Monday, August 29, 2011

Prospective Advice & Consent

(Many thanks to Diane Marie Amann and IntLawGrrls for inviting me to contribute this guest post!)

Under the current U.S. treaty-making process, treaties are first negotiated and signed by the executive branch, then sent to the Senate for advice and consent, and then ratified by the executive branch.
For important multilateral treaties, the Senate stage of this process can move slowly and sometimes endlessly. The oldest treaty in the Senate's queue of pending treaties arrived in 1949, and the backlog includes treaties supported by administrations from both parties, such as the Law of the Sea Treaty (prior IntLawGrrls posts). (credit for above left photo of Capitol's wing)
During an interview last year the previous the Legal Adviser of the U.S. Department of State, John Bellinger, described this backlog as weakening the credibility of current U.S. negotiators because

'our negotiating partners have no confidence that the executive branch will necessarily be able to get a potentially controversial treaty through the Senate.'

Our negotiators, he suggested, were in a situation akin to “the boy who cried wolf.”
In an article forthcoming next year in the Yale Journal of International Law, I propose a new approach to treaty-making that would alleviate these problems – an approach that I call “prospective advice and consent.”
Briefly, I argue that under certain conditions, the Senate can and should give its advice and consent to treaties in advance of their final negotiation. Specifically, the Senate could give its advice and consent through the passage of a resolution that, by a two-thirds vote, authorizes the President to make a treaty or multiple treaties that conform to whatever conditions are set out in the resolution. Provided that the negotiated treaty or treaties ultimately conform to these conditions, the President could then ratify without further action by the Senate. This approach would both speed up the treaty-making process and strengthen U.S. credibility at the bargaining table, thus potentially allowing the United States to obtain more favorable treaty terms.
The article takes up two main questions: First, would prospective advice and consent be constitutional? Second, would it be workable and desirable? My answers are yes and yes, with some qualifications.

The constitutional question centers on the Treaty Clause of Article II of the Constitution. I show that the text, historical context, and evolving practice of that clause leave the President and the Senate with the flexibility to determine the timing and specificity of the Senate’s advice and consent. The Treaty Clause simply gives the President the

'power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.'

Once we accept – as we currently do – that “advice and consent” can come at the same time, nothing in the text dictates when this must occur. Indeed, on several occasions President Washington received the Senate’s advice and consent to negotiate treaty amendments and then, following successful negotiations, ratified these amendments without returning again to the Senate.
I also see no constitutional problem in the Senate giving its advice and consent to negotiating objectives rather than to the specific text of a treaty, provided that the negotiating objectives satisfy the intelligible-principle test. As I show, the Senate did this several times in relation to a series of treaties extending the U.S.-Mexico Claims Commissions in the 1920s and 1930s. In any event, this is how Congress authorizes the ex ante congressional-executive agreements that are the bread-and-butter of U.S. international agreements.

On the practical side, I argue that prospective advice and consent would work well for certain types of treaties. In this post, I’ll discuss one type: major multilateral treaties where U.S. negotiating power would otherwise be reduced because other negotiators doubt the President’s ability to deliver the Senate. (credit for below left photo of White House)
Why might the Senate be willing to give prospective advice and consent to such treaties?
For one thing, to the extent that the United States can negotiate better terms if it can credibly signal the Senate’s agreement, then the prospect of better terms might in turn make the Senate more willing to act. The Senate can set tough terms in a resolution of prospective advice and consent.
For another, this approach would give the Senate a long-desired formal role at the negotiations stage, thus potentially making the inter-branch relationship more collaborative and less adversarial.
In terms of timing, I argue prospective advice and consent would best come late in the negotiating process, when the overall contours of the treaty are in shape but important points of contestation remain.
A few caveats:
► First, I don’t think prospective advice and consent would always work. Sometimes the Senate would not give it or the President would be unable to succeed in negotiating a treaty along the Senate’s terms. Instead, I make the modest claim that prospective advice and consent might sometimes work where post-negotiation advice and consent would not be obtainable (or would take many years to achieve).
► Second, I recognize that the Senate may be leery of ceding final review of a treaty. In response, I argue that the Senate could condition its resolution of advice and consent in a way that would preserve some form of post-negotiation review.
► Third, I don’t think prospective advice and consent is desirable for all types of treaties. There is a broad scholarly debate over how U.S. treaty-making can and should be legitimately accomplished (e.g., through the Treaty Clause, congressional-executive agreements, or executive agreements). I don’t think there’s a single answer to this question, and my article does not offer prospective advice and consent as a sole solution. Rather, I argue that it is a legitimate option that would work well in some circumstances.
Comments on this work-in-progress would be most welcome!

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