[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.