05 Jan Yoo and Bolton Against Congressional-Executive Agreements (But See Yoo)
John Bolton and John Yoo have this op-ed in today’s NY Times vaunting Article II treaties over congressional-executive agreements. While conceding the fact of CEAs in the international economic context, the duo argues that going the CEA route for such agreements as the ICC and a successor to the Kyoto protocol “would pose a serious challenge to American principles of law and democratic governance.”
The piece is significant in itself, drawing a possibly defensible sovereigntist perimeter up against an Administration that will surely be more friendly to internationalist initiatives (defensible insofar as it appeals to the Senate’s institutional prerogatives rather than to politics).
If the Obama Administration is looking for contrary authority, it will have no shortage of ammunition from other scholarly quarters. Those would include none other than John Yoo himself. In this 2000 article in the Michigan Law Review, Yoo had kinder words for CEAs, arguing that for international agreements implicating plenary congressional powers under article 1, section 8, the CEA should stand as the exclusive mechanism of legislative approval.
Reserving areas within Article I, Section 8’s ambit for approval by congressional-executive agreement, rather than by treaty, preserves textual and structural elements of the Constitution as well as promoting the original understanding. We can see this by considering the ramifications of the alternate approach, which would make treaties the exclusive method for making international agreements. First, treaties remain an executive power that excludes the branch most directly accountable to the people, the House of Representatives. Second, unlike statutes, treaties have no defined subject matter, which means that the treatymakers can enter into an international agreement on any matter, regardless of whether the Constitution grants control over it to another branch. Third, most internationalist legal scholars believe that treaties are generally self executing – if their terms are clear, treaties do not require implementing legislation by Congress, but instead are to be automatically enforced by the courts. Congressional-executive agreements, on the other hand, promote democracy by infusing foreign policymaking with House participation. Their use formally guarantees that the same lawmaking process will apply to laws that have the same effect in regulating domestic conduct.
I don’t think the framework supplies a workable divide between treaties and CEAs — it’s too difficult to figure out what’s in Congress’ plenary power, if anything (the President obviously has a hand in international economic matters, for instance). Historical practice is the better guide, practice which (as with any norm channel) is subject to evolutionary change. Human rights agreements might pose the leading edge of an expanded CEA practice (perhaps, to play out Yoo’s line, under Congress’ authority under the Offenses Clause). Particulars aside, with the change of parties in the White House, beware of adjusted constitutional theorizing!