The Constitutional Tools Of Foreign Relations – Guest Essayist: Professor Joerg Knipprath
When Barack Obama was elected in 2008, much was made in the press of the perception that this event reflected voters’ fatigue with foreign entanglements and a turning inward to domestic issues. While there is truth to that, events are not controlled by voters’ sentiments and have a way of upsetting comfortable delusions. It might be said, with apology to Leon Trotsky, “You may not be interested in international conflict, but international conflict is interested in you.” Thus, by 2012, Russia rising, Iraq fracturing, Syria boiling, China blustering once again placed foreign relations on the political radar. Still, Mitt Romney’s warnings about, for example, Russia as the preeminent geopolitical threat, fell on insufficient numbers of listening voters’ ears, and Barack Obama was re-elected.
If anything, given the administration’s continuing unwillingness to lead anywhere but from behind, foreign relations have become more urgent. This is a matter that could cause some embarrassment to the erstwhile secretary of state, Hillary Clinton, if the press were inclined to trouble her with such things. Emblematic of the current state of affairs is the diplomatic kabuki with Iran over its nuclear enrichment program. However, going well beyond Iran, the next president will need to clean up various foreign policy messes left by the current administration, requiring a “reset” (to borrow a term from that same secretary of state) of American political focus. That president, along with the next Congress, will need to employ the various tools, diplomatic, political, economic, and–one hopes, least likely–military.
It is useful to present an overview of the constitutional tools available to conduct foreign relations. Formally, Article II of the Constitution provides for the president to make treaties, which must be approved by 2/3 of the Senators voting. Treaties are diplomatic arrangements, and their tool of “enforcement” is through negotiation with, or confrontation of, a breaching party by the other party or third parties, for example, the United Nations. The various Geneva conventions on the treatment of prisoners of war are such arrangements. Treaties form a kind of positive morality, not truly law, in that there is no formal enforcement mechanism that can coerce a strong violator. Therefore, if China wants to flout a treaty obligation, there is no way to coerce it into seeing the error of its ways.
As to the United States, a treaty is not part of the domestic law tout court, enforceable against private citizens or public officials by suit in the domestic courts. For a treaty to be law, it must either be a “self-executing” treaty or be made part of the domestic law by some further action of Congress. A “self-executing” treaty is one that, in addition to being a diplomatic arrangement, expressly provides that, by its adoption alone, it automatically becomes part of the domestic law. The Supreme Court has correctly held that a treaty is presumed to be “non-self-executing.” It requires contrary language in the treaty to make it unmistakably clear that, by approving the treaty, the Senate is making it part of the domestic law.
Alternatively, if, as usual, a treaty is “non-self-executing,” further explicit action may incorporate its provisions into domestic law to be applied by the nation’s courts. For example, Congress may adopt provisions of a tax treaty into domestic law by passing general legislation to that effect or adopting specific laws that reflect the applicable treaty provisions. A bare majority of the Supreme Court made the dubious judgment in Hamdan v. Rumsfeld in 2006, that Congress had incorporated certain specific provisions of the Geneva conventions into domestic law by adopting the Uniform Code of Military Justice. As a consequence Hamdan, who was Osama bin Laden’s driver, bodyguard, and general factotum, could bring a claim in an American court, and that court could decide that Hamdan could not be tried in a military commission set up by order of President Bush.
While Congress could make a treaty obligation into a judicially enforceable aspect of domestic law, a president could not do so unilaterally through an executive order. Thus, in Medellin v. Texas, in 2008, the Supreme Court rejected President Bush’s directive that the Texas state courts must comply with a decision of the International Court of Justice. The United States had agreed at least partially to ICJ jurisdiction as a part of its treaty obligations with the United Nations. While a bill passed by Congress and signed by the president could make the principle of the ICJ’s decision part of American domestic law and, thus, binding on the state courts, presidential unilateralism could not.
In addition to treaties, presidents can enter into executive agreements with the leaders of other foreign nations. Executive agreements have been used since the Washington administration. However, they have changed significantly in scope and number. Originally, they were used to work out relatively minor or pro forma procedural matters that resulted from a treaty. Most foreign relations that bound the U.S. were set by treaty.
The Framers consciously took from the executive the sole power to control foreign relations that the king formally had enjoyed under the British constitution. Alexander Hamilton in The Federalist No. 75 gave an intriguing explanation. He argued that such a power is less dangerous in a hereditary monarch than in an elective president. The former, being identified in person with the country, is unlikely to be corrupted by foreign powers. On the other hand, “a man raised from the station of a private citizen to the rank of chief magistrate, possessed of but a moderate or slender fortune, and looking forward to a period not very remote, when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice duty to interest….” In a passage that might remind one of a would-be president today, Hamilton warns that an “avaricious man [or woman] might be tempted to betray the interests of the state for the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power.…”
Hamilton’s concerns notwithstanding, today, there are far more executive agreements than treaties to which the U.S. is a party. Moreover, they are now used for nearly the same substantive matters as treaties, in part, because presidents have found that anything controversial is unlikely to get 2/3 approval in recent Senates.
Executive agreements may rest on three bases. As mentioned, a treaty may specify that the president will make further agreements with the leader of the foreign nation. Or, Congress may pass a law that authorizes the president to make an executive agreement relating to a particular matter. Either of those paths to an executive agreement has the support of Congress, along with any direct constitutional power of his own on which the president may rely. The third option is for the president to act solely under his own constitutional powers, such as the commander in chief clause. Lacking explicit congressional support, this is the constitutionally weakest form.
Like a treaty, an executive agreement can be overridden by an act of Congress. However, such a law requires the president’s agreement, and a presidential veto of such a law requires an override vote by 2/3 of each chamber of Congress. Unlike a treaty, which binds future administrations until Congress and that president decide otherwise, an executive agreement must be reaffirmed by each successive president to remain in effect.
The recent “open letter” of Senator Cotton and 46 other Senators explaining the constitutional status of executive agreements (and, in like manner, of executive orders regarding sanctions) produced an overheated political reaction. However, notably, other than from the would-be constitutional scholars of the Iranian regime, there was no challenge to the letter’s substance.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.
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