The limited attention to international agreements in the Constitution has created a void that has left students of American jurisprudence with little direction as to which situations require a Senate-ratified treaty and which situations can be dealt with by other agreements. In fact, treaties are only mentioned four times in the Constitution. (1) The only other reference to international agreements is in Article I, Section 10, which prohibits states from entering into "any Agreement or Compact with another State, or with a foreign Power."
The scant attention devoted to international agreements in the Constitution has led to debates over the constitutionality of nontreaty agreements. As a result, two schools of thought have emerged to provide guidance on the constitutionality of international agreements (Randall 1990). On one hand, "interpretivists" insist that we should avoid reading into the Constitution powers not expressed (see, e.g., Borchard 1944, 1945; Berger 1972; and Tribe 1995). As there is no authority granted to the president to conclude agreements outside of the Article II Treaty Clause, international agreements should be in the form of treaties--submitted to the Senate for ratification before becoming effective and binding. "Noninterpretivists," on the other hand, believe that American foreign relations will be hamstrung if the federal government cannot conclude international agreements outside of the parameters of the Article II Treaty Clause--and, thus, absent the time-consuming Senate ratification process (see, e.g., McDougal and Lans 1945a, 1945b; and Ackerman and Golove 1995). Noninterpretivists are also quick to point to Article I, Section 10, to argue that the Founding Fathers contemplated international compacts other than treaties.
One type of agreement that has generated a good deal of debate is the congressional-executive agreement. (2) Congressional-executive agreements are those international agreements concluded by the executive branch and authorized or approved by legislation enacted by both houses of Congress (see, e.g., Henkin 1996, 215-18). Within this conceptualization, there are two categories of congressional-executive agreements: ex ante and ex post. (3) The former are agreements into which the Congress, through legislation or treaty, authorizes the president to enter. The latter are agreements concluded by the president and then submitted after the fact to the Congress for approval and effectuation. As ex post congressional-executive agreements are the most controversial, the discussion that follows will focus largely on them. This article, therefore, deals with one particular aspect of the debate: are executive agreements concluded by the president and subsequently effectuated by a joint resolution of Congress ("ex post congressional-executive agreements" hereinafter) constitutional?
To address this question, I will focus on two legal actions brought recently in federal courts challenging the constitutionality of ex post congressional-executive agreements. The rulings, from two different circuits, produced a similar outcome--the agreements were not struck down--but for two different reasons. The Supreme Court denied certiorari in both cases, leaving the controversy somewhat unresolved.
The next section briefly reviews the cases of Made in the USA Foundation v. United States and Ntakirutimana v. Reno. This is followed by an independent analysis of the historical practices and legal precedents that shed insight on the constitutionality of congressional-executive agreements. I conclude that constitutional-executive agreements are legally permissible.
Recent Case Law
In the past few years, federal appellate courts have had occasion to assess the constitutionality of ex post congressional-executive relations. (4) In this section, the Eleventh Circuit's ruling in Made in the USA Foundation v. United States and the Fifth Circuit's ruling in Ntakirutimana v. Reno are examined.
Made in the USA Foundation v. United States
In 1992, the leaders of Canada, Mexico, and the United States signed the North American Free Trade Agreement (NAFTA), which established a "free trade zone" in North America. President Clinton never submitted this agreement as a treaty to the Senate for ratification. On December 8, 1993, Congress passed the NAFTA Implementation Act, Public Law 103-182 (1993), which effectuated the terms of NAFTA. This act passed in the House of Representatives by a vote of 234 to 200 and the Senate by a vote of 61 to 38.
A group of labor organizations brought suit in federal court seeking to have NAFTA declared unconstitutional "as it was never approved by a two-thirds supermajority of the United States Senate pursuant to the constitutionally-mandated procedures governing treaty ratification." (5) The District Court ruled that the Constitution did not prohibit an agreement like NAFTA. On appeal, the Eleventh Circuit of Appeals vacated the lower court's ruling on grounds that the case presented a nonjusticiable political question.
In the past, the Supreme Court has held that some issues should not be resolved on their merits because of separation of powers concerns that dictate noninvolvement on the part of the judiciary. The test for invocation of the "political question doctrine" is laid out in Baker v. Carr:
Prominent on the surface of any case held to involve a political question is found (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question. (6) In 1979, the Supreme Court was asked to address whether the president could, on his own, terminate American adherence to a treaty. The Supreme Court, in Goldwater v. Carter, held that the matter involved a political question, thus warranting nonintervention by the judiciary. The dispositive opinion, written by then--Associate Justice William Rehnquist, was only a plurality opinion. However, in a concurring opinion, Justice Lewis Powell condensed the Baker six-prong test into three simpler questions:
Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of government?
Would resolution of the question demand that a court move beyond areas of judicial expertise?
Do prudential considerations counsel against judicial intervention? (7)
The Eleventh Circuit, in Made in the USA Foundation v. United States, found Justice Powell's three-part test to be useful in assessing whether federal courts should address the merits of the claims raised in the NAFTA case. In answering the first question, the court concluded that the matter was committed to the political branches. Because the subject matter of NAFTA was within the domain of power granted to Congress in the Commerce Clause and to the president in his foreign affairs power, the court opined that
with respect to commercial agreements, ... the Constitution's clear assignment of authority to the political branches of the Government over our nation's foreign affairs and commerce counsels against the intrusive role for this court in overseeing the actions of the President and Congress in this matter. (8) The court, addressing the second question, felt that judicial intervention would involve the courts in an area outside of its expertise:
In the area of foreign relations, prudential considerations militate even more strongly in favor of judicial noninterference. Furthermore, we believe that in requesting, as the appellants do, that this court adjudicate the "significance" of an international commercial agreement as the critical determinant of whether or not it constitutes a treaty requiring Senate ratification, we would be unavoidably thrust into making policy judgments of the sort unsuited for the judicial branch. (9) Finally, the court, in applying Justice Powell's third test, held that several prudential factors cautioned against judicial involvement, "including (1) the necessity of federal uniformity; (2) the potential effect of an adverse judicial decision on the nation's economy and foreign relations; and (3) the respect courts should pay to coordinate branches of the federal government." (10)
Given that not just one but all three prongs of the Powell test counseled judicial abstinence, the Eleventh Circuit ruled that it would be inappropriate to reach the merits of the appellants' legal claims. The Supreme Court denied certiorari. (11) Accordingly, the lower court dismissed the case--in effect allowing NAFTA to stand.
Ntakirutimana v. Reno
In the Fifth Circuit, the court of appeals was also recently asked to address the constitutionality of congressional-executive agreements. This case stemmed from an agreement with the International Criminal Tribunal for Rwanda (ICTR) entered into by President Clinton. Among other things, the agreement called for the surrender of alleged war criminals, indicted or convicted by the ICTR, found to be located in the United States. The agreement was effectuated subsequently by the National Defense Authorization Act, Public Law 104-106, [section] 1342 (1996). (12)
In 1996, the ICTR issued two indictments of Elizaphan Ntakirutimana for his alleged engagement in war crimes and acts of genocide during the Rwanda genocide of 1994. Ntakirutimana, who was residing in the United States, was arrested by federal agents and subjected to an extradition proceeding. In his first appearance before...