Senate and Foreign Policy
SENATE AND FOREIGN POLICY
The text of the Constitution creates a special role for the United States senate in two key aspects of foreign policymaking, the approval of treaties and appointments. Article II, section 2, clause 2, provides that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors and other public ministers and consuls." In addition to these explicitly conferred powers, the Senate, by practice and tradition, participates in joint resolutions dealing with foreign policy; it takes part informally in other foreign policy activities as well.
Although the Senate in early years exercised an "advice" role in connection with treaty-making, that function has atrophied. The Senate can, and occasionally does, express its opinion concerning the desirability of concluding a certain treaty or concerning what outcome negotiations should produce. But it is the President who determines whether to commence negotiations and what topics those negotiations comprise. The President's responsibility for the conduct of international negotiations is plenary, and he may decline to transmit to the Senate a treaty he has signed.
Strictly speaking, the Senate does not "ratify" a treaty: the President does so after the Senate gives its advice and consent by a two-thirds majority of Senators present. This may seem like a steep requirement, but the Senate from the outset has rejected only about a dozen treaties. More frequently it approves a treaty subject to conditions that the President opposes, in which case he may decline to proceed with ratification. These conditions have been called "amendments," "reservations," "understandings," "statements," "declarations," and a variety of other terms, but the terminology is secondary to their substance. All are conditions to the Senate's approval, and if the Senate does condition its consent, the President, in bringing the treaty into effect, is required to honor the Senate's intent and modify the treaty accordingly.
The role of the Senate ends after the treaty takes effect. The President is responsible for its implementation and interpretation. A treaty is a law, and under the Constitution the President is charged with its faithful execution. During a well-publicized dispute between the Senate and the administration of ronald reagan over the proper construction of the ABM Treaty, executive officials accused the Senate of meddling in the process of interpretation, while certain Senators charged that putative United States action based on the President's interpretation would have departed from the meaning of the treaty to the point of breaching the constitutional requirement that the law be faithfully executed.
The text of the Constitution makes no reference to the making of other international agreements on behalf of the United States, but Presidents have long concluded executive agreements. These agreements have been concluded by Presidents with and without statutory authority. Either route obviates the requirement of two-thirds approval of the Senate—which explains both their popularity with Presidents and their unpopularity with some senators. The courts have provided no conclusive guidance as to when the treaty instrument is constitutionally required.
It has been argued that Senate participation also is required in ending a treaty. In goldwater v. carter (1979), however, the Supreme Court declined to decide a challenge to the validity of the termination of the mutual security treaty with the Republic of China on Taiwan by President jimmy carter. In light of the President's determinative role in initiating treaty relations and given past Senate acquiescence to presidential termination of several treaties in accordance with their terms, it is hard to see how a claim of Senate authority over treaty termination can be sustained. Treaty abrogation, however, is another matter. A president who ends a treaty in violation of its terms seemingly violates the presidential duty of faithful execution. Whether the Senate and President, acting together, can approve treaty abrogation and thereby end the treaty's status as the law of the land is an open question.
These constitutional matters are almost entirely a function of what the Senate Foreign Relations Committee has called "customary constitutional law"—practice acquiesced in by both political branches over many decades that has taken on the weight of a constitutional norm. Custom assumes particular significance in foreign affairs because so few judicial opinions mark the constitutional terrain. No court, for example, has upheld the power of the Senate to condition its consent to a treaty, but the practice has been unchallenged since the earliest days of the Republic and is now widely accepted as constitutionally permissible.
By contrast the Senate has not conditioned its consent to appointments, and it would be clearly impermissible today for the Senate to approve the appointment of a certain ambassador on the condition, say, that he resign and be reconfirmed after two years. Custom surrounding the appointments clause is different from that pertinent to the treaty clause.
In sheer numbers, the Senate's appointments work load is far heavier than its treaty work load. During the 96th Congress, for example, 2,728 nominations were referred to the Committee on Foreign Relations. By contrast, in a typical year no more than a dozen or so treaties are transmitted to the Senate for approval.
Many of these nominations are ambassadors, consuls, or other public ministers whose confirmation by the Senate is required by the Constitution. Others, however, are Foreign Service officers, whose appointment and promotion must be confirmed by the Senate under the Foreign Service Act of 1980. Other statutes require Senate confirmation of various United States representatives to international organizations and of executive-branch officials dealing with foreign affairs. These officials include the secretary of state and twenty-five other officials of the Department of State, as well as top appointees in the Arms Control and Disarmament Agency, the Peace Corps, and the United States Information Agency.
One notable exception to the requirement of Senate confirmation is the President's assistant for national security affairs, who heads the National Security Council. This exception has caused Senate critics concerned about "two secretaries of state" to argue for the enactment of a statute requiring Senate confirmation for this office. Executive officials have responded that such a requirement would impinge upon the President's constitutional foreign relations powers.
In fact, a variety of foreign affairs appointments have been made without Senate advice and consent. Delegates to international conferences and representatives in international negotiations often do not receive Senate approval. Presidents have on occasion given such persons the "personal rank" of ambassador or minister. But as the Foreign Relations Committee's onetime chairman Senator J. William Fulbright has pointed out, such designations are not appointments in the Article II sense and thus cannot confer additional legal powers or compensation upon the recipient.
On occasion, members of the Senate have themselves served as representatives to international negotiations. Some have not been appointed with the Senate's advice and consent; others have. The practice is in any event long-standing. In 1813, for example, Senator James A. Bayard of Delaware served as envoy extraordinary and minister plenipotentiary in negotiating and signing a commerce treaty with Russia. Bayard's appointment was accorded Senate advice and consent. Without Senate confirmation Senators Arthur Vandenberg and thomas t. connally served as members of the United States delegation to the San Francisco conference that drafted the united nations charter. The United Nations Participation Act, enacted after the conference, expressly provides for the participation of members of Congress in the United States delegation to the United Nations. They are subject to Senate confirmation, but Vandenberg himself expressed reservations about the constitutionality of the arrangement. "I am increasingly impressed," he said, "with the difficulties confronted by "congressional' representatives because of their dual nature … it will always be true that a man cannot serve two masters. Yet that is precisely what I attempt to do … when I, as a Senator, sit in the United Nations as a delegate."
The mingling of executive and senatorial functions also occurs at less formal levels. During visits to the United States, foreign dignitaries often are invited for "tea" with the Foreign Relations Committee. The meetings are not open to the public, and although some time is consumed by social chitchat, it would be naive to think that substantive policy matters are not also reviewed. Ambassadors from foreign countries also meet on occasion with members of the Foreign Relations Committee and Senate leaders on legislative matters, as occurred in the 1970s during the normalization of relations with the People's Republic of China. And indirect contacts often occur during the consideration of treaties because the approval of conditions by the other signatory is required under international law and because Senate sponsors may not wish to render the treaty unacceptable by adding conditions that are unpalatable.
There is thus no airtight division between the foreign policy roles of the Senate and the executive. The Constitution, as reflected in custom deriving from two centuries of conflict and cooperation between Presidents and senators, reflects political accommodations reached by many different individuals representing many different philosophies over many different eras. It is not reducible to tidy "black-letter" formulas by which functions might be assigned neatly to one branch or the other. Yet it is perhaps the Constitution's very rejection of mechanical construction techniques that has given it the "play at the joints" necessary to adapt and survive.
Michael J. Glennon
American Journal of International Law October 1989 Volume 83, Number 4.
Glennon, Michael J. 1990 Constitutional Diplomacy. Princeton, N.J.: Princeton University Press.
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