06 Jul Obama’s Plan to (Temporarily) Use Executive Agreements for Arms Control
ABC reports that President Obama is considering the temporary use of executive agreements to create a news arms control treaty with Russia this winter.
MOSCOW — With the clock running out on a new US-Russian arms treaty before the previous Strategic Arms Reduction Treaty, or START, expires on December 5, a senior White House official said Sunday said that the difficulty of the task might mean temporarily bypassing the Senate’s constitutional role in ratifying treaties by enforcing certain aspects of a new deal on an executive levels and a “provisional basis” until the Senate ratifies the treaty.
As far as I know, this has never been done before with respect to arms control agreements, temporarily or otherwise. But I am willing to be corrected on this. Whether it has been done before or not, this plan obviously creates some structural tensions. What if the Senate decides not to ratify? How long are the executive agreements in effect? And why wouldn’t such a method be used for all treaties prior to Senate advice and consent? Whom should we ask? Maybe the new Legal Advisor to the State Department has an opinion on this?
And why wouldn’t such a method be used for all treaties prior to Senate advice and consent?
Presumably, the idea is that the military is particularly under the President’s control, so that an Executive Agreement here would be acceptable even if it weren’t for other areas of law.
Whether that is correct, I wouldn’t know where to begin to say. According to the constitution, the way to do this is through a ratified treaty, full stop. But then, the constitution also says that treaties have direct effect…
Julian, The Arms Control and Disarmament Act of 1961
expressly contemplated the approval of arms control accords as congressional-executive agreements, and the 1972 Interim Agreement on Strategic Offensive Arms was approved by joint resolution. On the other hand, since at least 1991 every arms control agreement has included the Senate’s expression of “its intent to approve international agreements that would obligate the United States to reduce or limit the Armed Forces or armaments of the United States in a militarily significant manner only pursuant to the Treaty Power as set forth in Article II, Section 2, Clause 2 of the Constitution.” See pages 995-99 of this.