When Is the President Required to Seek a Treaty?

While spending my holidays explaining to my mom that no one reads New York magazine, especially people in New York City, I had a moment to pen a piece with John Bolton (who was my pick to be Romney’s Secretary of State) on President Obama’s policies on nuclear weapons in today’s Wall Street Journal.

We argue that the President cannot engage in a reciprocal reduction in our nuclear arsenal — which we believe is already below the levels needed for U.S. security and foreign policy — with Russia without a treaty. But facing heavy opposition in the Senate (which must give approval by two-thirds to any treaty) the Obama administration is studying ways to avoid the Constitution. We argue that Obama’s non-treaty treaty would be unconstitutional. A President can use the military as Commander-in-Chief, but only Congress decides its size and shape.

But here is a puzzle for Ricochet readers that we could not get into in the piece: When is the President required to seek a treaty? I have argued in my scholarly work that the Treaty Clause is perhaps the Constitution’s most abused provision. Remember Ross Perot’s opposition to NAFTA and the WTO? Remember his giant sucking sound of jobs moving to Mexico? He had a constitutional point: those weren’t treaties — they were passed as Acts of Congress by simple majorities of both houses.

While the Framers intended that we enter very few agreements, and George Washington’s farewell address warned us against entangling alliances, the U.S. has made the vast majority of its international agreements — on an order of near 90 percent — by the use of what are called “sole executive agreements” (President alone) or “congressional-executive agreements” (passed as statutes)

Not every deal between the U.S. and another country must be a treaty. FDR selling the British 50 destroyers after the fall of France, I would argue, doesn’t require a treaty or even a statute. But some agreements are so important and so directly impact our sovereignty, I believe, that they require a treaty. What’s the dividing line? Here is my effort at an answer, for those who want to dive deeper, in the Cornell Law Review last year.

  1. John Yoo
    C

    That is a great, related question: can a treaty go beyond Congress’s Article I legislative powers.  I think we can all agree that treaties cannot go beyond the Constitution, though there are some who have suggested it from time to time.  But could a treaty go beyond the federal government’s ordinary legislative powers, as the Supreme Court seemed to suggest in Missouri v. Holland (in the case of migratory birds)?  The Law of the Sea Treaty may well raise that issue, as you suggest.

  2. Scarlet Pimpernel

    I assume you were writing quickly, but it’s worth noting that Jefferson used the term “entangling alliances.”  Washington warned against “permanent alliances.”

    We added Texas by a joint resolution. It’s not clear that there would have been enough votes in the Senate for a treaty of annexation, even if we had waited for Polk to become President.

    Madison won the major first fight over the scope of the treaty making power when he demanded that the House must authorize any money a Treaty requires the U.S. government to spend–or the treaty power would trump the tax power.

    Finally, there’s the problem of our executive power.  Is the treaty-making power inherently executive.? Our constitution seems to try to make the Senate an executive council for foreign policy–a position the Senate rejected when the Senators kicked President Washington out the first time he went over to the Senate to have them advise him regarding foreigh policy (a mission to negotiation with the Creeks).   With 100 Senators, as opposed to 26, using the Senate as a council would be a bad idea.

  3. James Of England

    Prof. Yoo, you mention the claim that congressional-executive agreements are Unconstitutional. Do you believe that this claim is accurate? Do you believe that Texas is a state (after being admitted via a congressional-executive agreement rather than by a treaty), or is it your position that Peter Robinson is an honorary foreigner?

  4. Joan of Ark La Tex
    Larry3435: 

    By the way (listen up, Law of the Sea fans), I think treaties are just as much subordinate to the Constitution as statutory law.  The government cannot accomplish anything that violates the Constitution by treaty, any more than it could by statute. 

    I imagine that there is some doctrine that defines this principle (Professor Yoo?)

    Nevertheless, realpolitik compels me to acknowledge that when the Supreme Court states that a law is not permissible under the commerce clause, yet is permissible as a tax – then the constitution is essentially limitless in its power.

    In other words – The Constitution is merely a collection of words on a piece of parchment – it takes people to give it legitimacy.

    <posted by Instugator, not  JoALT)

  5. Last Outpost on the Right

    Politics has taken over economics. This has further blurred the line between what is a “deal” and what is an agreement that binds us to take actions that we might otherwise not take. NAFTA was a trade agreement that has had real political consequences. Should it have been ratified by the Senate? START was always called a treaty, but as far as I could tell, we really couldn’t be bound by it, could we?

  6. Instugator
    Last Outpost on the Right:  START was always called a treaty, but as far as I could tell, we really couldn’t be bound by it, could we? · 1 hour ago

    Sure we could – a buddy of mine has been a Treaty Compliance Officer for the last 10 years or so – he is the guy who sets up the team to escort the Russians whenever they exercise their rights under the treaty.

    New START, once it enters in force, requires us to declare where each of our weapons and delivery vehicles are weekly.

  7. Larry3435
    John Yoo: That is a great, related question: can a treaty go beyond Congress’s Article I legislative powers.  I think we can all agree that treaties cannot go beyond the Constitution, though there are some who have suggested it from time to time.  But could a treaty go beyond the federal government’s ordinary legislative powers, as the Supreme Court seemed to suggest in Missouri v. Holland (in the case of migratory birds)?  The Law of the Sea Treaty may well raise that issue, as you suggest. · 16 hours ago

    I’m not sure I see the distinction there.  If a treaty goes beyond Constitutionally authorized federal legislative power, then it is beyond the Constitution itself, by definition.  (That is assuming, of course, that there are any limits on federal legislative power under the Roberts Court.)  Sure, a treaty that directly violates the First Amendment (say, a treaty prohibiting citizens of signatory countries from making statements offensive to Islam) is the more obvious case.  But I think that is only because it is so hard to find examples of Congressional action that would be deemed extra-Constitutional in the current environment.  Logically, they are the same.

  8. RushBabe49

    I’m totally not qualified to speak on the subject, but Mr. Bolton was also my choice for State in a Romney administration (I started a thread on my own blog, but it never really took off before it became a moot point).

    http://www.rushbabe49.com

  9. James Of England
    Larry3435

    John Yoo: 

    I’m not sure I see the distinction there.  If a treaty goes beyond Constitutionally authorized federal legislative power, then it is beyond the Constitution itself, by definition.  (That is assuming, of course, that there areany limits on federal legislative power under the Roberts Court.)  Sure, a treaty that directly violates the First Amendment (say, a treaty prohibiting citizens of signatory countries from making statements offensive to Islam) is the more obviouscase.  But I think that is only because it is so hard to find examples of Congressional action that would be deemed extra-Constitutional in the current environment.  Logically, they are the same. ·

    There’s no question that the Treaty Power doesn’t allow violation of enumerated rights, such as those found in the Amendments. The question is whether the Treaty Power constitutes an affirmative delegation of power to the federal government separate from the other article I powers, so that the Feds could, eg., create military alliances or agreements regarding migratory birds. I think it’s fairly clear that it is a separate provision of power, but also agree with those who feel that this creates an uncomfortable tension.

  10. Keith Preston

    It probably won’t show up in polling data for a while, but this guy’s stealth attack on the Constitution will eventually hit the public consciousness.  If the economy takes a dip too, it will exhaust his “goodwill” with the public.

    How much does this man hate this country?

  11. Skyler

    A treaty is required when an agreement with another nation goes beyond that within the executive’s power.

    Congress can make laws respecting foreign nations without making a treaty but such agreement is easily subverted by subsequent legislatures. A treaty makes the law more permanent.

  12. RushBabe49

    But when has Obama ever cared about “governing” within the limits of the Constitution?  He considers the Constitution a barrier to his agenda, and since he has determined that Congress will pretty much let him do whatever he wants, he rightly thinks that his power has few, if any, limits.  We’ll see how much damage he can do in a second term.

  13. Instugator

    One of the criticisms I had heard regarding the Commerce Clause is that it gives congress the power to regulate commerce “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

    I would submit that NAFTA and WTO fall within the “with foreign Nations” portion of the commerce clause.

    John Yoo:  — which we believe is already below the levels needed for U.S. security and foreign policy – 

    I absolutely concur here. A key takeaway from “The Need for a Strong USNuclear Deterrent in the 21st Century” -

    It should be clear that the often-repeated aspirational statement made by the nuclear disarmament and non-proliferation lobbies that the United States and United Kingdom could “lead by example” by reducing their nuclear arsenals and other nuclear powers will follow suit, is demonstrably false. In fact, during the past twenty years, (a period of dramatic nuclear reductions by the US and Russia and significant reductions by the UK and France), Indian and Pakistani nuclear arsenals have continued to grow, North Korea became a nuclear weapons state, Syria began a clandestine nuclear weapons program, and Iran is on the verge of beginning a nuclear weapons program.

  14. Larry3435

    I would say that a President needs a treaty under exactly the same circumstances that he would need a statute — (a) if he seeks executive power that is not already authorized by law or directly authorized to the Executive by the Constitution; or (b) if he seeks to make a legitimate Executive decision last beyond his own tenure by having it adopted by Congress (which means it can only be undone by the action of some later Congress). Of course, treaties are also supposed to have the added benefit of binding the other guy, but I don’t put a whole lot of faith in that.  

    By the way (listen up, Law of the Sea fans), I think treaties are just as much subordinate to the Constitution as statutory law.  The government cannot accomplish anything that violates the Constitution by treaty, any more than it could by statute.

  15. flownover
    Instugator

    Last Outpost on the Right:  START was always called a treaty, but as far as I could tell, we really couldn’t be bound by it, could we? · 1 hour ago

    Sure we could – a buddy of mine has been a Treaty Compliance Officer for the last 10 years or so – he is the guy who sets up the team to escort the Russians whenever they exercise their rights under the treaty.

    New START, once it enters in force, requires us to declare where each of our weapons and delivery vehicles are weekly. · 19 hours ago

    Well, that certainly confirms our position as # 1.

    #1 idiot laying down for the Russkies. What an incredible change of events .

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