Magazine | December 31, 2014, Issue

Advice on ‘Advice and Consent’

Congress can resist presidential departures from the Constitution’s treaty requirement

Despite the Democratic party’s losses in November’s elections, President Obama has audaciously begun ignoring constitutional restraints in order to impose his policy views. This is true not only on domestic issues, such as immigration and Obamacare, but now in foreign and defense policy too. Checking Obama’s misuse of his foreign-affairs powers should be a top priority for the new Republican majorities in Congress.

Obama’s worldview demands major departures from traditional American foreign policy and threatens to use international agreements to transform domestic policy. For example, as part of his crusade against global warming, Obama signed an amorphous agreement with China last month, ostensibly committing the parties to limit carbon emissions. The president will surely invoke it as a legal basis for sweeping executive orders on climate change. Similarly, now that the president has signed the Arms Trade Treaty (which has no chance of Senate ratification), he may attempt to limit firearms sales through executive action.

Overseas, Obama desperately wants a face-saving deal with Iran that will give him a diplomatic success without legislative constraints and let him leave office without Iranian development of a nuclear weapon. “We wouldn’t seek congressional legislation in any comprehensive agreement for years,” one senior administration official leaked about the Iranian negotiations. Only Iran’s intransigence in pursuit of an even better deal has forced an extension of negotiations from November 24 to next summer.

These assertions of unilateral executive power raise constitutional conflicts of the first order. Congress must first ask whether any of Obama’s agreements include obligations sufficiently grave to amount to a treaty under the Constitution — or, alternatively, whether these potential deals flow from the president’s legitimate constitutional authority in foreign affairs, and thus need not be embodied in treaties.

If, as some reports indicate, the administration has pledged not to use military force against Iran in exchange for a halt to its nuclear-weapons program, such a commitment would almost certainly require Senate ratification. The West cannot rely on Iran’s promises to confine itself to a civilian nuclear program, but if such an agreement were adopted, Tehran would know that Obama would not resort to military force, and Iran’s nukes would dramatically reshape the regional balance of power in its favor.

Republicans and Democrats should agree on one thing when it comes to military force: An international agreement’s renunciation of the use of American force manifestly limits U.S. sovereignty, with enormous effects on national security. Obama’s move on Iran may well violate Article II of the Constitution, which declares that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,” but only if “two thirds of the Senators present concur.” Article II’s plain meaning and history requires that any agreement that restricts the nation’s sovereignty must undergo Senate approval by a two-thirds supermajority.

A history of bipartisan agreement supports this view. “With the exception of the SALT I agreement, every significant arms control agreement during the past three decades has been transmitted to the Senate pursuant to the Treaty Clause of the Constitution,” Senators Joe Biden and Jesse Helms declared about the Bush administration’s 2002 nuclear-arms-reduction deal with Russia. This unlikely duo agreed that President Bush had to submit the deal as a treaty: “No constitutional alternative exists to transmittal of the concluded agreement to the Senate for its advice and consent.” Senators of both parties should again join together to stop an assault on the separation of powers.

As advisers to President Bush at the time, we supported vigorous executive authority to protect our national security after the 9/11 attacks. We approved measures that included U.S. withdrawal from the 1972 Anti-Ballistic Missile Treaty with Russia. When Bush proposed the 2002 agreement with Russia, he agreed with Biden and Helms that it should undergo the Constitution’s treaty process. Even though Bush was urged to resort to a scheme of mutual reductions without any formal treaty, he wisely placed constitutional text and historical practice first.

Bush’s logic remains valid today. The Constitution requires that treaties win supermajorities to guarantee that they are backed by the highest levels of political consensus and that (in the words of Federalist No. 1) we have “good government from reflection and choice” rather than bad government from “accident and force.” Article II’s supermajority process checks presidents who are tempted to bargain away national sovereignty for political advantage or short-term gain.

White House claims that an Iran deal does not amount to a treaty ring false. The administration has argued that the agreement would involve multiple parties — not just Iran and the United States, but also the Europeans and others who have sanctioned Iran. The inclusion of many parties, however, has nothing to do with a treaty’s status: Multilateral agreements, such as the Chemical Weapons Convention and the Nuclear Non-Proliferation Treaty, have undergone Senate approval. Other reports point out that the Iran agreement may have a sunset date, but an expiration date has not previously denied an international deal the status of a treaty.

We concede that no “red line” unambiguously divides agreements that require Senate ratification from those that do not. Presidents have long made “sole-executive agreements” that involve areas within the executive’s exclusive competence, such as diplomatic negotiations, political support, and the recognition of governments. Some pacts — most prominently trade agreements, such as the 1993 North American Free Trade Agreement and the 1996 ministerial declaration of the World Trade Organization — have undergone approval by majority vote of both houses of Congress. These “congressional–executive” agreements first came into frequent use during the New Deal years. Along with the sole-executive agreement, they have swamped treaties. Between 1939 and 1989, for example, the U.S. entered into 11,698 executive and congressional–executive agreements, but only 702 Article II treaties that underwent the supermajority-approval process in the Senate.

Sole-executive agreements can only relay a promise by the current occupant of the Oval Office about the exercise of his own powers. The Constitution vests the president with authority as commander-in-chief to make decisions beginning and ending the use of military force. So, for example, an agreement that halted Tehran’s nuclear-weapons program but imposed no similar obligation on the United States likely would not be a treaty.

There is some precedent for such agreements. The “Brussels agreements” of the mid 1990s, which formalized the return of nuclear weapons from Ukraine, Kazakhstan, and Belarus to Russia, did not require congressional consent, although the U.S. was a signatory. The Agreed Framework with North Korea, which sought to halt Pyongyang’s nuclear-weapons program, also did not undergo Senate review. Even the Proliferation Security Initiative, which coordinated efforts to stop shipments of technology that could be used in weapons of mass destruction, did not take the status of a treaty. None of these agreements required the United States to promise weapons reductions or refrain from the use of force. If the Iranian deal contains no promise against a future American attack and merely “requires” Iran to renounce weaponization, it could take the form of an executive agreement.

#page#But agreements that extend beyond a president’s time in office or make long-term commitments of U.S. sovereignty must undergo the Article II treaty process. An enduring non-aggression pact, or even a unilateral commitment not to use American force on a lasting basis, demands the participation of other branches of government. Together with ending economic sanctions (which Iran will demand), these commitments would work a significant change in the U.S.–Iran relationship that is tantamount to a peace treaty. Peace agreements should receive Senate approval. Only the cooperation of the executive and legislative branches of government over time can ensure that the U.S. will live up to restrictions on its sovereignty.

Meanwhile, Obama’s efforts to tie the United States to a feckless global-warming agreement with China test other parts of the international-agreement rules. The president cannot commit the nation to environmental standards on his own, because only Congress has the constitutional power to control interstate and international commerce (under which heading the federal government regulates the environment). International executive agreements cannot expand the president’s authority, which was delegated by Congress under the Clean Air Act, to issue regulations on global warming. Such a sweeping change in U.S. domestic law would require Congress to pass a new statute, as the Clinton administration and Congress did to implement the NAFTA and WTO agreements. At the very least, the China climate deal should be approved by majorities of both houses of Congress, if not by two-thirds of the Senate.

Obama would justify executive action under the Arms Trade Treaty in the guise of respecting a treaty’s objectives while waiting for the Senate to ratify it. Parts of the treaty nonetheless would violate the Second Amendment and should not survive the ratification process. For Obama to use that excuse in this case to act without congressional authorization would be even more lawless than his controversial immigration orders.

Whether the Iranian or Chinese deals constitute formal treaties or not, and considering the unratified status of the Arms Trade Treaty, Congress should use the tools that the Constitution provides to protect its political influence in foreign affairs. First, Congress can use its exclusive authority over foreign commerce to impose permanent sanctions on Iran. Congress could scuttle an Iranian agreement simply by making sanctions mandatory, without any possibility of a presidential waiver. Obama may still desperately seek an agreement, but Iran won’t sign if the sanctions continue. Similar creative legislative steps (although obviously subject to a potential presidential veto) could be taken to frustrate the China climate agreement or any executive action on gun control.

Second, Congress can make clear that any agreement made by Obama alone binds only him. If Obama attempts to lift the Iran sanctions pursuant merely to a sole-executive agreement, Congress should provide by law that any sanctions will automatically revive on January 20, 2017. Congress could also make this clear by appropriating funds for new military forces earmarked for the Persian Gulf region. These would powerfully signal that while Iran’s behavior may find favor in the Obama White House, it meets with the opposite reaction from the other end of Pennsylvania Avenue. Whether Iran would agree to a deal in such circumstances is highly doubtful.

A sole-executive agreement (which is what the Iranian deal would become) represents a promise that a president will exercise his powers in a certain way. A unilateral agreement with Iran can promise only that the United States will not attack and will lift sanctions for as long as Obama remains president. Obama’s successor is free to rip up the Iranian deal on his or her first day in office. Iran can feel confident of long-term economic relief only if the president lifts sanctions now and then Congress agrees to repeal them permanently.

Whatever the status of these and other international agreements, there is much to be said for seeking congressional assent to significant and risky policies. President Obama has yet to understand, as President George W. Bush did, that winning congressional support in war and peace can strengthen his hand abroad. It is rare that a policy can achieve so many benefits at once. Submitting the Iranian and Chinese agreements, or gun-control legislation, to Congress would ensure a broad consensus that the measures advance American national interests. This would promote bipartisan cooperation, subject crucial foreign policies to legislative review, and restore the proper constitutional balance over treaties. Congress’s approval ensures that if these deals truly advance the cause of peace, they will be long-lasting.

– Mr. Bolton is a senior fellow at the American Enterprise Institute and a former U.S. ambassador to the United Nations. He is the author of Surrender Is Not an Option: Defending America at the United Nations and Abroad. Mr. Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He is the author of Point of Attack: Preventive War, International Law, and Global Welfare.

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