Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements
01 Jan 2016-FIU Law Review (Florida International University)-Vol. 11, Iss: 2, pp 371
TL;DR: 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 as discussed by the authors. This high threshold for consent reflects the framers' concern that treaties not be too easy to make.
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.
28 Jul 2021
TL;DR: In this paper, the authors employed the Regional Security Complex Theory to construct the events related to both states' proxy conflicts and analyzed Trump's leadership style in the Middle East and its implication from the proxy war to Middle East security architecture.
Abstract: The heated bilateral relation between Iran and the United States has brought the middle east into another level of problem. The divided geopolitical and regional interest of both countries has led to several and many multidimensional issues, ranging from political, security, and even to economic ones. This article discussed the Iran – US tension on their proxy conflict in the Middle East. This article employs the Regional Security Complex Theory to construct the events related to both states’ proxy conflicts. The polarized region for sure has drawn another line that seems to be more complexed for both countries to achieve mutual understanding and continued peacebuilding. The US withdrawal from JCPOA, killing of Soleimani, and Saudi Arabia – Iran Yemen proxy war exacerbated the status quo. This article perceived that the intertwined issues show how the traditional thought of security should be redefined as both countries try to gain bargaining power. Especially with Iran that was hindered very much by sanctions and embargo placed by the US. This article discusses many important issues on Iran, US, and Saudi Arabia involvement and their correlated dynamics within the UN. This article analyzed Trump’s leadership style in the Middle East and its implication from the proxy war to the Middle East security architecture.
TL;DR: The history and modern trends in U.S. agreement-making have been discussed in this paper, with a view toward providing a foundation for a constitutional reassessment of the United States' international agreement making.
Abstract: This Chapter describes the evolution of the constitutional power to make international agreements in U.S. law. Reading only the Constitution’s text, one might suppose the constitutional regime for making international agreements in the United States to be quite straightforward. Article II, Section 2 states that the President has power to make treaties with the advice and consent of the Senate, provided two-thirds of the Senators present concur. Article VI provides that all treaties made under the authority of the United States are the supreme law of the land. No provision of the Constitution’s text directly mentions any power by the U.S. government to enter into any sort of international agreement apart from the “treaties” made according to Article II, Section 2 and having the force of Article VI. For over 100 years, the regime that appears on the face of the text roughly corresponded with reality. The next 100 years, however, transformed U.S. practice regarding international agreement-making to the extent that the Constitution’s text and analyses based upon it wholly fail to capture what actually exists in modern practice. Conventionally, this transformation is described as the rise of two alternate forms of agreements: (1) the sole executive agreement, done by the unilateral authority of the president in areas of the president’s particular constitutional authority (whatever those may be); and (2) the congressional-executive agreement, done with the approval of majorities of both Houses of Congress, and which is said to be fully interchangeable with the Article II, Section 2 treaty as a constitutional procedure. While accurate in some respects, even this conventional description fails to capture the complexity of modern agreement-making in the United States, and recent trends have contributed to the difficulty of providing a coherent legal and practical account. First, non-treaty agreements have diverse and sometimes unclear sources of authority. In some cases, the president negotiates the agreement and submits it for approval by majorities of both Houses of Congress. For most agreements, the president makes them without any after-the-fact approval from Congress or the Senate. Within this latter category, the president may claim various sources of authority to enter into non-treaty agreements: express statutory authorization from Congress in advance; implied authority from Congress; express or implied authority from a prior treaty; or independent constitutional authority. As a practical matter, it may not always be easy – or even possible – to distinguish among some of these categories. Increasingly, the president enters into international agreements on the basis of informal and often uncertain sources of authority, with uncertain legal effects. Nonetheless, treaties remain well represented among important agreements, at least in some areas (although making that assessment seems challenging), despite their numerical decline. Likewise, agreements approved after-the-fact by Congress, although relatively small in number, include some of the United States’ most important recent commitments in the area of international trade. Agreements made by the president alone range from trivial diplomatic arrangements to ones of great consequence. There is no satisfactory explanation for why some agreements are made in one way and some in others. This Chapter attempts to sort out the history and modern trends in U.S. agreement making, with a view toward providing a foundation for a constitutional reassessment.