“Political” Commitments and the Constitution

Along with my co-author, Joshua Newcomer, I’ve posted a new article on SSRN — “Political” Commitments and the Constitution.  It’s forthcoming in the Virginia Journal of International Law, so I expect readers will get a chance to comment on it here at Opinio Juris once it’s in print as part of our regular VJIL symposia.  But, we’d also welcome comments now, while we’re still early in the editing process.  Here’s the abstract:

This article explores how the Constitution regulates political commitments in light of recent controversies over the formation of a new U.S. security relationship with Iraq. The United States has long used political – or, non-legally binding – commitments as alternatives to its treaties, but the Executive’s authority to do so is un-theorized. And, although international law and international relations literature have studied political commitments extensively, conventional wisdom simply assumes that because they are not international law, they are irrelevant to domestic law as well.

This paper challenges such views. We contend that the Constitution regulates the President’s ability to form political commitments and provide a comprehensive constitutional analysis to support this position. We offer a functional explanation for why the Constitution should control political commitments, given how their international and domestic functions parallel those of U.S. treaties. In doing so, we offer the first typology of political commitments, differentiating them according to variables of form, substance, organization and autonomy. Assuming the federal government has a political commitment power, we explain why it does not fit neatly under either the treaty-making power or the foreign affairs power more generally. Instead, we look to constitutional text, original meaning, custom, structure, and prudence to construct a discrete Executive power to make political commitments, subject to legislative checks. Ultimately, we provide a framework for evaluating political commitments that can legitimize the Executive’s use of political commitments while guiding decisions on when Congress must require information about-or even approval of-them. We conclude by applying our framework to the Iraqi security agreements.

Significant implications flow from recognizing a political commitment power. Recognition legitimizes the vast majority of Executive political commitments that have gone unsubstantiated to date. It prescribes to Congress grounds for acquiring information about U.S. political commitments, and, more infrequently, approving them. Finally, a political commitment power reconciles existing practice with the Constitution’s basic rule of law principle, establishing that the Constitution governs all U.S. international agreements, not just some of them.