Tuesday, January 6, 2009

Separation of Powers and Treaty Making

In the New York Times this past Sunday, John Bolton and John Yoo wrote an editorial entitled, "Restore the Senate's Treaty Power," which can be found here: http://www.nytimes.com/2009/01/05/opinion/05bolton.html?_r=1&th&emc=th

In this op ed piece, Mr. Bolton and Mr. Yoo argue that incoming President Obama should follow the constitutional procedures for submitting treaties to the Senate for its advice and consent and should not try to use other procedures, such as executive agreements or Congressional-Executive agreements that were used to approve trade agreements such as NAFTA and the WTO.  It is interesting that two former Bush Administration officials known for advocating a strong executive branch with much unilateral power would now argue for limits on the executive's power to enter into international agreements.  However, their stance appears consistent with their aversion to "entangling alliances" with foreign countries. 

Mr. Bolton and Mr. Yoo are right to raise concerns about a too powerful executive branch that ignores constitutional checks and balances.  On the other hand, presidents have committed the United States to certain international obligations by way of executive agreements for at least a century with the blessing of the U.S. Supreme Court, so it is likely that such agreements will continue to be used by future presidents.  The U.S. State Department has developed a set of guidelines for what kinds of treaties should be submitted to the Senate for its advice and consent based in part on Supreme Court case law.  And while constitutional concerns have been raised by scholars regarding the use of Congressional-Executive agreements, it may be argued that such agreements have more democratic legitimacy because they must be approved by a majority of both Houses of Congress, involving many more elected representatives.  Given that many international treaties will require implementing legislation to be made effective in the domestic legal system, it makes sense to obtain "buy in" from the House of Representatives early on.   What the United States needs is a President who will respect constitutional requirements, but also remain flexible, practical, and open to using international law to promote U.S. interests at home and abroad.



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We're having fun with this newfound concern with an overly powerful executive branch by Mssrs. Bolton and Yoo over at Opinio Juris: http://opiniojuris.org/2009/01/05/yoo-and-bolton-against-congressional-executive-agreements-but-see-yoo/#comments

Posted by: Patrick S. O'Donnell | Jan 7, 2009 12:37:23 PM

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