Democracy and Treaties
As David Golove and Marty Lederman note in their post, I argue in my article that one important advantage of congressional-executive agreements over Article II treaties is their stronger democratic legitimacy. I want to say a few more words on the grounds for this claim.
The Treaty Clause provides that agreements are made by the President with the “advice and consent” of two-thirds of the Senate. Congressional-executive agreements, by contrast are made by the President acting in concert with majorities of both houses of Congress. Unlike the process for making congressional-executive agreements, then, the Article II process excludes the House of Representatives. Critics of international law frequently contend that international law is undemocratic, often basing their complaints on this exclusionary process. The assumption behind the complaint is often that the U.S. process is also the international norm. As discussed earlier, the Treaty Clause process is, in fact, extremely unusual: only Tajikistan and the United States have a lower level of legislative involvement in treaty-making than in ordinary legislation and make the results of this process automatically part of domestic law in more than a few confined areas of international law. The fault, then, if there is one, is not that of international law but of the United States’ distinctive method of making that law.
The Founders designed the Treaty Clause as they did not because of a belief that a supermajority vote in the Senate (and exclusion of the House) would somehow be more democratic. The Clause was instead the product of an almost immediately frustrated expectation that the Senate would play a role as a confidential council of advisors to the President in treaty-making, as well as the very distinct historical context in which the Treaty Clause was formed (related to a desire among the southern states to protect their rights to free navigation of the Mississippi).
As I also discuss in the article, the same lawmaking process that sets too low a bar in the House sets an excessively high bar (in my view) in the Senate. The two-thirds rule imposed by Article II is among the highest imposed in the Constitution. There are substantial, and frequently unacknowledged, costs to this exceptionally high requirement. The supermajority requirement imposed by the Treaty Clause means that treaties that enjoy the support of a strong majority of the population and its political representatives may still not be approved.
This is all the more true because the Senate is extremely malapportioned–far more so today than it was even a century ago. Today, senators representing only about eight percent of the country’s population can halt a treaty. Hence achieving the support of a two-thirds majority can require playing to the polarized extremes of modern American politics: If we array the senators in the 109th Congress from most liberal to most conservative according to a widely used measure of ideological position, we see that the sixty-seventh senator was just over twice as conservative as the fifty-first senator. In the reverse dimension, the sixty-seventh senator was also just over twice as liberal as the fifty-first. In other words, the supermajority requirement means treaties must gain the support of (and hence can be vetoed by) senators that are twice as conservative or liberal as the so-called median voter in the Senate.
I acknowledge that there are cases in which a supermajority requirement of this form can be democracy-enhancing, because it requires a broader consensus to develop before action can be taken. Judith Resnik, for example, has persuasively argued that a supermajority is democracy-promoting in the context of the selection of Article III judges. Ratifying a treaty is fundamentally different, however, from approving judges. Most notably, if a particular nominated judge is not approved, another one who can command broader support will almost certainly be nominated in his or her stead. By contrast, if a treaty is rejected, there will be no international agreement (unless, of course, it is concluded by congressional-executive agreement, as I advocate).