News outlets have reported that U.S. and Russian negotiators reached an agreement about future military operations in Syria, including a (very optimistic) “cease fire” between the Syrian government and the rebels. Obviously, this deal is not going to be submitted to the U.S. Senate for its advice and consent. Does that make it potentially unconstitutional, like the nuclear deal with Iran and the Paris climate agreement?
No one seems to be arguing that it is unconstitutional. I think that’s right, but it’s important to ask why.
(a) It might be a nonbinding agreement. I haven’t seen the relevant documents, if there are any. But quite possibly, the “deal” is all just statements of intent, not incorporated into any formal agreement. If this is the case, as I suspect it is, then the “agreement” fits comfortably with the President’s executive power to make nonbinding agreements. It would not seem to raise any of the concerns I pointed out regarding the Iran nuclear deal, including (1) it is not likely to be misunderstood as a binding agreement by some of the parties; and (2) it probably does not promise specific actions at specific times in the relatively distant future. Thus it probably does not intend to bind, and would not be understood by other parties as binding, future U.S. Presidents.
(b) Even if it is binding, the agreement might be a constitutional executive agreement. This is not simply because it it a military agreement. Long-term military agreements need to be approved by the Senate, like other long-term agreements. For example, the 1817 agreement with Britain limiting armaments on the Great Lakes (the Rush-Bagot agreement) was submitted to and approved by the Senate (although President Monroe at first thought perhaps Senate approval wasn’t necessary). However, temporary military agreements such as cease fires were undertaken as executive agreements in the nineteenth century, notably in the War of 1812 and the Mexican War. That is consistent with the idea that minor short term agreements can be done on the President’s sole constitutional authority because they do not amount to treaties. Indeed, one of the prominent international law treatises of the eighteenth century, by Christian Wolff, uses cease fires as an example of international agreements that are not treaties.
Of course, it is hard to assess the Syria deal without knowing its terms. It’s possible that it contains specific long-term obligations that are intended to be binding — in which case it should be submitted to the Senate. But it is easy to imagine circumstances in which it need not be. That suggests caution in making broad statements about the need to submit “all” international agreements to the Senate. Despite the clear command of the treatymaking clause, the Constitution’s design is not that simple.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.