Laws as treaties? The constitutionality of congressional-executive agreements.

• Author: Yoo, John C.

INTRODUCTION

Only twice in the last century, in 1919 with the Treaty of Versailles, and two years ago with the comprehensive Nuclear Test-Ban Treaty,(1) has the Senate rejected a significant treaty sought by the President. In both cases, the international agreement received support from a majority of the Senators, but failed to reach the two-thirds supermajority required by Article II, Section 2, of the Constitution.(2) The failure of the Versailles Treaty resulted in a shattering defeat for President Wilson's vision of a new world order, based on collective security and led by the United States. Rejection of the Test-Ban Treaty amounted to a major setback for the Clinton administration's arms control policies and its efforts to promote American participation in international efforts at regulatory cooperation. In both cases, presidents raised the concern that a minority of the Senate could frustrate an internationalist American foreign policy and thereby turn the nation toward isolationism.

According to most international law scholars and authorities, however, both presidents easily could have evaded the Treaty Clause by submitting their international agreements as statutes. Instead of navigating Article II's advice-and-consent process, presidents have sent many international agreements to both houses of Congress for simple majority approval. Known as congressional-executive agreements, these instruments are indistinguishable under international law from treaties in their ability to bind the United States to international obligations. Several recent agreements of significance, such as the North American Free Trade Agreement ("NAFTA")(3) and the World Trade Organization ("WTO") agreement,(4) have undergone this statutory process. Not surprisingly, presidents have favored this easier route to making international agreements. While in the first fifty years of American history, the nation concluded twice as many treaties as nontreaty agreements, since World War II the nation has concluded more than ninety percent of its international agreements through a nontreaty mechanism.(5)

Despite the fact that the constitutional text includes a specific Treaty Clause but no other means to enter into international agreements, a broad intellectual consensus exists that congressional-executive agreements may serve as full substitutes for treaties. As Professor Louis Henkin, the dean of American foreign relations law scholars, writes, "it is now widely accepted that the Congressional-Executive agreement is available for wide use, even general use, and is a complete alternative to a treaty."(6) Declares the Restatement (Third) of United States Foreign Relations Law: "The prevailing view is that the Congressional-Executive agreement can be used as an alternative to the treaty method in every instance."(7) Under this theory of "interchangeability," congressional-executive agreements and treaties are indistinguishable from one another, with the result that the former may enjoy all of the benefits that accrue to the latter, despite the easier method for enacting statutes. Rather than a supermajoritarian barrier to international agreement-making, the Treaty Clause becomes merely an alternative method for making contracts with other nations. According to this logic, President Bush could now resubmit the Test-Ban Treaty to Congress for approval by majority vote, and President Wilson could have brought the United States into the League of Nations through a statute, even after the defeat of both agreements in the Senate. Few constitutional provisions seem so easily evaded.

This striking divergence between the constitutional text and practice is not just a matter of intellectual curiosity. International agreements today are assuming center stage in efforts to regulate areas such as national security, the environment, trade and finance, and human rights.(8) In order to establish effective global solutions, treaties have come to resemble domestic legislation in directly mandating norms of public and private conduct.(9) As international agreements increasingly assume the function of statutes, the treaty power -- an executive power that excludes the House of Representatives -- threatens to supplant the domestic lawmaking process, even in areas within Congress's Article I, Section 8 competencies.(10) At the same time, interchangeability raises the prospect that statutes could fully replace treaties, which raises the mirror-image problem that Congress could come to exercise executive powers in areas where treaties have force beyond domestic statutes. While this may not have presented much of a practical problem in an era when the Commerce Clause's reach was thought to be virtually limitless, the Supreme Court's recent federalism decisions -- which, for example, have limited Congress's authority to expand civil rights protections(11) -- make clear that significant areas still exist where treaties provide the sole constitutional source for national regulatory power. Interchangeability would permit statutes to evade the restrictions on Congress's Article I, Section 8 powers, just as globalization threatens to allow the executive treaty power to invade the domestic lawmaking process.

Explaining the constitutionality of the congressional-executive agreement is a matter not just of intellectual coherence, but of practical economic and political importance. Today, about one-quarter of the gross national product arises from international trade, whose rules are set by the NAFTA and WTO agreements.(12) If all international agreements must undergo the supermajority treaty process, it is likely that America's ability to participate in a new world of international cooperation will be hampered. On the other hand, use of a constitutionally illegitimate method would throw America's participation in the world trading system into doubt. Not only would constitutional questions undermine the validity of current congressional-executive agreements, they also would raise problems for America's ability to engage in ever more intensive efforts at international cooperation. Uncertainty about the constitutionality of the congressional-executive agreement may inhibit the ability of the public lawmaking system to embrace novel efforts to craft international solutions in response to the effects of globalization on areas such as international finance and economics, security, the environment, and human rights.

Resolving the looming conflict between globalization and the American public lawmaking process requires us to consider carefully the scope of treaties, the reach of statutes, and how to reconcile the two. Within the context of the debate over the constitutionality of the congressional-executive agreement, this Article will develop a theory that allows us to understand the difference between treaties and statutes and the subject matter appropriate for each -- a difference that permits us to maintain important distinctions between international lawmaking and domestic lawmaking in an age of rapid globalization. This distinction provides the foundation for determining when congressional-executive agreements are a constitutional mode of international agreement. Unfortunately, our leading constitutional scholars have failed to understand that the debate over the congressional-executive agreement actually embodies deeper structural questions concerning the proper relationship between the treatymaking and the domestic lawmaking processes.

Instead of seeking to harmonize the respective scopes of treaties and statutes, many in the academy have embraced extreme positions that eviscerate either the treaty or the congressional-executive agreement. Traditional international law scholars, for example, too willingly embrace complete interchangeability while brushing aside severe textual and structural problems with eliding statutes and treaties. Professors Bruce Ackerman and David Golove also defend full interchangeability, but only on the basis of their provocative and idiosyncratic theory of unwritten constitutional amendments.(13) Professor Laurence Tribe, on the other hand, argues that congressional-executive agreements like NAFTA and the WTO violate the Constitution.(14) Because the Constitution only addresses international agreements in the Treaty Clause, Tribe concludes that all significant international agreements must undergo a supermajority vote in the Senate -- a theory of treaty exclusivity. Ackerman, Golove, and Tribe fail to see that the question of the congressional-executive agreement actually turns on the proper line between the executive treaty power and Congress's legislative power, and on the changes globalization has wrought upon the domestic lawmaking process.(15) Because of this, they fail to see that adopting either interchangeability or treaty exclusivity would lead to unacceptable distortions of the constitutional structure and would require the rejection of more than a half century of practice by the political branches.

This Article will provide a constitutional justification for the congressional-executive agreement, one consistent with the text, structure, and history of the Constitution. It will provide a clear dividing line that demarcates the situations in which treaties must be the sole instrument of national policy, and those that can be dealt with by the congressional-executive agreement. This Article is the first to base its theory of treaties upon the record of practice by the political branches, rather than making normative claims derived simply from different theories of constitutional interpretation.(16) Practice suggests that complete interchangeability ought to be rejected because it creates severe distortions in the American public lawmaking system. Allowing statutes completely to replace treaties eliminates the restrictions upon Congress's enumerated powers and undermines the separation of powers in foreign affairs. Nor is...