29 Nov Ackerman on Congressional Participation in Iraq Accord
Bruce Ackerman has this piece in today’s LA Times on whether Congress needs to participate in the approval of an agreement with Iraq to govern relations after a US withdrawal. You won’t be surprised to hear that he thinks congressional action to be constitutionally required. The Administration is apparently pushing the line that the president can go it alone in entering into the agreement, which Ackerman says
does not even pass the laugh test. American presidents do have unilateral authority to make foreign agreements on minor matters. But the Constitution requires congressional approval before the nation can commit itself to the sweeping political, economic and military relationship contemplated by the “declaration of principles” signed by Bush and Maliki to kick off the negotiations.
That has to be right. From the looks of it, this agreement is something in the way of a mutual defense agreement. It would be hard to shoehorn it into a category amenable to a so-called sole executive agreements, though it would be interesting to see how the Administration might try. (Status of Forces Agreement? Relating to diplomatic recognition? For all we know, this crowd might argue that it’s like a postal agreement!)
I have more trouble with Ackerman’s assertion that congressional approval could go the way of a congressional executive agreement (that is, with bicameral majority support instead of with an article II supermajority). (Ackerman of course is on record on the point.) There doesn’t seem to be any precedent for going the NAFTA/WTO way on an agreement of this description (as far as I know, mutual defense treaties, for instance, have always gone the article II route). But it would be interesting to see the Administration try (and the legislative numbers might give them a reason to). Constitutional showdown, anyone?
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