Political Commitments: A Response to Professor Ramsey

by Joshua Newcomer

As with the earlier comments by Ed Swaine, I greatly appreciate Michael Ramsey’s astute observations regarding how political commitments fit into the constitutional discourse. I’ve endeavored to provide my initial responses to each of his suggestions below, although surely Duncan and I will build from his comments as we develop our theories going forward.

We are pleased that Professor Ramsey agrees with our overarching proposition that the practice of making political commitments should be subject to analysis on a constitutional dimension. Our disagreements, therefore, primarily lie in constitutional methodology. How we define political commitments goes a long way toward resolving the differences between our analysis and Professor Ramsey’s. To the extent that Professor Ramsey suggests that we are re-packaging “non-binding personal pledges by the President” as political commitments, we emphasize that the nation, not the President, incurs the obligation. Political commitments came out of the late nineteenth and early twentieth century practice of entering into gentlemen’s agreement, but that was a much more personal phenomenon—binding its makers, not the state. As the practice developed, it became more of a vehicle for encompassing state commitments. The Newfoundland Fishery Agreement and Horseshoe Reef Agreement were hardly the stuff of personal promises, and political commitments now include the Helsinki Accords, the NATO-Russia Founding Act, and the London Guidelines. All of these implicate national credibility, not that of an individual President. Personal promises by the President and other heads of state, of course, remain, but we wanted to analyze the distinct concept of political commitments that purport to represent the agreement of a state or its agencies. With that clarification in mind, I hope to answer Professor Ramsey’s more substantive comments.

1. Political commitments as a constitutional work-around.
Professor Ramsey situates political commitments in relation to other executive acts by noting that they are one tool at the President’s disposal to avoid the rigidity of the treaty-making process. We do not disagree that political commitments offer a useful, flexible tool to avoid the Constitution’s rigidity in making treaties. But, the ability to substitute this tool in place of a treaty is all the more reason to place some constitutional checks on their use. In this way, Professor Ramsey’s critique partially answers Professor Swaine’s observation that we “need a theory of constitutional proximity (or an argument about the dynamic effects of leaving substitutes unregulated).” If unregulated, political commitments may sometimes facilitate end-runs around constitutional mechanisms, distorting democratic processes and the rule of law (for example, FDR completed the Atlantic Charter as a political commitment in part to avoid any need for Senate approval).

I hasten to add, however, that there are international factors at play beyond avoiding burdensome, domestic treaty-making processes. Unlike sole executive agreements and non-self-executing treaties, political commitments do not have legal status under international law. This suggests alternative reasons for making political commitments beyond merely domestic concerns. If the United States desires a treaty, but the other nation only wants a political commitment, the United States may opt to take what it can get—a situation that cannot so easily be characterized as executive avoidance of the treaty-making process. And, of course, both nations may desire a treaty, but settle on a political commitment as an initial step because of its expediency.

Regarding post-adoption inflexibility, we certainly agree with Professor Ramsey that political commitments do not have the same legal stakes, and thus inflexibility, as self-executing treaties. But, as our article emphasizes and as Professor Ramsey suggests, just because a political commitment lacks domestic legal consequences does not mean that it lacks consequences for the United States. For example, some political commitments remain national obligations for decades, such as the Lansing-Ishii agreement or the Helsinki Accords; others compel congressional action, such as the Interlaken Declaration on the Kimberely Process; and yet others indirectly effect domestic law, such as the 1907 Gentlemen’s Agreement with Japan (despite the label, undoubtedly a national commitment).

2. Political commitments and the Vesting Clause.
Professor Ramsey next comments that the Constitution’s text and original meaning easily grant the authority to enter into political commitments to the President. We have no quarrels with Professor Ramsey’s observation that, despite the lack of textual reference to political commitments, the Constitution still provides general principles that could encompass powers not directly contemplated by its text or the Framers. Where we diverge from his conclusion is in the use of the Vesting Clause to endow the president with plenary authority in this area. We will leave a broader discussion of Professor Ramsey’s constitutional methodology to others.

Nonetheless, as for political commitments, they do not fit easily into the Vesting Clause’s grant of authority. To start, the political commitment was unknown at the time of the Framing (unlike proclamations of neutrality or instructing ambassadors), and we do not believe that the vesting of foreign affairs powers with the executive necessarily included the plenary authority to form international obligations. To the extent that the Framers were concerned about the allocation of the United States’s international agreement-making power—and they clearly were—they divided it and always gave the Senate or Congress a role. (e.g., Article II treaty power / Article I, section 10 limitations on state agreement-making). In addition, Congress was granted many areas of substantive authority exclusive of presidential control. Political commitments always impact the former, agreement-making power, and often impact areas of Congress’s substantive supremacy, such as financial regulation (the FATF), immigration (the 1907 Gentlemen’s Agreement), and environmental regulation (the Rio Declaration). While the Vesting Clause might justify certain political commitments that arise within the executive’s substantive domain, we do not believe it is so broad as to contemplate the formation of all political commitments. As such, the Vesting Clause lacks full utility for our primary purpose of theorizing a general political commitment power.

Later-emerging mechanisms, such as sole executive agreements, of course lack textual support, but they rest on long-standing practice and the acquiescence of Congress. Political commitments too, have emerged as a consequence of custom, albeit one distinct from the formation of legal obligations. These developments nonetheless support our construction of a political commitment power. Nor, in so identifying the power, do we break new ground with a “grab-bag” approach to constitutional analysis; instead, we leverage well-established modalities of constitutional interpretation.

In that regard, Professor Ramsey has offered some helpful criticisms regarding our use of custom, structure, and prudence as methods of constitutional interpretation. Nevertheless, we would defend each method’s utility for our analysis. First, custom plays such a prominent role in large part because the now widespread practice of entering into political commitments is of relatively recent vintage and was unknown at Framing. In fact, the recent development of the political commitment practice, we believe, cautions against granting it as a plenary power to the executive branch. Second, our structural analysis suggests a dominating executive role in entering into political commitments by reference to the informational, speed, and secrecy advantages of the executive branch, tempered only by Congress’s preferable role as the arbiter of democratic policy matters. Third, our prudential analysis suggests the opposite: the benefits of imposing a congressional role and bringing current executive practice into the constitutional fold—thus fulfilling the Constitution’s commitment to rule of law and democratic accountability—outweighs the costs to the political commitment’s utility; it may, in some ways, even enhance its utility.

This is all to say that the recognition of a general political commitment power is not difficult to identify under these modalities even without reliance on the Vesting Clause. Perhaps our disagreement with Professor Ramsey stems from our different visions of political commitments. If they are viewed only as personal commitments, it is not difficult to conceive of them as subsumed in the Vesting Clause. But, recognizing them as vehicles for state agreement generally, the applicability of the Vesting Clause becomes considerably more problematical where these non-legal obligations take on a character that does not, and should not, devolve to the President alone. In the end, however, I greatly appreciate Professor Ramsey’s comments, and I know Duncan joins me in thanking our respondents for providing thorough and insightful comments on our work.

http://opiniojuris.org/2009/04/15/political-commitments-a-response-to-professor-ramsey/

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