The disappearing treaties

Read books on constitutional law and occasionally you'll stumble across a concern somebody raises that you don't hear voiced frequently. I had such an experience recently reading Michael I. Meyerson's fine volume Liberty's Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World (2008).

These days you can't stick your toe in the pool of constitutional interpretation without bumping into someone, usually a conservative, upset over the expansive reading given to the Fifth Amendment power of government to take property through eminent domain. Others on the right bemoan Congress using the commerce clause (Article I, Section 8) as basically a justification to let the federal government regulate anything and everything.

The liberal angst over constitutional interpretation, tempered now that George W. Bush is out of office, is the idea that the power granted to the President as Commander-in-Chief (Article II, Section 2) gives him authority to put troops in Vietnam, Afghanistan, or Iraq. (My most persistent critic frequently chides me to write an entry blasting President Bush for his foreign policy, apparently because she can't find enough of that on the Daily Kos.)

But in Meyerson's book, I ran into a thoughtful criticism of something we don't find discussed very often; namely, the virtual evisceration of the treaty power due to their replacement by constitutionally suspect "executive agreements." Myerson's explication of this begins on page 184 with a mention of a recent case, American Insurance Association v. Garamendi, 539 U.S. 396 (2003). The case centered around California's passage in 1999 of the Holocaust Victim Insurance Relief Act, which required insurance companies doing business in the state to disclose information about policies they issued in Europe between 1920 and 1945.

The insurance companies argued that California could not enact such a law, as it was precluded by an agreement between President Clinton and German Chancellor Schroeder. A five to four majority, led by Justice Souter, ruled in favor of the insurance firms; in essence holding that the agreement between American and German chief executives preempted state law.

There's just one tiny problem, Professor Meyerson frets. The agreement between Clinton and Schroeder was not a treaty. And not only are "executive agreements" not mentioned in the Constitution, but The Federalist makes a reasonable claim that only by treaty could the United States make agreements with other lands.

Addressing the specifics, Myerson notes that there are two types of executive agreements. One is a congressional-executive agreement--NAFTA is his example--where the matter becomes effective when both houses of Congress give their approval. The second type is a sole-executive agreement, in which there is no congressional activity at all; the President alone signs it and it's done. It was a sole-executive agreement that Clinton signed with Schroeder; so in effect in Garamendi the majority ruled not only that an international agreement preempts a state law, but that such an agreement preempts state law even if it is only made by the executive branch with no congressional oversight.

I'll admit to being quite startled after reading the following excerpt from Myerson:

"These two types of executive agreements have virtually replaced treaties. In fact since 1960, fewer than 5 percent of all American foreign commitments have been formalized by treaty. The appeal of the agreement process is obvious: it is simpler than obtaining a two-thirds vote in the Senate. Indeed, NAFTA in all likelihood never could have been ratified as a treaty; it received only sixty-one votes in the Senate, significantly less than the sixty-seven which would have constituted the requisite two-thirds super-majority." (p. 185).

I have one minor quibble with Professor Myerson's account, which I bring up only because it's small trap easy to fall into when you're discussing treaties, constitutional amendments, or veto overrides where a two-thirds majority is required. We tend to look at sixty-seven as an absolute number, as though this is the minimum threshold for two-thirds of the Senate since there are a hundred senate seats. But in Article 2, Section 2, the Constitution says that the President has power "to make treaties, provided two thirds of the senators present concur." That's my emphasis, by way of pointing out that two-thirds of senators present is not the same as two-thirds of the Senate. (See The Federalist #75 for Alexander Hamilton's observation on this.)

So if NAFTA had been a treaty, it would not necessarily have needed sixty-seven votes in the Senate to pass. Yes, it would need those sixty-seven yeas if all one hundred senators were present at the tally. Sometimes, however, there is at least a senator or two who can't be there because he is sick, drunk, incarcerated, or too busy running for president. If just two Senators are out of the building, the number required for passage of a treaty drops to sixty-six. That's why Article 1, Section 5 says that in "Each House... a Majority of each shall constitute a Quorum to do business..." So in theory a treaty could be ratified by the votes of only thirty-four Senators; this assumes only fifty-one guys showed up that day and the minimum number of yeas was recorded.

That's a digression not meant to demean Myerson's reasonable point. I mentioned that he looks to The Federalist for his argument that treaties were the one and only type of agreement with other nations that the Constitution and its framers endorsed. And just as I brought up Federalist #75 with regard to the quorum issue, Myerson cites it in support of his argument that the framers specifically meant to keep the President from acting alone, as he does in today's sole executive agreements, and that they meant to keep the House of Representatives out of foreign negotiations entirely, which negates NAFTA and any other congressional-executive agreement.

Here is the man on the ten dollar bill explicating why agreements with other countries could not be left solely to the President:

"However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of 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 his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States."

I take it from these words that Hamilton would be horrified at the notion of President Clinton, all by himself, making a deal with the German Chancellor.

But Hamilton wasn't done. In addition to answering the criticisms of those who thought that the President should be able to act unilaterally in making international agreements, Hamilton also disagreed with those who thought the House should be part of any treaty deliberations:

"The remarks... which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, SECRECY, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project."

So Hamilton wouldn't have been a fan of NAFTA either, with its involvement of the House of Representatives.

If you think Myerson is onto something here--and I do--it's all a bit unsettling. We've seen that it's a lot easier to make a sole executive agreement or a congressional agreement than to ratify a treaty. But there is no power given to the federal government or any of its branches to circumvent the treaty power because treaties are difficult to ratify. In fact, if you stop and think about it, this is a principle that if carried to an extreme would destroy the Constitution and even the liberties of the American people.

After all, it's easier to not worry about whether citizens are getting fair trials, due process, or equal protection than to insure that these guarantees are strictly enforced.