Hathaway: Presidential Power over International Law: Restoring the Balance

Oona A. Hathaway (Yale Univ. - Law) has posted Presidential Power over International Law: Restoring the Balance (Yale Law Journal, forthcoming). Here's the abstract:

The vast majority of U.S. international agreements today are made by the President acting alone on behalf of the United States. Little noticed and rarely discussed, the agreements are negotiated and concluded in a process almost completely hidden from outside view. No single actor is responsible for this state of affairs. It is instead the result of a deep, long-term, and largely hidden transformation. Over the course of more than a century, Congress gradually yielded power to the President to make international agreements. Each individual delegation of authority relinquished only a small measure of power, while freeing members of Congress to focus on matters that were more likely to improve their reelection prospects. But the cumulative effect over time left Congress with little power over international lawmaking.

This imbalance of power over international lawmaking is inconsistent with basic principles of democratic governance. The President should be the leading actor in creating binding international legal commitments for the United States - but not the only actor. The current lawmaking process does not provide for genuine cooperation among the branches of government. Instead, a single branch of government is able to make law over an immense array of issues - including issues with significant domestic ramifications - by concluding binding international agreements. This imbalance of power not only violates democratic principles, but may even lead to less favorable and less effective international agreements.

To correct this imbalance, this Article proposes a comprehensive reform statute that would normalize U.S. international lawmaking by reorganizing it around two separate tracks. International agreements that are now made by the President alone would proceed on an administrative track and would be subject to what might be called an “Administrative Procedure Act for International Law.” This new process would offer greater openness, public participation, and transparency, but not overburden lawmaking. A legislative track would include two existing methods for concluding international agreements: Senate-approved Article II treaties and congressional-executive agreements expressly approved by both houses of Congress. In addition, it would include an expanded “fast track” process that would permit streamlined congressional approval of agreements. Together, these proposals promise to create a more balanced, more democratic, and more effective system for international lawmaking in the United States.