The Founders, Democracy, and Missouri v. Holland

by Oona Hathaway

David and Curt both raise interesting points that I’d like to address.

First, David worries that I am too quick to dismiss the Founders’ concerns. I argue in my article that the Founders decided to place responsibility for concluding treaties in the hands of the President and the Senate alone for two central reasons. First, it was expected that the Senate would be directly involved in negotiating treaties and would serve as the President’s “council of advisors” in treaty-making. Second, it was seen as a way to keep the federal government from bargaining away regional interests.

There were, of course, other concerns voiced by various actors during this period, many of which I mention in the piece. (As David notes, there were “doubtless as many additional concerns as there were delegates to the Convention.”) But based on my reading of the Constitutional Convention, state conventions, contemporary historical events, and legal scholarship on the issue, these were the two “central” concerns–and hence the ones that are most important to address.

I agree with David that there were–and are–other concerns that should be considered in deciding whether to continue making agreements through the Article II Treaty Clause or instead through congressional-executive agreements. Much of my article is devoted to discussing these other concerns. I also recognize that my discussion does not exhaust all possible considerations and I welcome a new, robust debate about these issues. On the issue of credible commitments that David raises, I think that congressional-executive agreements lead to more credible commitments for reasons discussed at length in the article. Treaties have an aura of inviolability that is belied by reality. Presidents have unilaterally withdrawn from treaties, even over the strenuous objections of members of Congress (remember the ABM treaty?). And Congress can prevent a treaty’s enforcement by passing an inconsistent statute. A move to congressional-executive agreements thus makes our international commitments no more vulnerable to the four-year presidential election cycle–in fact, I think it can make them less so.

Finally, David asks what underlies the assumption that democratic legitimacy and bureaucratic efficiency are virtues in the context of international agreements. We may just have a difference of opinion on this point. I think that these virtues are especially important in the modern era, when international law and domestic law are increasingly intertwined and overlapping. International law today does not simply deal in matters of diplomatic relations and border disputes–issues one might argue should be insulated from the masses. Modern international law is about everything from education to tax policy to torture. In this era, the exclusion of the House from participation in international lawmaking is increasingly dissonant.

Let me turn now to Curt’s points about Missouri v. Holland–which also connect to issues of democratic legitimacy. Curt’s has written extensively and provocatively on the limits of international law and I’ve learned a lot from his scholarship. As he points out, we agree on some matters (that the holding in Missouri v. Holland does not apply to congressional-executive agreements) and disagree on others (that human rights agreements fall outside Congress’s Article I powers and hence must be concluded as Article II treaties). Much of our disagreement in this context has nothing to do with international law. It turns instead on the reach of Congress’s enumerated powers, which I think is more extensive than does Curt (who is joined in his more restrictive view by John Yoo, who argues this point extensively in his 2001 Michigan Law Review article and whose argument I disagree with in my article).

I also disagree with Curt’s suggestion that it is somehow anti-democratic to conclude that the Article II treaty power is not limited by the same federalism concerns as Congress’s enumerated powers under Article I. As I discuss in Part IV.A. of the article, the Article II Treaty Power and Congress’s enumerated powers are separate and independent powers of the federal government and subject to distinct limits; it is no more reasonable to think that the Treaty Power is limited to the enumerated powers than it is to think that, for example, Congress’s power to provide and maintain a navy is limited to its power to regulate commerce.

Even though the Treaty Power is not limited in the same way as the legislative power of Congress, it is far from unlimited. It is instead subject to limits of its own, consistent with its distinct purpose. Article II treaties, in the words of Thomas Jefferson, “must have the consent of a foreign nation.” They must, moreover, be genuine–that is the parties must have a mutual interest in the subject matter of the agreement. That mutual interest can be manifested in reciprocal or respective commitments by the parties. By contrast, a treaty concluded for the sole purpose of enabling a party to avoid its domestic lawmaking rules would not constitute a genuine agreement. The necessity of a foreign partner willing to enter an agreement of mutual interest serves as both a justification for and a limit on the Treaty Power.

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