How to Evaluate International Lawmaking: Democratic Legitimacy v. Popular Sovereignty

I very much enjoyed reading Professor Hathaway’s very strong contribution to an already strong literature on the relationship between treaties and executive agreements in U.S. law. In my view, the particular strength of the article lies in its empirical analysis of U.S. treaty and executive agreement practice, an analysis that has rarely been done in prior work on the subject.

Indeed, it strikes me that Oona’s article offers new support for the proposal made in John Yoo’s 2001 Michigan Law Review article, which also proposed relying on CEAs for everything that falls within Congress’ Article I powers. Yoo’s justification was on somewhat different grounds, but both Yoo and Hathaway end up in roughly the same place. If there is anything that is outside of Congress’ Article I powers, then Article II treaties can be used to take care of those kinds of agreements. The only difference, as far as I can tell, is that Oona does not think there are likely to be many such Article II treaties. Both Yoo and Hathaway, though, would be content for the vast majority of international agreements to go through the CEA process, but neither is arguing for true “interchangeability” in the sense that CEAs are exactly co-extensive with Article II treaties.

Additionally, the Yoo and Hathaway articles both invoke democratic legitimacy to justify the use of CEAs over Article II treaties. This is a powerful and important rationale for evaluating international lawmaking which is too often ignored by prior scholarship in the foreign relations area.

So far so good. If John Yoo and Oona Hathaway can agree on a proposal, and even that democratic legitimacy is a crucial justification for their proposal, there is decent chance that a consensus is developing somewhere (and who am I to disagree?).

And yet, I am not quite fully on board. It strikes me that, even more than democratic legitimacy, international lawmaking in the United States must also comport with American notions of popular sovereignty. Popular sovereignty, in my view, explains why the formal requirements of the Constitution for public lawmaking (e.g. the presentment requirement) should be adhered too even if they are less efficient or even if they are less democratically legitimate (see, e.g., the Electoral College, the Senate, etc). The touchstone of legitimacy for U.S. public lawmaking, I suggest, is not simply that the most democratic method is used, but whether the method comports with the mechanisms embedded in the U.S. Constitution by acts of “popular sovereignty” (or to use Professor Ackerman’s terminology, higher lawmaking).

By this criterion, treaty-making is more legitimate than CEAs because it is a product of “popular sovereignty” that embedded lawmaking mechanisms into the U.S. government structure. Note that legitimacy is not the same as “the most democratic system.” Rather, the argument is that changing the structure too fundamentally, even for the best of reasons, undermines the basic foundation of the U.S. system of constitutional government.

I think Professors Ackerman and Golove recognized the importance of popular sovereignty in their search for a post-WWII act that would qualify as an act of “higher lawmaking” that would justify CEAs. I’m less sure they found such a qualifying act, but I agree with the necessity of finding one that would justify the dramatic shift away from existing practice that Professor Hathaway is proposing.