Oona Hathaway, Constitutional Actor

by Peter Spiro

I’d like to join Roger in focusing on how the trend away from article II treaties is perfected.

Oona’s “informal reform strategy” suggests that the move to CEA’s (with only a few exceptional areas carved out for continuing article II treatment) can be implemented through presidential submission choices. The strategy is “both legally unproblematic and politically feasible. It is, as a mechanical matter, breathtakingly simple. It would require no changes to existing law or regulations.”

But the current subject-matter divide is arguably of constitutional proportions. That is, the practice may reflect existing constitutional norms. As such, they will be much less readily dislodged than the piece seems to imply.

The arms control context best highlights the possible obstacles here. There has in fact been “overt resistance” to the trend away from article II. The Senate has attached declarations to all major arms control agreements since 1972 expressing its “intent to approve international agreements [relating to arms control] only pursuant to the Treaty Power as set forth in Article II.” President Clinton reversed a decision to submit the 1997 CFE Flank Agreement as a congressional-executive agreement after facing pushback from the Senate. You can bet that anti-internationalists would make an issue out of instrument form if a human rights agremeent or the LOST were submitted as a CEA.

In other words, it’s not clear that the Senate will go quietly into the Hathaway night. It has the weight of longstanding practices behind it, and that will make the reform strategy a longer slog than one might think.

Which is not at all to question Oona’s other arguments here. There may be a constitutional practice relating to choice of form, but that doesn’t mean that it makes any sense. To the extent it doesn’t, there will opportunities to chip further away at treaties’ domain, in a chain of constitutional increments. (A recent bill introduced by Senator Clinton is instructive in this regard: it would permit the conclusion of the Iraq security agreement to take the form of a CEA.)

As part of that process, academic work can make a difference, here especially in the absence of judicial pronouncements. This article will become part of the mix that affects constitutional outcomes. Which way it affects outcomes might not be as clear as at first glance, though. On the one hand, the empirical analysis points to the triumph of CEAs as something of a foregone conclusion (especially to the extent that it succeeds in rebutting the “separate spheres” take on the practice). On the other hand, it may make the guardians of senatorial prerogative all the more vigilant in protecting their institutional powers.

http://opiniojuris.org/2008/03/20/oona-hathaway-constitutional-actor/

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