- - Tuesday, December 29, 2020

Editor’s note: This is the latest in a series “To the Republic: Rediscovering the Constitution.” Click HERE to read the series.

Article II, section 2 of the Constitution confers on the Senate the exclusive power to provide “advice and consent” to the president on treaties. Most Americans believe that the Senate ratifies treaties, but that is the president’s function and is one of many brilliant checks and balances in our system of government, as noted by Alexander Hamilton in the Federalist Papers.

Since the Senate may opt to attach conditions or reservations to its advice and consent, the president has the final option of deciding not to ratify the treaty.

The concept of advice and consent was debated during the Constitutional Convention. Some viewed this as the legislature encroaching on the lawful powers of the executive, while others believed that advice and consent is a reasonable counterweight to executive power.



But this check of advice and consent may be and has been evaded by a determined executive. Indeed, there is at least one instance in which the executive branch has negotiated a consequential international agreement and circumvented or avoided Senate review entirely.

It is worth examining how this occurs and what the consequences are.

Explaining the notion of advice and consent requires an understanding of how formal treaties come into being. Treaties are negotiated by the executive branch, and the Senate then considers providing its advice and consent requiring a two-thirds vote, meaning 67 senators, which then allows the president to proceed with ratification.

Historically, the vast majority of treaties submitted to the Senate receive advice and consent regardless of which party controls the Senate and the presidency. Several notable treaties have, in fact, not been approved, but such rejection is the exception and not the rule.

For example, the Senate did not approve the Treaty of Versailles creating the League of Nations in 1920 and, more recently, did not grant advice and consent to ratification of the Comprehensive Nuclear Test Ban Treaty in 1999. Between the roughly 80 years of those rejections, however, the Senate approved 1,523 treaties and nullified only 21 of them.

From a legal perspective, international agreements that enter into force for the United States after two-thirds of the Senate provides advice and consent are known as treaties. International agreements that enter into force for the United States without the advice and consent of the Senate are considered executive agreements.

If a treaty is presented to the Senate and senators fail to give consent to it, the treaty simply remains on the Senate calendar, sometimes for years. For example, in the George W. Bush administration, the issue arose as to who “owns” treaties, since President Bush wanted to “take back” the Comprehensive Nuclear Test Ban Treaty from the Senate. After much legal wrangling, it stayed on the Senate calendar, where it remains today.

The bottom line, of course, is that the United States does not become a party to the treaty.

Though other mechanisms exist, typically international agreements of major import are submitted to the Senate. The submission of international agreements and their disposition by the Senate — either acceptance or rejection — ensures that the United States speaks with a single voice on matters of material international interest.

It guarantees that the nation is committed to the agreement and that future presidents will not consider withdrawal until enough time has passed resulting in changed circumstances. No president has ever claimed the authority to negotiate legally binding controversial international agreements unilaterally. Usually, only minor agreements that attract little public interest have been concluded as executive agreements, assuming that they may be negotiated under the executive authority of the president.

If such agreements would have a bearing on domestic law, such as requiring that Congress enact legislation to carry out the goal of the agreement, then it must be submitted to the Senate. There are also what is known as congressional-executive agreements in which Congress legislates that a certain agreement should be negotiated, and the executive branch then conducts the negotiations.

Then there is the Joint Comprehensive Plan of Action (JCPOA), otherwise known as the Iran nuclear deal, an unfortunate anomaly within the realm of international agreements. Unequivocally, the agreement was of vital national security importance and garnered major national and international attention and debate.

It was designed and intended to do nothing less than to reshape the balance of power in the Middle East, and yet it was not negotiated as a treaty or an executive agreement, both of which are legally binding, but rather as a mere political commitment.

Why? Based on the statements of Obama administration officials, in particular Secretary of State John Kerry, the Obama administration constructed it the way they did specifically to avoid the necessity of Senate approval because they did not have 67 votes needed. They knew that it would fail to gain advice and consent. In other words, advice and consent on an incredibly weighty issue of foreign policy was contravened for the sake of the agreement’s survival.

To my knowledge, that had never been done before in American history. While it was perfectly lawful and quite clever, it means that the agreement is little more than a handshake, which can be reversed whenever and as quickly as policy changes.

The JCPOA remains highly controversial. President Trump withdrew from it, and President-elect Joseph R. Biden is likely to rejoin the agreement. Had the JCPOA been negotiated as a treaty and received Senate approval, it is doubtful that Mr. Trump would have withdrawn from it so precipitously shortly after it was ratified. But since it was merely a political commitment by one administration, it allowed immediate withdrawal anytime Mr. Trump decided to do so, with no legal ramifications whatsoever.

Legally binding commitments cannot be withdrawn from so easily since they contain legally binding withdrawal provisions requiring notice (normally 90 days) and a stated rationale for withdrawal. This procedural element ensures a certain level of stability in U.S. foreign policy.

Notably, the United States has not withdrawn from many treaties that we have ratified, but when we do, they have normally been in place for years, and the circumstances have changed dramatically from the status quo ante when the treaty was initially negotiated. For example, Mr. Bush withdrew from the Anti-Ballistic Missile Treaty in 2002, fully 30 years after it was signed.

So where to go from here? If Mr. Biden is serious about rejoining the JCPOA, he would be well advised to begin anew and to negotiate a legally binding treaty that would be acceptable to the Senate, which he could then ratify. That would ensure that it stood the test of time and had bipartisan support. It would also provide a level of predictability to the international community, signaling the genuine seriousness with which we approach our more substantial international commitments.

⦁ David S. Jonas is a partner at FH+H Law Firm in Tysons, Virginia. He is a retired Marine Corps officer and has served as general counsel of two federal agencies. He is an adjunct professor at Georgetown and George Washington University law schools.

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