International agreements and the political safeguards of federalism.

• Author: Sloss, David
• Position: Symposium on Treaties, Enforcement, and U.S. Sovereignty

INTRODUCTION I. STATE LAW AND SOLE EXECUTIVE AGREEMENTS A. The Federalist View B. The Nationalist View C. Pragmatic Considerations D. Proposed Middle Ground II. STATE LAW AND THE TREATY POWER A. The Context of the Debate B. A Critique of Professor Bradley's Proposal 1. Transferring foreign affairs power to the states 2. Transferring foreign affairs power to the Supreme Court 3. Political safeguards III. STATE LAW AND CONGRESSIONAL-EXECUTIVE AGREEMENTS A. Agreements Within the Scope of the President's Independent Authority and Within the Scope of Congress's Enumerated Powers B. Agreements Within the Scope of the President's Independent Authority but Outside the Scope of Congress's Enumerated Powers C. Agreements Within the Scope of Congress's Enumerated Powers but Outside the Scope of the President's Independent Authority D. Agreements Outside the Scope of the President's Independent Authority and Outside the Scope of Congress's Enumerated Powers CONCLUSION APPENDIX: GLOBAL, MULTILATERAL TREATIES TRANSMITTED TO THE SENATE BETWEEN JANUARY 1993 AND DECEMBER 2000 INTRODUCTION

In a classic article written almost fifty years ago, Professor Herbert Wechsler claimed that "the national political process in the United States ... is intrinsically well adapted to retarding or restraining new intrusions by the center on the domain of the states." (1) In light of the political safeguards of federalism, he argued, the Supreme Court "is on weakest ground when it opposes its interpretation of the Constitution to that of Congress in the interest of the states...." (2) In short, given the safeguards for states' interests that are inherent in the political process, there is little need for the Supreme Court to fashion judicially created constitutional rules to protect the states against unwanted intrusions by the federal government.

Although the Supreme Court once adopted Wechsler's view, (3) the Rehnquist Court has firmly rejected Wechsler's thesis with respect to ordinary legislation. (4) The Rehnquist Court has not yet considered, though, how Wechsler's thesis and its own federalism doctrines apply to international agreements. This Article considers the application of the Rehnquist Court's federalism jurisprudence to international agreements. In doing so, the Article assumes the validity of that jurisprudence, without attempting to defend or critique it.

The United States employs three different types of mechanisms for entering into international agreements: treaties, congressional-executive agreements, and sole executive agreements. A "treaty" is an international agreement approved by a two-thirds vote in the Senate. A "congressional-executive agreement" is an international agreement approved by majority vote in both Houses of Congress. A "sole executive agreement" is an agreement concluded by the President on the basis of his Article II powers, without explicit authorization or approval by any legislative body. (5) This Article's central thesis is that the need for judicially created constitutional rules to protect the states is inversely related to the degree of political safeguards inherent in the different mechanisms for entering into international agreements.

Part I contends that there is a strong case for judicially enforced federalism limitations on sole executive agreements because the process for concluding sole executive agreements provides very weak political safeguards for the states. Part II contends that there is little need for judicially enforced federalism limitations on the treaty power because the two-thirds majority requirement and the disproportionate power of small states in the Senate provide substantial political safeguards for the states. Part III contends that congressional-executive agreements are an intermediate case. Compared to treaties, the need for judicial enforcement of federalism limitations is greater because the political safeguards are weaker. Compared to sole executive agreements, however, there is less need for judicially enforced federalism constraints because the political safeguards are stronger. (6)

1. STATE LAW AND SOLE EXECUTIVE AGREEMENTS

   Scholarly views about the relationship between state law and sole executive agreements tend to divide between nationalist and federalist positions. Professor Michael Ramsey, representing the federalist position, contends that "the President has independent authority to enter minor [sole executive] agreements in order to conduct routine affairs," (7) but such agreements can never supersede state law. In contrast, the Restatement (Third), representing the nationalist position, says that the Tenth Amendment does not limit the President's power to make sole executive agreements, (8) and that "[a] sole executive agreement made by the President on his own constitutional authority is the law of the land and supreme to State law." (9)

   Part I is divided into four sections. The first section suggests that the federalist position finds substantial support in the constitutional text and the original intent of the Framers. The second section demonstrates that Supreme Court precedent and Executive Branch practice tend to support the nationalist position. The third section contends that there are sound practical reasons for finding a middle ground between the federalist and nationalist positions. The final section invokes the principle of democratic legitimacy as a way to mediate between nationalist and federalist camps.

   Part I proposes the following two-part rule. First, the President does not have the constitutional authority to utilize a sole executive agreement to supersede valid state statutory or constitutional law. Second, the President does have the constitutional authority to utilize a sole executive agreement to supersede state common law. The federalist arguments summarized in the first section support the first part of the rule. The nationalist arguments summarized in the second section support the second part of the rule. The concept of democratic legitimacy provides a principled rationale for giving less weight to sole executive agreements than other types of international agreements, and for according greater weight to state statutory and constitutional law than state common law.

   1. The Federalist View

      Sole executive agreements involve "two distinct powers: (1) the power to create international obligations binding upon the United States as a matter of international law, and (2) the power to implement such international obligations as a matter of U.S. law, such that they supersede existing inconsistent U.S. law...." (10) Professor Ramsey claims that the President has a limited power to create binding international obligations by means of sole executive agreements, but the President cannot create binding domestic law by means of sole executive agreements. (11)

      Ramsey presents both textual and historical arguments in support of his view that sole executive agreements lack the force of law within the domestic legal system. In his view, the Framers recognized a distinction between treaties and nontreaty agreements. (12) The Framers intended the President to have a power to undertake minor or temporary commitments by means of nontreaty agreements. In contrast, the treaty power (13) was intended to be the exclusive means for the United States to enter into significant, long-term commitments. (14) Whereas the Framers intended for treaties to have domestic legal force, they did not intend for nontreaty agreements to have domestic legal effect in the absence of implementing legislation. (15)

      The constitutional text is generally consistent with Ramsey's view of original intent. The text of the Constitution distinguishes between a treaty and an "Agreement or Compact with ... a foreign Power." (16) Article II states explicitly that treaties require Senate approval, (17) and the Supremacy Clause provides that treaties are "the supreme Law of the Land." (18) In contrast, the Constitution does not require Senate approval for an "Agreement or Compact," nor does it grant such nontreaty agreements the status of supreme federal law. If nontreaty agreements had the same domestic legal force as treaties, then there would be no apparent reason to require Senate approval for treaties because the President could bypass the Senate at will and achieve the same results by using sole executive agreements. Therefore, textual analysis supports the inference that nontreaty agreements should not have the same domestic legal force as treaties.

      Nationalists may argue that the different approval processes for treaties and executive agreements relate to differences in the international scope of such agreements, not their domestic effects. Under this view, treaties require Senate approval because the treaty mechanism is used for agreements of major international significance; sole executive agreements do not require Senate approval because they "deal with minor, technical or routine matters of diplomacy." (19) There are two responses to this argument. First, as an empirical matter, the President has often utilized sole executive agreements to conclude international agreements of major political importance. (20) Second, as a textual matter, differences between the international scope of treaties and sole executive agreements may help explain why sole executive agreements do not require Senate approval, but those differences cannot explain why sole executive agreements are excluded from the text of the Supremacy Clause. Indeed, the fact that the Supremacy Clause refers to treaties, but not sole executive agreements, provides strong textual support for the federalist position.

   2. The Nationalist View

      In The Federalist, John Jay stated: "All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature...." (21) The Supreme Court cited this language approvingly in...