,'arwar began at VersaillesVersailles..."••• " N. Y. Times, June 25,25, 1944, § 1, p. 23, col. 5. 5.5. See Thomas Lamont's letter toto thethe Editor of the New York Times: "It wasvas upon the Administration's insistenceinsistence thatthat the DenlocraticDemocratic Senators voted against acceptance of the Covenant with reservations and therebythereby automatically voted to defeat the treaty."treaty." N. Y. Times, April 23, 1944, § 4, p. 8, col. 6. See Earl Grey's letterletter to the LondouLondon Times,Tin'es, which was endorsed by the British and FrencllFrench press, reprintedreprinted in N. Y. Times, Feb. 1,1, 1920, p. 1,1, col. 8; FLEMING,FLEIXING, TETHE Ul'o"lTEDUNITED STATES A:WAND TH&THE LE.'\GUELAGU OF NATIoNsN/<TIo::s (1932) 311-13.311-13. See alsoalso BONSAL,BoNsAi., UNFINISHEDUzmrNsHan BUSlliESSBUsiESs (1944) 2i8.278. For aa statement of th>1tha negligible part played byby thethe two-thirds rule inin thethe defeatdefeat of treaties,treaties, secsee 1IcQendon,McClendon, TheThe Two-Thirds Rule inin Senate Action Upon Treaties,Trcaties, 1789-19011799-1901 (1932) 26 AM.Am. J. h:T.IrT. L.L 37,55.37, 55. 6.6. See CoLEGROTI:,CoLErovE, THETHE AMERICANAmTERIcAN SENATE AND WOnLDWVoIn PEAcePnAcz (1944)(1944);j Co:lWUl,Comn:, THETE CONSTITUTIONCONsTIT=ON AND WORLD ORGAl'o"lZA1'.lONORGANIZATION (1944)(1944) 31 etct seq.seq. 7.7. SEN.SEr.REs. No. 192,192,8989 CoNG.CONG. REc.,R., Nov.Nov. 5,5, 1943,1943, at 9329;9329; CoRWUl,Colw., op:oP' cit.cit. supramsvra note 6,6, atat 51-52.51-52. SeeSee alsoalso thethe plankplank on foreign affairsaffairs of thethe RepublicanRepublican PartyParty platform,platform, JuneJune 27, 1944,1944, whichwhich tooktook thethe precaution ofof insistinginsisting onon Senate consent not only forfor aa "treaty""treaty" but alsoalso forfor an "agreement.""agreement." N. Y.Y. Times, June 28,1944,28, 1944, p. 1,1, col.col. 2-3.2-3. 666 THE YALE LAW JOURNAL [Vol. 53 : 604 stitutional processes" in the Connally Resolution as being "non-committal" and has observed that the reference to "any treaty" merely means that if a treaty is made, the Senate will of course have to approve it.8 More recently, Congressman Bloom, the Chairman of the Committee on Foreign Affairs of the House of Representatives, has argued that the House should be given a coordinate share with the Senate in the "ratification" of treaties by mere majority vote. In dismissing the historical fact that the proposal of James Wilson to this effect was defeated in the Constitutional Conven- tion of 1787, by ten votes to one,' ° Mr. Bloom alleges that the reasons11 for excluding the House have become obsolete and that a more democratic method of treaty approval is now necessary. Some of the original objections to House participation in the treaty- making process-the necessity for secrecy and speed, the short term of House members, the fluctuating membership-were, as Congresxnan Bloom urges in his pamphlet, probably valid only so long as the Senate was considered to be an executive council which shared in the actual negotia- tion of treaties. The fact that the Senate is now merely asked to give "con- sent" by the constitutional two-thirds vote to treaties pieviously negotiated by the executive-a fait accompli-does not by itself invalidate the tradi- tional doctrine. At least one of the other reasons originally underlying the two-thirds requirement-the desire of the small states to prevent imposition of treaties by a mere majority-retains its cogency. It is well known that some delegates in the ratifying conventions thought the two-thirds require- ment too small, rather than too large a prote'tion. More important than the historical reasons, in justifying continuation of decisive Senate con- trol, is perhaps the need for counteracting the recent unprecedented infla- 8. See CORWIN, op. cit. supra note 6, at 52. Mr. Corwin objected to the saving clause "or agreement" in the Republican Party platform. N. Y. Times, June 30, 1944, p. 20, col. 6. 9. BLOOM, TREATY-MAKING PowER: FOURTEEN POINTS SHOWING WHY THE TREATY- MAKING POWER SHOULD BE SHARED BY THE HOUSE OF REPRESENTATIVES (1944). 10. See 2 FARRAxD, RECORDS OF THE FEDERAL COvENoTio (1937) 538; CORWIN, op. cit. supra note 6, at 33. Mr. Corwin states: "Not until September 7 (1787), ten days before its final adjournment, did the Convention adopt the existing provision [allowing participation by the President] incidentally rejecting by a vote of ten States to one a proposal by Wilson of Pennsylvania that treaties should be made by the President with the advice and consent of the Senate and House of Representatives," Id.
Load more

Recommended publications
  • A Climate Treaty Without the US Congress: Using Executive Powers to Overcome the ‘Ratification Straitjacket’
    Crawford School of Public Policy Centre for Climate Economics & Policy A climate treaty without the US Congress: Using executive powers to overcome the ‘Ratification Straitjacket’ CCEP Working Paper 1513 Nov 2015 Luke Kemp Fenner School of Environment and Society, The Australian National University Abstract The issue of US ratification of international environmental treaties is a recurring obstacle for environmental multilateralism, including the climate regime. Despite the perceived importance of the role of the US to the success of any future international climate agreement, there has been little direct coverage in terms of how an effective agreement can specifically address US legal participation. This paper explores potential ways of allowing for US legal participation in an effective climate treaty. Possible routes forward include the use of domestic legislation such as section 115 (S115) of the Clean Air Act (CAA), and the use of sole-executive agreements, instead of Senate ratification. Legal participation from the US through sole-executive agreements is possible if the international architecture is designed to allow for their use. Architectural elements such as varying legality and participation across an agreement (variable geometry) could allow for the use of sole-executive agreements. Two broader models for a 2015 agreement with legal participation through sole-executive agreements are constructed based upon these options: a modified pledge and review system and a form of variable geometry composed of number of opt-out, voting based protocols on specific issues accompanied with bilateral agreements on mitigation commitments with other major emitters through the use of S115 and sole-executive agreements under the Montreal Protocol and Chicago Convention (Critical Mass Governance).
    [Show full text]
  • Domestic Relations, Missouri V. Holland, and the New Federalism
    William & Mary Bill of Rights Journal Volume 12 (2003-2004) Issue 1 Article 5 December 2003 Domestic Relations, Missouri v. Holland, and the New Federalism Mark Strasser Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Family Law Commons Repository Citation Mark Strasser, Domestic Relations, Missouri v. Holland, and the New Federalism, 12 Wm. & Mary Bill Rts. J. 179 (2003), https://scholarship.law.wm.edu/wmborj/vol12/iss1/5 Copyright c 2003 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj DOMESTIC RELATIONS, MISSOURI v. HOLLAND, AND THE NEW FEDERALISM Mark Strasser* INTRODUCTION Over the past several years, the United States Supreme Court has been limiting Congress's power under the Commerce Clause and under Section 5 of the Fourteenth Amendment.' During this same period, the Court has emphasized the importance of state sovereignty and has expanded the constitutional protections afforded the states under the Tenth and Eleventh Amendments. 2 These developments notwithstanding, commentators seem confident that the treaty power is and will remain virtually plenary, even if the federal government might make use of it to severely undermine the dignity and sovereignty of the states.3 That confidence is misplaced. While it is difficult to predict what the Court would do were an appropriate opportunity to present itself, the doctrinal explanations that would be necessary to support a much less robust treaty power would be much easier to make than most commentators seem to realize, even if one brackets recent developments in constitutional law.
    [Show full text]
  • Laws As Treaties?: the Constitutionality of Congressional-Executive Agreements, 99 MICH
    Michigan Law Review Volume 99 Issue 4 2001 Laws as Treaties?: The Constitutionality of Congressional- Executive Agreements John C. Yoo University of California at Berkeley School of Law (Boalt Hall) Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, International Law Commons, Legal History Commons, President/Executive Department Commons, and the Supreme Court of the United States Commons Recommended Citation John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 MICH. L. REV. 757 (2001). Available at: https://repository.law.umich.edu/mlr/vol99/iss4/3 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. LAWS AS TREATIES?: THE CONSTITUTIONALITY OF CONGRESSIONAL-EXECUTIVE AGREEMENTS John C. Yoo* TABLE OF CONTENTS INTRODUCTION ................................................................................................... 758 I. CONGRESSIONAL-EXECUTIVE AGREEMENTS AND THE INTERNATIONALIST VISION .......................... ....................................... 764 A. The Current Importance of Congressional-Executive Agreements ................................................................ ....................... 764 1. The Explosion of Congressional-Executive
    [Show full text]
  • Status of Forces Agreements: the American Experience
    St. John's Law Review Volume 35 Number 2 Volume 35, May 1961, Number 2 Article 7 Status of Forces Agreements: The American Experience Edward D. Re Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. STATUS OF FORCES AGREEMENTS: THE AMERICAN EXPERIENCE EDWARD D. IRE " INTRODUCTION O Fthe many legal problems that followed the close of World War II, few indeed have been so thoroughly examined, if not vehemently debated, as those stemming from the station- ing of American servicemen on friendly foreign soil. Per- haps no treaty has been so severely criticized as the NATO Status of Forces Agreement. It has been stated that "this unprecedented Agreement reflects a callous disregard of the rights of American Armed Forces personnel," and that it amounts to "penalizing the American soldier in an effort to please our NATO allies."' The legal criticism fundament- ally stemmed from the belief that "the rule of international law as laid down by Chief Justice John Marshall [in the Schooner Exchange case] . is that troops of a friendly nation stationed within the territory of another are not subject to the local laws of the other country, but are subject only to their own country's laws and regulations for the govern- ment of the armed services .
    [Show full text]
  • A Remedy for Congressional Exclusion from Contemporary International Agreement Making
    A REMEDY FOR CONGRESSIONAL EXCLUSION FROM CONTEMPORARY INTERNATIONAL AGREEMENT MAKING Ryan Harrington* I. INTRODUCTION.............................................. 1211 II. CONGRESSIONAL INVOLVEMENT IN INTERNATIONAL AGREEMENT MAKING ................................. ..... ...... 1215 A. Ex Post Congressional-ExecutiveAgreements-Approval Requirement of Both Houses of Congress ........ ........ 1217 B. Sole Executive Agreements-Creation Without Congressional Involvement ......................................... 1219 C. Ex Ante Congressional-ExecutiveAgreements-Prior CongressionalAuthorization for Executive Action..... ..... 1221 D. PoliticalCommitments-Agreements With No Congressional Involvement ........................... ............... 1224 III. THE DOMESTIC LEGAL CONSEQUENCES OF POLITICAL COMMITMENTS............................................... 1227 A. SALT II and PoliticalCommitments' Conflicts with the Treaty Clause ........................... .............. 1227 B. PoliticalCommitments and the InterchangeabilityDebate......... 1231 C. The Problem ofExcluding Congress ..........................1234 IV. APPLYING THE CASE ACT TO POLITICAL COMMITMENTS ..... ..... 1236 A. History of the Case Act Permits Requiring Reporting of Political Commitments. ...................... ....... 1238 B. The Case Act Does Not Require Modification, the Code of FederalRegulations Does ........................... 1242 V. CONCLUSION ................................................ 1244 I. INTRODUCTION When Harold Koh, as Legal Advisor to the U.S. Department
    [Show full text]
  • International Agreements*
    LAW LIBRARY JOURNAL Vol. 108:3 [2016-17] Understanding the “Other” International Agreements* Ryan Harrington** The United States regularly concludes agreements with foreign states that are not ratified pursuant to the Treaty Clause, which leaves many researchers with a cloudy understanding of the agreements and their legal status. This article explains varia- tions in international agreement forms and provides advice on locating the agreement texts and the instruments that give the President’s agreements legal effect. Introduction .......................................................344 An Overview of “Other” International Agreements ........................347 Ex Post Congressional-Executive Agreements Become Law After Approval by Both Houses of Congress ............................347 Sole Executive Agreements Are Valid Pursuant to the Executive’s Constitutional Authority. .347 Ex Ante Congressional-Executive Agreements Authorize the President to Conclude an Agreement Without Any Further Congressional Action .......................................................348 Political Commitments Are Nonlegally Binding Agreements Concluded Without Congressional Involvement ..............................349 Standards and Requirements for the Creation of “Other International Agreements” ....................................................350 Circular 175 ......................................................351 Limited Reporting Requirements of the Case Act .......................352 Finding “Other” International Agreements ..............................353
    [Show full text]
  • A Sole Executive Agreement Is A
    A Sole Executive Agreement Is A Unpleased or mixolydian, Doyle never diabolizing any succursal! Rights Sansone redetermined some andaerenchymas streakier Jeremiahafter unacquainted superhumanize Purcell some find-fault stiller? sneakily. How cubistic is Mikael when progressive But if it does not turn agreed to invade it values might glean, are sure that may have helped to. Uncertainties and sole executive and all of law of control over foreign aid at target emissions in favor of is a sole executive agreement, in constitutions and litigation in legal authority and interconnected world. Once a stepchild in the family knew which treaties were the preferred offspring, the executive agreement has surpassed in number and check in international influence the treaty formally signed, submitted for ratification to the Senate, and proclaimed upon ratification. It is required before launching an international obligations assumed that? The executive is a treaty, executing legislation at cia, comparative analysis of international agreements appear inside them in governments, they confer limited. The sole executive agreements reported under a sole executive agreement is not explicitly establish. The empty shrine is filled by the President, who appoints a swing Justice. This is currently require senate as to those in years and broad constitutional, on iran nuclear test is also serves a treaty formally signed by allies. It has nonetheless, nothing in france thanks to bring together on sole executive. First and sole executive agreement, some measure from a sole executive agreement is frequently use an increasingly beholden to clean development and ralph earl. The following three administrations steadily expanded the NSC, whose professional staff doubled in size with each presidency.
    [Show full text]
  • President Obama's Power to Enter a Legally Binding Agreement Without
    Factsheet Yes, He Can: President Obama’s Power to Enter a Legally Binding Agreement Without Waiting for Congress For over two decades, civil society has worked for a “fair, ambitious, and legally binding” international climate agreement. One of the concerns for the outcome of COP21 is the perception that the United States is unable to enter into a legally binding agreement because it would require ratification by two-thirds of the U.S. Senate, and such ratification would not be achieved in today’s political climate. In fact, Senate ratification is not necessary for the Obama administration to commit the U.S. to a legally binding form, including an agreement that encompasses binding INDCs or that requires financial contributions for mitigation, adaptation and loss and damage. In fact, due to the extraordinarily high bar for Senate ratification in the U.S., about ninety percent of international treaties executed by the U.S. in the last sixty years have taken the form of executive agreements. The Obama administration has more than ample authority to negotiate and execute an international agreement that is fair, ambitious, and legally binding and should not allow a minority of Senators to continue blocking action that is desperately needed. I. There Are Two Options for Making International Agreements Under U.S. Domestic Law a) The Constitution authorizes the President to “make Treaties” with the “Advice and Consent” of the Senate, provided that “two thirds of the Senators present concur.” (U.S. Constitution, Art. II, § 2). b) The President can enter into an executive agreement (which can include a treaty as that term is used in international law).
    [Show full text]
  • Paving the Way for US Climate Leadership
    April 2008 RFF DP 08-09 Paving the Way for U.S. Climate Leadership The Case for Executive Agreements and Climate Protection Authority Nigel Purvis 1616 P St. NW Washington, DC 20036 202-328-5000 www.rff.org DISCUSSION PAPER Paving the Way for U.S. Climate Leadership: The Case for Executive Agreements and Climate Protection Authority Nigel Purvis Abstract The United States should classify new international agreements to protect the Earth’s climate system as executive agreements rather than as treaties. Unlike treaties, which require the advice and consent of two-thirds of the Senate, executive agreements are entered into either solely by the President based on previously delegated constitutional, treaty, or statutory authorities, or by the President and Congress together pursuant to a new statute. The President and Congress should handle the most significant climate change agreements as congressional–executive agreements, which require approval by a simple majority of both houses of Congress. Handling climate agreements as congressional–executive agreements would speed the development of a genuinely bipartisan U.S. climate change foreign policy, improve coordination between the executive and legislative branches, strengthen the hand of U.S. climate negotiators to bring home good agreements, increase the prospects for U.S. participation in those agreements, protect U.S. competitiveness, and spur international climate action. More specifically, Congress should enact “Climate Protection Authority,” which would define U.S. negotiating objectives in a statute and require the President to submit concluded congressional–executive agreements to Congress for final approval. This approach should apply both to the new global climate change agreement being negotiated in the United Nations by the United States and the rest of the international community and to other future arrangements with a smaller number of major emitting nations.
    [Show full text]
  • International Law and Agreements: Their Effect Upon U.S. Law
    International Law and Agreements: Their Effect upon U.S. Law Stephen P. Mulligan Legislative Attorney Updated September 19, 2018 Congressional Research Service 7-5700 www.crs.gov RL32528 International Law and Agreements: Their Effect upon U.S. Law Summary International law is derived from two primary sources—international agreements and customary practice. Under the U.S. legal system, international agreements can be entered into by means of a treaty or an executive agreement. The Constitution allocates primary responsibility for entering into such agreements to the executive branch, but Congress also plays an essential role. First, in order for a treaty (but not an executive agreement) to become binding upon the United States, the Senate must provide its advice and consent to treaty ratification by a two-thirds majority. Secondly, Congress may authorize congressional-executive agreements. Thirdly, many treaties and executive agreements are not self-executing, meaning that implementing legislation is required to render the agreement’s provisions judicially enforceable in the United States. The status of an international agreement within the United States depends on a variety of factors. Self-executing treaties have a status equal to federal statute, superior to U.S. state law, and inferior to the Constitution. Depending upon the nature of executive agreements, they may or may not have a status equal to federal statute. In any case, self-executing executive agreements have a status that is superior to U.S. state law and inferior to the Constitution. Courts generally have understood treaties and executive agreements that are not self-executing generally to have limited status domestically; rather, the legislation or regulations implementing these agreements are controlling.
    [Show full text]
  • The Case for Replacing Article II Treaties with Ex Post Congressional-Executive Agreements
    The Case for Replacing Article II Treaties With Ex Post Congressional-Executive Agreements By Oona A. Hathaway November 2008 All expressions of opinion are those of the author or authors. The American Constitution Society (ACS) takes no position on specific legal or policy initiatives. The Case for Replacing Article II Treaties With Ex Post Congressional- Executive Agreements Oona A. Hathaway* I. Introduction In the fall of 2007, Senate hearings finally commenced on the United Nations Convention on the Law of the Sea, a treaty that has been languishing in the Senate since 1994, when Bill Clinton was still a fresh face in the White House. Submitted to the Senate under the Treaty Clause of the Constitution,1 the treaty must gain the consent of two-thirds of the Senate in order to become law for the United States—a hurdle it has been unable to clear for over a decade because of a small but determined opposition. Meanwhile, free trade agreements between the United States and Peru, Colombia, and Panama are also up for approval. But these agreements are proceeding not through the Treaty Clause but as “congressional-executive agreements,” subject to approval by a majority of both houses of Congress. Signed in 2006, one has already been approved by Congress. As these examples show, the process for making binding international agreements in the United States today proceeds along two separate but parallel tracks: one that excludes the House of Representatives and another that includes it, one that requires a supermajority vote in the Senate and another that does not, one that is expressly laid out in the Constitution and one that is not.2 Of the two methods for making international law in the United States, the Treaty Clause—which requires a two-thirds vote in the Senate and bypasses the House of Representatives—is the better known; it is principally used to conclude agreements on human rights, taxation, environment, arms control, and extradition.
    [Show full text]
  • Validity of Congressional-Executive Agreements That Substan Tially
    Validity of Congressional-Executive Agreements that Substan­ tially Modify the United States’ Obligations Under An Exist­ ing Treaty It lies within Congress’s power to authorize the President to modify substantially the United States’ domestic and international legal obligations under a prior treaty, including an arms control treaty, by making an executive agreement with our treaty partners, without Senate advice and consent. November 25, 1996 M e m o r a n d u m O p in io n f o r t h e S p e c ia l A s s is t a n t t o t h e P r e s id e n t a n d L e g a l A d v is e r t o t h e N a t io n a l S e c u r it y C o u n c il Y ou have sought our views on the question whether Congress can authorize the President to enter into an international agreement that substantially modifies the obligations which the United States would otherwise have under a pre-existing treaty, or whether only the Senate can do so, pursuant to the treaty-making power, U.S. Const, art. II, §2, cl. 2.1 We conclude that it lies within the power of Con­ gress to authorize the President substantially to modify the United States’ obliga­ tions under a prior treaty, including an arms control treaty. A “ treaty” in the constitutional sense2 has two aspects: it may state a judicially enforceable rule of domestic law; and it creates binding obligations between or among the parties in international law.
    [Show full text]