Evading the Treaty Power?

I have posted my essay Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements (11 Florida Int’l U. L. Rev. 371 (2016)) on SSRN.  Here is the abstract:     

The U.S. Constitution states that the President can make treaties with the advice and consent of the Senate, provided two thirds of Senators present concur. This high threshold for consent reflects the framers’ concern that treaties not be too easy to make. No one said the President alone could make treaties; many emphasized the contrary. James Wilson, for example, declared that “[n]either the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people”; Hamilton made similar observations in The Federalist.

In modern times, however, Presidents on their own authority have made international agreements that look much like treaties. 2015 provides two examples. First, the President negotiated an agreement with Iran, China, France, Germany, Russia, Britain, and the European Union regarding Iran’s nuclear development. Known as the Joint Comprehensive Plan of Action (JCPOA) and announced in July 2015, its principal goal was to limit Iran to non-military nuclear development in return for lifting U.S. and international economic sanctions on Iran. Second, the President joined with leaders of over 150 nations to produce the Paris Agreement on climate change, with a final version announced in December 2015. The Agreement attempted to promote and coordinate controls on carbon emissions in response to concerns over human-caused global warming. Both agreements appear to involve substantial commitments by the United States, but neither will depend on approval by the Senate (or Congress).

The President contends that these agreements are nonbinding under international law and so can be made on the President’s sole constitutional authority. This essay assesses that claim. It generally agrees with the President’s basic proposition but raises concerns about the application of that proposition to the Iran and Paris Agreements. It concludes that without adequate safeguards this approach can provide the President with substantial ability to evade the constitutional checks on the treaty-making power.

Put a little more strongly, I think the Iran agreement and the Paris agreement are both of dubious constitutionality on these grounds.  The issue is difficult, however, because the pure view that all international agreements must be made through the treaty making power is, in my assessment, wrong.  Both executive agreements and nonbinding agreements are part of the President’s power under the Constitution’s original understanding, as I explain in the essay.  Thus the challenge is identifying when they go too far.

For a different perspective on the Paris agreement, see this important new article by Daniel Bodansky and Peter Spiro, noted here.  (They think of the agreement as implicitly approved by Congress, rather than (as I do) a sole executive agreement whose main commitments are nonbinding.)  My view is, I think, consistent with the way the State Department thought about the agreement (the Department worked hard to make the material commitments nonbinding), though perhaps not the way the Department should have thought about the agreement.

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