New START Resolution of Ratification (Why Not a CEA?)

by Peter Spiro

The draft Resolution of Ratification for the New START treaty approved last week by the Senate Foreign Relations Committee is now up on Senator Richard Lugar’s webpage.  It contains all sorts of required certifications, reports, and briefings.  I can’t tell if any of it is really significant by way of constraint.  (Lugar claims in his press release that the required certification of capacity to monitor for Russian noncompliance is unprecedented; presumably, that capacity exists.)  I assume the Democrat acceptance means that the President is on board, on both policy and constitutional fronts.

One provision that isn’t new but is meaningful: the closing declaration that all arms control agreements shall be undertaken only as article II treaties, something now boilerplate in all such resolutions.  You have to wonder if the Administration didn’t consider going the congressional-executive agreement route on this.  It would surely have been easier to get the simple bicameral majority than supermajority Senate approval, and they would have had some pedigreed academic work by way of ammunition.  But in the end it probably wasn’t worth a constitutional showdown; the result is a landscape in which congressional-executive agreements are acceptable for some types of agreements, but not others.  Full interchangeability may come some day, but we’re not there yet.

http://opiniojuris.org/2010/09/20/new-start-resolution-of-ratification-reports-briefings-meaning/

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