The Law Treaty Negotiation: A Presidential Monopoly? LOUIS FISHER Library of Congress In “The Law” section of the March 2007 issue, I analyzed misconceptions by Justice George Sutherland in his decision in United States v. Curtiss-Wright (1936), where he described the president as “sole organ” in foreign affairs. This article examines his erroneous statements about the president’s authority to negotiate treaties. Sutherland stated that the president makes treaties with the advice and consent of the Senate “but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.” That statement was false when written, false when Sutherland served earlier as a U.S. senator from Utah, and false in contemporary times, especially in light of fast-track procedures that bring both chambers of Congress closer to the negotiation process for trade agreements. United States v. Curtiss-Wright (1936) involved a dispute over legislation passed by Congress two years earlier authorizing the president to impose an arms embargo in a region in South America. The issue was whether Congress had delegated too much of its legislative power to the president. In 1935, the Supreme Court had struck down two delegations of power to the president involving domestic policy.1 The question presented in Curtiss-Wright was a narrow one: could Congress delegate greater discretion to the president in foreign affairs? Writing for a 7-1 Court, Justice George Sutherland decided that it could. Justice James C. McReynolds dissented, stating his opinion that the district court reached the right conclusion by striking down the delegation as excessive. Justice Harlan Fiske Stone did not take part in the consideration or decision of the case. 1. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Schechter Corp. v. United States, 295 U.S. 495 (1935). Louis Fisher is a specialist in constitutional law with the Law Library of the Library of Congress. He has published numerous works on the presidency, national security, war powers, and other constitutional issues. The views expressed here are personal, not institutional. Presidential Studies Quarterly 38, no. 1 (March) 144 © 2007 Center for the Study of the Presidency Fisher / TREATY NEGOTIATION: A PRESIDENTIAL MONOPOLY? | 145 Judicial Misconceptions In upholding the delegation of legislative authority, Justice Sutherland spoke about “the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs.” He said the two classes of powers “are different, both in respect of their origins and their nature.”2 Congressional legislation, to be made effective in the international field, “must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.”3 In this passage, Sutherland not only sustains the delegation but recognizes a field of independent presidential power that cannot be restricted by Congress. The problems with his constitutional analysis and historical understanding are treated in an earlier article (Fisher 2007b). Many scholars have pointed out the deficiencies of Justice Sutherland’s “sole organ” doctrine, his recognition of “inherent” and “extra-constitutional” powers for the president, and his account of the flow of sovereignty and external affairs to the United States (Brownell 2000; Goebel 1938; Levitan 1946; Lofgren 1973; Patterson 1944; Quarles 1944; Ramsey 2000; Simones 1996; Van Tyne 1907). This article examines the errors of Justice Sutherland with regard to the president’s constitutional authority to negotiate treaties. Not only did Sutherland attempt to show that the federal power over external affairs was distinctly different in origin and character from that over internal affairs, “but participation in the exercise of the power is signifi- cantly limited.” In the field of external affairs, he said, the Constitution required the president to share with the Senate the treaty-making power, “but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.”4 In making this assertion, Sutherland ignored his own experiences and writings as a U.S. senator from Utah and demonstrated no grasp of how often presidents in the past had shared treaty negotiation with members of Congress, both senators and representatives. Constitutional Theory The Constitution provides little guidance on how treaties are to be negotiated. Article II, section 2, empowers the president, “by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” Article I, section 10, prohibits states from entering into any treaty, alliance, or confederation. That section also prohibits a state, without the consent of Congress, from entering into “any Agreement or Compact” with a foreign power. The supremacy clause in Article VI defines treaties, along with the Constitution and statutes, as “the supreme Law of the Land.” Otherwise, the Constitution is silent about many elements of the treaty-making power. It says nothing about the president’s authority to negotiate treaties, the process of 2. United States v. Curtiss-Wright Corp., 299 U.S. 304, 315 (1936). 3. Ibid., 320. 4. Ibid., 319. 146 | PRESIDENTIAL STUDIES QUARTERLY / March 2008 terminating a treaty, or the allocation of authority to interpret and reinterpret a treaty. Nothing is said about the role of the House of Representatives, which not only provides funds to implement most treaties but must be alert to treaties that may encroach upon its prerogatives over tariffs and foreign commerce. Alexander Hamilton, who promoted strong executive powers, did not see an exclusive presidential role in negotiating treaties. In Federalist no. 75, he said that the power of making treaties “will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them” (Wright 2002, 476). Some studies conclude that trade legislation enacted by Congress, beginning in 1974 with the fast-track procedure, “usurp[s] the constitutional authority of the Presi- dent to negotiate international treaties” (Wright 2004, 980). The authority cited for that position: “See U.S. Const. art. II, § 2, cl. 2.” (ibid., note 9). However, nothing in Article II of the Constitution says anything about treaty negotiation. Some presidents have treated treaty negotiation as an exclusive executive power; others have included law- makers (of both houses). The last section of this article examines the fast-track process. The constitutional scholar Edward S. Corwin called the process of drafting and negotiating a treaty a “presidential monopoly.” The phrase appeared in his 1952 anno- tated Constitution and remains in that work today, as continuously updated by the Congressional Research Service.5 In a much earlier work, published in 1917, Corwin developed a strong presidency model. The title page of The President’s Control of Foreign Relations carries this quotation from Thomas Jefferson: “The transaction of business with foreign nations is executive altogether” (Corwin 1917). On page 2, Corwin acknowledges that the powers of foreign relations “are shared by three branches of the national government: Congress, the President, and the Senate.” He carefully lays out the relevant powers specified in Articles I, II, and VI. He notes that many issues are not addressed by the constitutional text, including abrogation of treaties, recognition of new governments, and international agreements that fall short of treaties (ibid., 4). Yet by page 5, Corwin’s position is clear: “The gaps above alluded to in the constitutional delegation of powers to the national Government, affecting foreign rela- tions, have been filled in by the theory that the control of foreign relations is in its nature an executive function and one, therefore, which belongs to the President in the absence of specific constitutional provision to the contrary.” A key word here is nature. The Framers looked closely at the writings of John Locke, William Blackstone, and Montesquieu, who strongly sided with the view that foreign relations was in its nature executive, but proceeded to repudiate those theories and allocate important foreign relations powers to Congress (Fisher 2004a, 1-16). Jefferson’s remark about the transac- tion of business with foreign nations being “Executive altogether” was quite limited when read in context (ibid., 20-22). As noted by Louis Henkin, the Framers “turned their backs on Locke and Montesquieu, on British and European practice” (Henkin 1989, 409). 5. Congressional Research Service, Library of Congress, The Constitution of the United States: Analysis and Interpretation, S. Doc. no. 108-17, 108th Cong., 2d sess. (2004), 492. This document originated in 1952 as a Corwin product, including the language “Negotiation, a Presidential Monopoly,” which is retained in the 2004 edition. See also Corwin (1957, 211-12). Fisher / TREATY NEGOTIATION: A PRESIDENTIAL MONOPOLY? | 147 Corwin cautioned that, in realizing the disadvantages that Congress labors under in asserting its viewpoint in foreign relations, “we must not forget either the disadvantages of the President’s position.” The president must discharge his functions “ordinarily through the agencies provided by Congress,” depends on appropriations granted by Congress, and