Yoo and Bolton Against Congressional-Executive Agreements (But See Yoo)

by Peter Spiro

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!


8 Responses

  1. I have to say, I’m shocked, shocked, I say, that John Yoo’s legal arguments are crafted solely to fit the particular political outcome he desires.

  2. Score one for both the Legal Realists and Critical Legal Theory, and perhaps a few old-fashioned but endearing Marxists as well. 

  3. Heh, no kidding.

    What shocks me is that the University of California is still willing to let such a disgraceful — and obvious — charlatan soil the reputation of Boalt Hall.

  4. The outrage is misplaced. The problem is not with Boalt Hall. Even were he to be removed from Boalt Hall, John Yoo would live out the rest of his life in comfort, residing in a think-tank funded by wealthy right-ringers or in a well-paid position at a California law firm. The men who have been killed or tortured thanks to his tortuous logic are not as fortunate. In a just world, a little, self-serving prick like Yoo would be, at the very least, unemployed. As it is, he will doubtless live to a ripe old age, confident that unthinking victims of terrorist attack will praise him for his acumen and sagacity.

  5. The op-ed really seems more consistent with Bolton’s views than with Yoo’s.  The enemy engaged in the piece (“Globalists”) is Bolton’s bete noire, and the distaste for any sort of international cooperation that might constrain U.S. unilateralism is vintage Bolton.  

  6. This is beyond satire.

  7. I agree with Jeremy that this reads more Bolton than Yoo.  But it could mark the beginning of a splendid out-of-power partnership.  All at risk, however, of burning his bridges with his few remaining allies in the academy — check out this post from Eric Posner over at Volokh.

  8. One of the odd things about the Bolton-Yoo op-ed is that it gives no indication of the long history of congressional-executive agreements.  Yoo himself provides this history in his 2005 book The Powers of War and Peace.  In that book Professor Yoo observes that use of CEAs goes back at least to the eighteenth century and that use of CEAs has accelerated in the post-World War II era.  I forget the exact stats but I believe Yoo writes that today approximately 90% of international agreeements are concluded by CEAs, only 10% by the formal Article II treaty process.

    Professor Yoo takes a much kindlier attitude towards CEAs in his book than in his op-ed.  Congressional-executive agreements are the subject of Chapter 8, “Laws as Treaties?  Statutes as International Agreements.”  Environmental agreements are discussed on pp. 289-90.  On the one hand, Professor Yoo notes that “The President and Senate have used the treaty process for most of the nation’s significant environmental agreements.”  In this respect, his op-ed does not represent a break with his past views.  On the other hand, Yoo acknowledges in his book that “international environmental treaties may represent the most legislation-like agreements in their setting of norms for domestic private conduct” (p. 289).  This suggests CEAs’ appropriateness for international environmental agreements.  After all, Yoo’s position is that whatever Congress can accomplish under Article I, sec. 8 by statute, it need not do by treaty.  In fact, in his book the only difficulty Yoo suggests may stand in the way of using CEAs to enact international environmental agreements is “recent restrictions on the Commerce Clause imposed by the Supreme Court” (p. 290).

    Can we expect a legal challenge if Congress decides to go the CEA route with respect to Kyoto or a successor international environmental agreement?  Who would have standing to challenge? I’d be grateful if someone could tell me.

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