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.