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).

http://opiniojuris.org/2008/01/24/pushing-another-constitutional-envelope-bush-going-it-alone-on-iraq-security-agreement/

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