The Constitution’s Treaty Clause has long been seen, rightly, as a bulwark against presidential inclinations to lock the United States into unwise foreign commitments. The clause will likely be tested by Barack Obama’s administration, as the new president and Secretary of State-designate Hillary Clinton, led by the legal academics in whose circles they have long traveled, contemplate binding down American power and interests in a dense web of treaties and international bureaucracies.
Like past presidents, Mr. Obama will likely be tempted to avoid the requirement that treaties must be approved by two-thirds of the Senate. The usual methods around this constitutional constraint are executive agreements or a majority vote in the House and Senate to pass a treaty as a simple law (known as a Congressional-executive agreement).
Executive agreements have an acknowledged but limited place in our foreign affairs. Congressional-executive agreements are far more troubling. They have evoked scathing attacks by constitutional experts and have been strongly resisted in the Senate, at least so far.
The framers of the Constitution designed the treaty process with a bias against “entangling alliances,” as Thomas Jefferson described them in his first inaugural address. They designated the Senate as the body responsible to protect the interests of the states from being bargained away by the president in deals with foreign nations. The framers required a supermajority to ensure that treaties would reflect a broad consensus and careful, mature decision-making.
America needs to maintain its sovereignty and autonomy, not to subordinate its policies, foreign or domestic, to international control. On a broad variety of issues — many of which sound more like domestic rather than foreign policy — the re-emergence of the benignly labeled “global governance” movement is well under way in the Obama transition.
Candidate Obama promised to “re-engage” and “work constructively within” the United Nations Framework Convention on Climate Change. Will the new president pass a new Kyoto climate accord through Congress by sidestepping the constitutional requirement to persuade two-thirds of the Senate?
Draconian restrictions on energy use would follow. A majority of the Congress would be much easier for Mr. Obama to get than a supermajority of the Senate. A scholar at the Brookings Institution has already proposed that a new president overcome objections to this environmentalists’ holy grail by evading the Treaty Clause.
President George W. Bush resisted many efforts at global governance. But his administration still sometimes fell into the temptation to flout the constitutional requirement of a two-thirds majority in the Senate.
In 2002, the administration considered submitting the Treaty of Moscow, a nuclear arms reduction agreement, for majority approval of Congress. Vice President-elect Joe Biden, who was then the chairman of the Senate Foreign Relations Committee, privately made clear that he would vigorously oppose such an attempt to evade the Senate’s constitutional prerogatives. The administration agreed to submit the agreement as a treaty, and the Moscow agreement cleared the Senate.
We hope the new vice president will not reverse his commitment to the Senate’s constitutional authority. But an administration determined to tie one hand behind America’s back might use Congressional-executive agreements to push the nation all too easily into quixotic and impractical global governance regimes.
President Bill Clinton signed Kyoto, but the Senate in effect rejected it. He also signed the Rome Treaty of 1998 that established an International Criminal Court, which would subject American soldiers and officials to unaccountable international prosecutors and judges for alleged war crimes (including, potentially, the undefined crime of “aggression”). Mr. Clinton did not even send this agreement to the Senate. Mr. Bush “unsigned” it. Mr. Obama might re-sign it and seek approval by only a majority of both houses of Congress.
Other international regimes might restrict America’s freedom of action to defend itself. In 1999, the Senate rejected the Comprehensive Test Ban Treaty, which would have undermined America’s ability to verify the reliability and effectiveness of its nuclear deterrent. Mr. Obama has said he supports ratification. The historical precedents are that major arms control agreements must receive the approval of two-thirds of the Senate.
President Bush, like President Clinton, did not sign a global agreement that would ban antipersonnel land mines, on the grounds that they are a key component of the American defense of South Korea. But his administration has pressed for ratification of the treaty on the law of the sea, which would subject disputes over the free passage of American naval vessels to the jurisdiction of an international maritime court — which the Senate has so far refused to ratify.
If Mr. Obama were to submit either of these agreements for approval by a simple majority of the House and Senate, his actions would pose a serious challenge to American principles of law and democratic governance. Global governance schemes delegate power to independent international organizations to make and enforce laws that would apply domestically, by international bureaucrats who are unaccountable to Congress, the president, American public opinion or the democratic process.
It is true that some multinational economic agreements, like Bretton Woods, the General Agreement on Tariffs and Trade and the North American Free Trade Agreement, went into effect after approval by majorities of Congress rather than two-thirds of the Senate. But international agreements that go beyond the rules of international trade and finance — that involve significant national-security commitments, or that purport to delegate lawmaking and enforcement functions to international organizations, or that could fundamentally alter the American constitutional system of individual rights — should receive the intense scrutiny of the treaty process, regardless of their policy merits.
By insisting on the proper constitutional process for treaty-making, Republicans can join Mr. Obama in advancing a bipartisan foreign policy. They can also help strike the proper balance between the legislative and executive branches that so many have called for in recent years.
The latest issue of the Journal of International Arbitration (Vol. 25, no. 6, December 2008) is out. Contents include:
