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...
It was a privilege to read Oona Hathaway's Treaties' End. It's beautifully written, thought-provoking, and original - a hat-trick in academic writing. I join the other commentators in applauding this great contribution to the scholarship on international lawmaking in the United States. While I agree with much of Professor Hathaway's analysis, I came away unpersuaded by the...
Even if historical practice does not provide a legitimate basis for restricting the scope of the congressional-executive agreement power, federalism might. Under Missouri v. Holland, neither Article II treaties nor the statutes that implement them are subject to the enumerated power limitations that apply to Congress. While these limitations are relatively modest, especially with respect to activities involving...
Canada's Supreme Court ruled yesterday that it would hear a claim brought by Omar Khadr, a Canadian citizen who is currently being detained at Guantanamo Bay and who is scheduled for trial in a U.S. military commission. The court did not completely reject the Canadian government's non-justiciability arguments, which are that a Canadian court cannot sit in judgment of...
Yes, the venerable symbol that was born as the emblem of the British anti-nuclear movement but has matured into the universal sign of peace turns 50 today. It's a beautiful symbol, one that — alas — will likely outlive us all. But we should still continue to hope for a world in which its use will no longer be necessary. ...
I interrupt this exchange on Oona's marvelous essay to bring you the following public service announcement from John McCain, live from Sderot, in Israel:[Purim is] their version of Halloween here.Purim actually commemorates the deliverance of Persian Jews from Haman's plan to exterminate them. But close enough. ...
First off, let me thank Oona Hathaway and our guest bloggers for contributing to what is turning into a highly useful discussion of the relative merits of Article II treaties vs. congressional-executive agreements. Oona's work is ambitious and provocative, seeking to marshal comparative, historical, and normative arguments in favor of (largely) discontinuing the Article II treaty-making process. Some...
Cathy and Roger both pick up on the special role that human rights treaties play in the history of international lawmaking in the United States. In my article, I argue that the current bifurcated system of international lawmaking took its shape over the course of the twentieth century. The United States gradually abandoned the mercantilist, protectionist trade policy that it...
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...
I very much like Oona Hathaway's article. I think the most helpful part of your article is how you challenge the commonplace notion that there are obvious substantive differences between Article II treaties and Congressional-Executive Agreements (CEAs). Tables 1 and 2 grouping Article II treaties and CEAs by subject matter are priceless on that score. I have one...
In reading Chris Borgen’s incisive post on Oona Hathaway’s masterfully written article, I was reminded of the American Declaration of Independence. The 1776 Declaration boldly declared, “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another… a decent respect to the opinions of mankind requires...
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"...
