President and the Treaty Power

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PRESIDENT AND THE TREATY POWER

Article II of the Constitution authorizes the President to "make" treaties with the advice and consent of the senate, provided two-thirds of the senators concur. An "Article II" treaty may be a bilateral or multilateral international agreement and is brought into force as an international obligation of the United States by the formal act of ratification or accession. This formal act (hereinafter called "ratification") is separate from the act of signing the treaty and is accomplished pursuant to an instrument executed by the President. Accordingly, the treaty power is a presidential power that requires Senate participation before its exercise.

The decision to open a treaty negotiation, like the process of negotiation itself, is an exclusive executive prerogative. The Senate or individual senators may influence the course of a negotiation, but the Senate has no constitutionally recognized role before the submission of a treaty for advice and consent to ratification. The original understanding of the treaty power envisioned Senate participation before the negotiation and conclusion of treaties. However, this understanding was quickly reinterpreted in an informal manner. In 1789, in connection with an upcoming negotiation, President george washington personally appeared before the Senate and asked its advice on a series of specific negotiating questions. The Senate postponed consideration of all but one such question to a second session. This procedure was unsatisfactory to both the President and the Senate and was abandoned. Even the practice initiated by Washington of seeking written advice on particular negotiating questions was abandoned by him before the end of his first administration. A congressional study reported that "[b]y 1816 the practice had become established that the Senate's formal participation in treaty-making was to approve, approve with conditions, or disapprove treaties after they had been negotiated by the President or his representative." An attempt in 1973 to affirm the "historic" role of the Senate in treaty making by constituting it as a council of advice for that purpose came to naught in the face of executive branch, constitutional objections. The Senate and individual senators may nevertheless informally influence the course of negotiations through expressions of views at hearings, participation as advisors to the U.S. delegation to a negotiation, and other informal methods.

If a negotiation produces an international agreement, the president must choose the most appropriate basis in domestic constitutional law for bringing the agreement into force. There are four distinct sources of authority for presidential conclusion of an international agreement on behalf of the United States. The President may submit the agreement as an Article II treaty to the Senate for its advice and consent to ratificaiton. Alternatively, the President may seek congressional authorization of an international agreement by joint resolution or act of Congress or may use existing legislation as a basis for ratification of the agreement. These agreements are called congressional-executive agreements. This alternative procedure has become accepted as constitutionallyequivalent to the Article II procedure. Any international agreement so authorized is binding on the United States as a matter of international law, and both congressional-executive agreements and "self-executing" Article II treaties super-cede earlier inconsistent federal statutes as a matter of domestic law. In general, a self executing treaty is one that is intended by the United States to take effect as domestic law upon ratification.

Third, an international agreement may be contemplated by an earlier Article II treaty and may derive its authority from the earlier treaty. Such an agreement has the same legal force internationally and domestically as an Article II treaty. Fourth, an international agreement may be concluded on the basis of the President's power in foreign affairs. An international agreement concluded pursuant to the President's foreign-affairs power has the same effect internationally as an Article II treaty, but the President does not normally use a presidential executive agreement if it would be inconsistent with domestic law (for an exception see dames & moore v. regan, 1981). Any international agreement, including an Article II treaty, supersedes inconsistent state law.

The President's choice as to whether to submit an international agreement to the Senate as an Article II treaty is guided by the State Department's Circular 175 Procedure. This State Department regulation reqnuires that due consideration be given to such factors as the formality, importance and duration of the agreement, the preference of Congress, the need for implementing legislation by Congress, the effect on state law, and past U.S. and international practice. Under Circular 175, officials of the executive branch may consult with the Senate Foreign Relations Committee as to the choice of constitutional procedure. Although the "Circular 175" factors are rather general and may sometimes suggest alternative inconsistent choices and although the choice of constitutional procedure is in part a political choice, historical factors are often decisive. Thus, international agreements dealing with boundaries, arms control, military alliances, extradition, and investment are normally submitted to the Senate as Article II treaties. In contrast, international agreements dealing with trade, finance, energy, fisheries, and aviation are normally concluded as congressional-executive agreements. Sometimes an agreement may be concluded as an Article II treaty that is non-self-executing and is therefore subject to the enactment of implementing legislation by Congress before its ratification. This procedure may be preferable if the treaty requires regular appropriation of funds.

If the President chooses to submit an international agreement to the Senate as an Article II treaty, the Senate may consent to its ratification subject to conditions that bind the President if the President chooses to ratify the treaty. These conditions may require the President to attach a reservation to United Sates adherence to the treaty or to amend the treaty by agreement with the other treaty party or parties. Senate-imposed conditions may also require the President to make a specified declaration to the other treaty party or parties in connection with ratification, or a Senate-imposed condition may state an understanding that the Senate seeks to impose on the President or the U.S. Courts—for example, an understanding regarding a particular interpretation or the treaty's domestic effect. The President normally included Senate-imposed conditions requiring agreement by, or communication to, the other treaty party or parties in an instrument exchanged with the treaty partner or deposited specifically in connection with ratification. However, the President has claimed the constitutional power to comply with Senate-imposed conditions outside the formal ratification proces. A Senate-imposed condition must relate to the subject matter of the treaty and may not infringe on other provisions of the Constitution, such as the bill of rights or the President's foreign-affairs power. In missouri v. holland (1920), the Supreme Court upheld the validity of a treaty-related act of Congress that, absent the treaty, arguably contravened the tenth amendment. This decision caused considerable concern that a treaty might supersede other constitutional provisions, including the Bill of Rights. However, in reid v. covert (1957), a plurality of justices opined that a treaty may not contravene individual liberty specifically protected by the Bill of Rights. Of course, the content of such a right may be altered by the existence of a treaty and the foreign location of the governmental activity.

Following the Senate's advice and consent, the President makes an independent decision as to whether to ratify the treaty, thereby bringing it into force as an international obligation of the United States subject to the conditions imposed by the Senate. Until 1950, ratified treaties were published in the Statutes at Large. Now they are published separately by the Department of State as part of the series entitled United States Treaties and Other International Agreements. The President has also exercised the power to accept or reject proposed reservations by other parties to a treaty without the participation of the Senate.

Once a treaty has been ratified, the President has the power to interpret it, unilaterally or in agreement with treaty partners, pursuant to the President's foreign-affairs power. However, the President normally does not commit the interpretation of treaties to third-party dispute resolution, such as arbitration or adjudication by the International Court of Justice, without Senate or congressional acquiescence or approval. Moreover, if the President changes an earlier, commonly held interpretation, Congress may use its legislative and appropriations powers to force the President to reconsider. The reinterpretation controversy involving the 1972 U.S.-U.S.S.R. Treaty on the Limitation of Anti-Ballistic Missile Systems (hereinafter called the "ABM Treaty") is a good example of this phenomenon. When the President sent the ABM Treaty to the Senate for its advice and consent to ratification, executive branch officials told the Senate that the treaty prohibited the development and testing of space-based ABM systems based on "other physical principles" than those existing in 1972, such as lasers. Thirteen years later the administration of ronald reagan "reinterpreted" the treaty to permit the development and testing of those space-based ABM systems. However, several senators, former officials who negotiated the treaty, and academic commentators vigorously disputed the administration's case. Congress used its legislative and appropriations powers to force the executive branch to limit development and testing of ABM systems to activities permitted under the original interpretation.

In addition to the controversy over the substantive question of how the ABM Treaty should be interpreted, the reinterpretation attempt of the ABM Treaty sparked a dispute over the constitutional limits on presidential interpretation power. In 1987, the Senate considered, but declined to adopt, Senate Resolution 167, a general resolution stating that the meaning of a treaty cannot be unilaterally changed by the President from "what the Senate understands the treaty to mean when it gives its advice and consent to ratification." After another round of debate of the constitutional issue, the Senate attached a similar condition in its consent to ratification of the 1987 U.S. U.S.S.R. Treaty on the Elimination of Intermediate-range and Shorter-range Missiles (hereinafter called the "INF Treaty") applicable only to that treaty. The President questioned the constitutionality of that condition, but only after he had ratified the INF Treaty.

After all the controversy, little is settled. Most commentators probably would agree that the President may not reinterpret fundamental treaty provisions in major respects, even with the agreement of a treaty partner, without seeking Senate or congressional approval. Such a change would probably be classified as a "major amendment" to the treaty and, as such, would require that consent. It would also seem that other reinterpretations could be made by the President with Senate or congressional acquiescence. If Congress disagrees with a presidential interpretation, it may reflect its nonacquiescence through its legislative or appropriations power. Finally, conditions formally adopted, like that to the INF Treaty, should bind the President if the President chooses to ratify the treaty.

Another area of recent controversy concerns the termination of treaties. President jimmy carter terminated an Article II defense treaty in accordance with its terms, despite a "sense of the Congress" expression that he should consult with Congress before any such change in policy. In goldwater v. carter (1979) the Supreme Court dismissed a complaint filed by some members of Congress to enjoin the presidential action. The plurality opinion invoked the political question doctrine. Since that time, the President has claimed the right to terminate Article II treaties in accordance with their terms. Congress has acquiesced. The President has also successfully asserted the right to declare a treaty partner to be in "material breach" of its terms so the United States may withdraw from the treaty. Finally, the President has successfully asserted the right to violate the terms of a treaty or other norms of international law in the course of conducting the nation's foreign relations, at least in the absence of congressional action prohibiting such a violation. Those rights are based on the President's foreign-affairs power.

Because the judiciary rarely adjudicates separation of powers issues on the merits in foreign-affairs cases, the best guide to constitutional law defining presidential power in this area is recent historical practice; it constitutes a common law reflecting the pattern of accommodations reached by the President, the Senate, and the Congress in allocating responsibilities under the treaty power.

Phillip R. Trimble
(1992)

(see also: Congress and Foreign Policy; Congressional War Powers; Presidential War Powers; Senate and Foreign Policy.)

Bibliography

Bestor, Arthur 1989 "Advice" from the Very Beginning, "Consent" When the End Is Achieved. American Journal of International Law 83:718–727.

Congressional Research Service 1984 Treaties and Other International Agreements: The Role of the United States Senate. S-Print 98–205, 98th Congress, Second Session.

Glennon, Michael J. 1990 Constitutional Diplomacy. Princeton, N.J.: Princeton University Press.

Henkin, Louis 1972 Foreign Affairs and the Constitution. Mineola, N.Y.: Foundation Press.

Koh, Harold Hongju 1990 The National Security Constitution. New Haven, Conn.: Yale University Press.

Symposium 1989 Arms Control Treaty Interpretation. University of Pennsylvania Law Review 137:1351–1557.