The new sovereignty and the old constitution: the chemical weapons convention and the Appointments Clause.

• Author: Yoo, John C.

A noted scholar on foreign affairs law has declared, "[n]o provision in any treaty has been held unconstitutional by the Supreme Court and few have been seriously challenged there.(1) The Constitution appears to subject treaties and executive agreements to the same limitations that apply to all other actions of the federal government.(2) Further, the first principles of constitutionalism seem to dictate that the federal government cannot evade the Constitution simply because it acts through the process of presidential ratification and senatorial consent, rather than through bicameralism and presentment.(3) Nonetheless, the Supreme Court's record on foreign relations is littered with cases in which the Court arguably stretched the law in order to find that an international agreement did not violate a structural provision of the Constitution.(4)

Last year's ratification of the Chemical Weapons Convention ("CWC")(5) presents this same tension between the requirements of the structural Constitution and the demands of the nation's international obligations. The Convention bans not only the current use and possession of chemical weapons, but also research, development, and production of such arms in the future. Because of the dual civilian and military uses of several potentially banned chemicals, verification procedures have become the critical issue for the success of the treaty. To enforce the prohibition on chemical weapons now and in the future, the Convention imposes the most intrusive verification procedures yet seen in a multilateral arms control agreement. In particular, the CWC establishes a new international organization that will enjoy the power to conduct snap inspections on almost any military or civilian site within a state party's territory.

Implementation of this treaty scheme will face difficult challenges due to the Constitution's checks on the power of the federal government and its guarantees for the individual rights of the citizenry. Others have identified the constitutional problem raised by the CWC's provisions for warrantless searches of American industrial and business sites.(6) This Essay will focus on a deeper structural issue: whether the Constitution--in particular, the Appointments Clause--permits individuals who are not officers of the national government to exercise authority under federal law that affects the rights of American citizens.(7)

Long overlooked, the Appointments Clause has received increased scrutiny of late. In several recent opinions, the Supreme Court has found that the Constitution requires that any individual who exercises substantial government authority and discretion must undergo appointment in accordance with the procedures of Article II, Section 2.(8) Although one might read the Appointments Clause, as the Court has noted, "as merely dealing with etiquette or protocol," it is clear that "the drafters had a less frivolous purpose in mind."(9) This purpose was twofold: first, to prevent any single branch from manipulating federal appointments; and second, to ensure that those making appointments would ultimately be accountable to the people of the United States.(10) As this Essay will demonstrate, the Court's current approach to the Appointments Clause comports both with the framers' original understanding of the Clause as a check on national power, and with the Constitution's structural goal of preserving democratic self-government and public accountability.

These understandings of the Appointments Clause--both modern and historical--pose a difficult obstacle to the CWC's verification procedures. If the President and the Senate authorize an international organization to conduct searches on American soil, they will have delegated public authority outside the governmental system established by the Constitution. Vesting such authority in officials who are not officers of the United States risks offending both the fundamental principle of popular sovereignty underlying our Constitution(11) and the Appointment Clause's basic goal of government accountability. The case of the CWC, however, also highlights certain ambiguities in the Court's approach to the Appointments Clause that may suggest ways to conform the treaty to the Constitution.

Following this introduction, this Essay will proceed in three parts. Part I will describe the CWC's verification procedures and its implementing legislation, which is presently before Congress. Part II will examine the Court's case law interpreting the Appointments Clause and the broader constitutional principles of democratic self-government that support it. Part III will discuss ways in which the Clause applies to the CWC, and will examine possible solutions to the CWC's constitutional problems.

I

The CWC seeks to achieve the ambitious goal of eliminating chemical weapons by establishing an intrusive verification mechanism unprecedented for a multilateral treaty. State parties undertake the primary obligation of renouncing the use, development, acquisition, or production of chemical weapons.(12) They also agree to destroy any chemical weapons and production facilities currently within their jurisdiction and control.(13)

Verification is of crucial importance to the success of the CWC because, unlike other arms control agreements, the CWC goes beyond numerical caps on weapon stockpiles or limitations on weapon use in warfare. Instead, the CWC seeks to impose a complete ban on the development, production, and stockpiling of an entire class of weapons. The ease with which chemical weapons can be manufactured and concealed presents a difficult challenge for any verification system. Lethal substances such as mustard gas, for example, can be manufactured in a vat with two common industrial chemicals.(14) Detection of prohibited facilities is also difficult because production sites can be "dual use;" in other words, civilian chemical plants can easily switch to the production of chemical weapons, and vice-versa.(15)

A cheating nation can conceal a chemical weapons facility in an extremely small space. A laboratory no more than 1600 square feet in size can manufacture one hundred tons of chemical weapons in one year.(16) Successfully verifying compliance with the CWC will require monitoring all sites that use and produce civilian chemicals, in addition to the usual military and defense contractor sites that are the subject of other arms control agreements.(17)

Additional challenges are created by the multilateral nature of the treaty. A multilateral agreement with many parties of disparate resources and interests will produce difficult enforcement and verification problems. Smaller nations will not have the ability to verify compliance of the treaty by other nations, and thus they will be forced to rely upon international verification organizations and methods.(18) Because the low cost of chemical weapons make them a "poor man's atomic bomb," the incentive for less advanced nations to cheat so as to achieve strategic parity with more developed countries is probably higher than in a bilateral arrangement between parties of equal strength.

In order to overcome these challenges, the Convention creates a verification mechanism that reaches not just manufacturers of chemical weapons, but also most producers and users of industrial chemicals. According to the congressional Office of Technology Assessment, potentially 10,000 sites in the United States qualify for CWC inspection.(19) Under the so-called challenge procedures of the Convention, potentially any facility or location in the nation--whether involved in the chemical industry or not--might be subject to search. According to the treaty, challenge inspections can reach "any facility or location in the territory or in any other place under the jurisdiction" of a state party.(20) Many if not most of these factories, industrial sites, and other locations will not be under the direct control of the United States government, but instead will be in the hands of private commercial enterprises and companies.(21)

The Convention provides for three basic types of verification for sites that produce or store chemical weapons or designated chemicals. First, state parties are required to provide annual, detailed reports on facilities that could produce chemical weapons.(22) Second, sites involved in the chemical industry are subject to on-site inspections.(23) Third, any state party can demand a "challenge" inspection of any location within the jurisdiction of another party.(24) The Convention also creates a new international organization, the Organization for the Prohibition of Chemical Weapons.(25) The Organization's Technical Secretariat will choose the targets for inspection and will conduct the searches.(26) This discussion will focus on the legal issues posed by the on-site and challenge searches, which allow members of the Technical Secretariat to enter and search sites on American soil.

On-site inspections monitor facilities that produce substances that either have been used as, or could help create, chemical weapons. Facilities are classified into four groups based upon the potential dangerousness of the chemical produced; the intrusiveness and regularity of inspections depend on which classification a facility receives, For example, a facility that manufactures a "Schedule 1" substance, which has been used as a chemical weapon in the past, is limited as to the production amount and use of the chemical and is subject to regular on-site searches and monitoring.(27) Schedule 2 and 3 facilities, which receive less intrusive monitoring, produce less lethal chemicals that still might be used to create chemical weapons. If a facility manufactures chemicals that fall within the broader, "Other" category, which includes many organic chemicals that have not been used as chemical weapons in the past, it is subject to random targeting and inspection by the Technical Secretariat. While...