Fast-Track

Ramesh Ponnuru writes:

While I’m on the subject of this blog, I may as well mention a post there that had caused me some puzzlement. Jacob Levy, in the course of making a point about originalism that I think is wholly sound, remarked that he thought that the “fast track” procedures for approving trade agreements were unconstitutional. (“Fast track” has been relabeled “trade promotion authority” for obscure p.r. reasons.) I had previously associated this view with crackpots, not people who know what they’re talking about, so I was surprised to see it coming from Levy–and I’d be interested in seeing why he takes it.

I appreciate that Ponnuru was surprised rather than unsurprised to see me espousing a crackpot view…

It’s a view that has mostly been espoused in court by unions trying to block NAFTA, though Lawrence Tribe represented them on one occasion, as I recall. Neither is entirely comfortable company, to be sure.

The Constitution requires a two-thirds vote of the Senate to ratify treaties; the Senate has the right to amend these or ratify them only in part. The post-World War II innovation of a “Congressional-executive agreement” moves many international agreements out of the category “treaty” and into the catgeory of something else (an agreement) that can be submitted by the President for a straight up-or-down vote– by simple majorities of both houses.

This is not the treaty-ratification procedure. Neither is it the ordinary legislative procedure. (One might think that NAFTA was just a legislative act, as far as U.S. domestic law was concerned, because it lowered tariffs and did other things that Congress has to do legislatively. But it doesn’t fall under the category of ordinary legislation.) When Congress and the President arrange a new procedure for enacting… stuff, and when that “stuff” falls between Constitutionally-recognized categories (treaties and legislation), I think we have good grounds to worry that something constitutionally dubious is going on. Congress and the President aren’t supposed to create new extra-constitutional procedures in side agreements between themselves.

Moreover, there appears to be no consistent standard as to when something counts as a treaty and when it is eligible for a Congressional-executive agreement. It’s not only trade; and when it is only trade, that’s just because Congress said so. This allows for the Treaty Clause to be gutted; the President and Congress might agree to have everything submitted for fast-track approval rather than 2/3 Senate approval. (As far as international law is concerned, we’d still be bound by the treaties-that-aren’t-treaties-as-a-matter-of-domestic-law.)

Whether something is a treaty or not has been held by the courts to be a non-justiceable political question– also often a red flag. The “political questions” doctrine is sometimes right, that there are things that the political branches do that the courts lack the competence to inquire into. But it always means that there’s something potentially unconstitutional going on under its cover. On balance I think the courts are right to stay out of the question of whether a given military action is a war for the purposes of triggering the requirement that Congress declare it. But that means that, at least sometimes, at least potentially, there are military actions that should properly be constitutionally classified as wars that won’t be. At least some of the choices that the political branches are left free to make on any given subject by the political questions doctrine are probably unconstitutional; the courts simply hold that they’re not competent to determine which ones.

Finally, during FDR’s presidency, when progressive thought turned against so many of the procedural and substantive limits that the Constitution placed on policymakers, the Treaty Clause was one of the objects of derision. In the early 40s, a number of states passed resolutions calling for a constitutional convention to replace the Treaty Clause power with majority approval by both houses. The House passed a constitutional amendment doing so, in 1945. But the amendment and the movement for a convention died, because Truman found that it wasn’t necessary; he submitted many of the postwar agreements to both houses of Congress under Congressional-executive agreements.

This seems like pretty compelling evidence to me. Even New Deal-era progressives thought that the Constitution had to be amended to authorize two-house-majorities rather than 2/3 Senate approval for treaties (and they didn’t tend to be scrupulous about pursuing Constitutional amendments to change the Constitution). Some states as well as the House considered the Treaty Clause worthy of amendment. And then– mirable dictu! a heretofore-undiscovered category of international-agreements-that-aren’t-treaties is found, and that category’s proper means of approval is found to be what the amendment would have prescribed for treaties themselves. This is not the stuff of good-faith constitutional interpretation. This is the stuff of Roosevelt-era constitutional amendments without using the amendment procedure. Not coincidentally, it resulted in a significant strengthening of executive power, because the President now has the ability to cherry-pick the procedure that is most likely to yield a favorable outcome. (Trade treaties couldn’t survive the amendability of the straight Treaty Clause power, but many other Congressional-executive-agreement agreements are military and could have.) Also not coincidentally, it resulted in a weakening of the Senate, one of the constitutional bogeymen of the era, held up as an aristocratic anachronism.

One more nail in the coffin as far as originalists and textualists are concerned should be the following: the most influential defense of the constitutionality of the agreements has come from Bruce Ackerman, and his defense has been that in 1944-46 we had one of those extra-textual “constitutional moments” that (according to his theory) result in a new constitution without the bother of formal amendments. It’s of a piece with his New Deal “constitutional moment” that originalists and textualists know to treat with grave suspicion

I wish the amendment had passed; and I’d truly hate to see my argument carry the day in court, because it would knock the U.S. out of the trade-agreement business, possibly for a long time. (I doubt that the amendment could pass today, when it would be understood as the vehicle for trade agreements.) But I can’t see either an originalist or a textualist account that says we’re constitutionally allowed to proceed as if that amendment had passed.

UPDATE: Professor Julian Ku writes in:

With respect to your recent blog posting on congressional executive agreements, I’d agree with you that the originalist/textualist case for such agreements is a bit problematic, but I don’t think it is as impossible as your post suggests.

The Constitution does recognize the existence of non-treaty agreements (the power to make “compacts” that are denied to the states without congressional approval). It is reasonable to assume the power to make these sorts of non-treaty agreements lies with the President. The hard question, of course, is whether there is a subject matter limitation on these non-treaty agreements, which were made from the Washington administration to the present, but which only recently have dealt with trade.

I would recommend to you the best originalist analysis I’ve seen, by Michael Ramsey at 77 N.C.L. Rev. 134, if you are interested. Basically, he argues that the non-treaty agreements power was understood to be held by the President, but that they could only be temporary agreements, deal with minor matters, and that they could never have domesti
c effect without congressional implementation.

This last point suggests a tenable distinction: executive agreements can be made on whatever the P. wants, but unlike treaties, they can never be self-executing. Alternatively, others have argued that treaties could extend beyond Congress’ commerce clause powers against the states, while executive agreements were limited.

I think you are right that the law is a bit iffy here, but I think there are plausible textualist or originalist arguments for non-treaty international agreements, even in the trade area, that might survive judicial review by an originalist court.

I’ll follow up and read the Ramsey article; I’m intrigued. I appreciate the reference.