Pushing Another Constitutional Envelope: Bush Going It Alone on Iraq Security Agreement?

by Peter Spiro

A flurry of attention to the question of what form an agreement with Iraq would take in the wake of hearings yesterday before the House International Relations Committee: an unusually thorough segment on NPR, WaPo story here. Apparently the Administration is intent on pursuing this as a sole executive agreement, on the precedent of Status of Forces Agreements adopted as such. There is already congressional push-back — see this bill sponsored by Hilary Clinton, which provides in operative part (in addition to requiring the transmission of a constitutional analysis by the President to Congress):

No funds may be authorized or appropriated to carry out any bilateral agreement between the United States and Iraq involving “commitments or risks affecting the nation as a whole”, including a status of forces agreement (SOFA), that is not a treaty approved by two-thirds of the Senate under Article II of the Constitution or authorized by legislation passed by both houses of Congress.

I suspect this is one area in which Congress will show some fortitude and not roll over. Note that the legislation would allow for the possibility of going the congressional-executive agreement route, which would make “new law” in the sense of not enjoying any clear basis in the practice (such agreements having been historically limited to the trade context).


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