“Political” Commitments & the Constitution

[This post was jointly authored by Duncan Hollis and Joshua Newcomer] 

We would like to start by expressing our thanks to the editors of the Virginia Journal of International Law, the (other) hosts of Opinio Juris, and especially Professors Edward Swaine and Michael Ramsey for commenting on our article.

“Political” Commitments and the Constitution (available on SSRN here) explores the constitutional validity of the executive branch’s use of political commitments in international relations.  The recent controversy surrounding the formation of a U.S. security relationship with Iraq served as the impetus for our piece.  Although most of that controversy focused on the Bush Administration’s ability to conclude a status of force agreement (SOFA) with Iraq as a sole executive agreement, we became interested in the Bush Administration’s position on the related Strategic Framework Agreement (SFA).  Rather than suggest that the President could conclude the SFA as a sole executive agreement, the executive branch initially insisted that this instrument would merely be a “political”–or, non-legally binding–commitment in which the legislature could have no interest.  We wanted to explore this claim because, while the United States has long used political commitments as alternatives to treaty-making, the constitutional authority to do so has gone mostly unexamined among academics and government officials alike.  And, although international law and international relations scholars have studied political commitments, in both arenas, the conventional wisdom holds that because these commitments are not international “law”, they are irrelevant to domestic “law” as well.

Our article, in contrast, seeks to situate political commitments within the Constitution.  Specifically, we contend that the Constitution affords the President a discrete power to make political commitments, which is not plenary, but instead may be subject to legislative oversight or control.  Our argument comes in four parts.  First, we start by explaining why constitutional actors should care about political commitments.  Although some might dismiss political commitments as “mere scraps of paper”, we contend that these instruments can have significant credibility and wide-ranging consequences, if of a political (as opposed to legal) nature.  States have used political commitments to form some of the most important international instruments of the last century (e.g., the Helsinki Accords, the Atlantic Charter, and Shanghai Communique). At the same time, diplomats now rely on political commitments on nearly a daily basis to regulate almost every topic of international relations.  Thus, although treaties and political commitments are, by definition, distinct instruments, we conclude that their overlapping functions suggest that political commitments warrant scrutiny analogous to that for the already highly monitored treaty context.  Indeed, unlike earlier literature, we emphasize how broad and deep the political commitment practice has become.  We provide a typology to demonstrate the wide variety that now exists among political commitments in terms of their formality, their substance (i.e., their subject-matter, normativity, and precision), organizational consequences, and their autonomy from legal commitments.

Second, we show how existing theories of constitutional power are inadequate to support the executive’s power to make political commitments.  Political commitments do not fit neatly under the treaty-making power because that power focuses on the formation of mutual legal obligations (which by definition exclude intentionally non-legal “political” commitments).  In fact, the political branches’ own regulations and long-standing practice explicitly aim to distinguish treaties from political commitments.  Similarly, we find theories of unenumerated and reserved foreign affairs powers do little to explain or support a general presidential power to make political commitments.  Indeed, to say the president’s foreign affairs powers authorize political commitments would merely replicate exiting confusions over the proper scope of such authorities.  Existing models of constitutional power, therefore, are descriptively inaccurate and normatively unhelpful when it comes to political commitments.

Third, to determine whether the Constitution permits the exercise of a political commitment power, we look to constitutional text, original meaning, custom, structure, and prudence.  Not surprisingly, the text and original meaning offer no explicit support for making political commitments; the practice did not even emerge until the nineteenth century and it took scholars another century to identify it.  Both the text and the original history do, however, identify constitutional concern with U.S. agreement-making, thus leaving the door open for constitutional regulation of the practice once it arose.  More importantly, over time, the customary interactions of the political branches do confirm the existence and–to a lesser extent–the scope of a political commitment power vested in the executive branch.  This allocation is further reinforced by structural arguments.  We reach this conclusion notwithstanding the likelihood that the Supreme Court could not (or would not) adjudicate the existence or content of a “political” power; our vision of constitutional interpretation allows for constitutional constructions by the political branches directly.  To that end, we offer a prudential analysis that suggests, whatever costs might arise by overt recognition of an executive political commitment power, they would be outweighed by the benefits of doing so.

Fourth, having identified a discrete, non-plenary political commitment power, we offer a method for assessing its application in various contexts.  Specifically, we draw on our typology of political commitments to show how variations in a political commitment’s form, substance, organization and autonomy can require Congress to demand information about–or a role in approving–such commitments.  This framework legitimizes the Executive’s broad use of political commitments, while providing guidance on when Congress must take on a more prominent role.  In the end, we suggest that recognition of the political commitment power will legitimize the vast majority of executive political commitments that have gone unsubstantiated to date as unseen cogs of our foreign relations apparatus.  But it also prescribes to Congress grounds for acquiring information about U.S. political commitments that have, to date, arisen without Congress’ knowledge, and thus free from legislative scrutiny.  More infrequently, we identify limited circumstances in which Congress must approve a political commitment; i.e., when the text exhibits the highest degrees of formality, substance, and organization, or where the autonomy from U.S. legal obligations is so low as to raise questions about end runs around the treaty-making power.  Perhaps most importantly, bringing the political commitment power within a constitutional space 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.

We recognize that on a topic so understudied as political commitments, our article may generate as many questions as it answers.  But, we hope it can serve as the starting point not only for academic discussion, but also additional governmental attention to this important, and growing, aspect of U.S. foreign relations.