The Treaty Clause in the US constitution has been a major area of debate both in the public and academic sphere. The clause defines the powers of the executive or president and the senate in the treaty-making process. The executive is given unlimited power to engage in treaty making with other parties without interference from the Congress. The senate’s role on the other hand is to either consent to or reject the treaty while providing advice. It however remains a debate as to whether the senate should play a greater role in this process beyond its current function. This paper reviews articles and presents various perspectives on this issue.
Glennon provides a unique perspective on the role of the senate in ratification. The author argues that before treaties are signed to become the supreme law of the country, they should go through the same process as other laws being passed in the senate (Glennon 257). This way, it would be easy to identify errors in the proposed treaty and even make them repealable by following the same process. What may seem good bargain to diplomats negotiating at a round table may look different to legislators who are the representatives of constituents, and that is why their participation is necessary. Glennon insists that such laws or treaties need to reflect shared expectations of Americans and the other parties (258).
Such a process would certainly ensure that various branches of the government and institutions participate in the formulation of the treaty thereby strengthening national consensus on the terms of the treaty. It would also help avoid unpopular foreign policies which could result in mistrust between the national government and other governments due to perceived diplomatic deception.
In 1976 for example, the senate’s declarations on the Treaty of Friendship and Cooperation between the US government and the government of Spain had to be submitted separately. This is after the government of Spain had refused to ratify it because they were not comfortable with those declarations. Glennon argues that this should not be the case because there are questions as to whether amendments, reservations, and/or conditions made by the senate and submitted separately would be binding on the other party.
Glennon argues that it is important that the senate’s conditions, amendments, and/or reservations be included in the instrument of ratification rather than being submitted separately. This is necessary to ensure that the treaty reflects the expectations of both nations that enter the treaty as regards each party’s rights and obligations enforced by the treaty. Glennon therefore opposes the provision that allows the president to look at the substance added by the senate and decide whether to incorporate it into the instrument of ratification or not even after the senate has consented to the treaty on condition that the added material to be submitted with the instrument of ratification.
Such a requirement should therefore be based on the constitution so that each condition adopted by the senate “would be applicable to the treaty before it and have a plausible relation to its adoption” (Glennon 263). Without this requirement being founded on the constitution, inclusion of the senate’s conditions would have to depend on the other party’s discretion. This means that should the other party reject these conditions, as was the case in the 1976 Treaty of Friendship and Cooperation, then the senate’s conditions have “no effect, both domestically and internationally” (Glennon 263). This often forces the US government to place a counteroffer to the other party to persuade them to accept the senate’s conditions.
Glennon also notes that the senate sometimes prefers to apply reservation rather than amendment of treaty resolution because it is more diplomatic and the government would easily accept reservations (265). However, Auerswald and Maltzman argue that conservative senators together with key senators systematically make use of this right to limit the president’s autonomy in the way he manages foreign affairs (1098).
This because ratification reservations determines how the government interprets and implements a treaty as well as how it behaves on unrelated foreign policy issues. In some cases, it can even “change the actual text of a treaty” (Auerswald and Maltzman 1106). Auerswald and Maltzman observe that the president has a high degree of autonomy as regards foreign policy to the extent that he can “confront the senate with the either-or choice of accepting or rejecting treaties” (1097). “This autonomy reflects a combination of congressional deference (or indifference) to the president on foreign policy issues and constitutional provisions” that give the president significant autonomy to make foreign policy decisions (Auerswald and Maltzman 1097).
The president requires just two-thirds of the senate to agree to his policy preference and after the senate consents to the policy he may choose to ignore the senate’s advice or conditions as was also noted by Glennon (261). Auerswald and Maltzman agree with Glennon’s view that the senate’s role should not be limited to just consenting or rejecting a treaty. Instead, the senate should have authority to change foreign policy in fundamental ways during the senate’s treaty advice and consent process. This is why the senate often attaches policy initiatives through reservations to treaty ratification instruments.
Based on the Supreme Court ruling in U.S. v. Stuart [109 S. Ct. 1183(1983)], reservations enable the senate ensure that the conditions enforced through reservations are not subjected “to short-term changes in executive or congressional preferences” (Auerswald and Maltzman 1098). As such, the senate can always protect their preferred policies through reservations. Auerswald and Maltzman concluded in their study that reservations gives the senate the capacity to avoid just consenting to the negotiated terms by the executive arm of the government just as they are or rejecting the treating as a whole (1106).
In other words, the senate avoids “the either-or choice that is implicit in the constitution” (Auerswald and Maltzman 1106). Auerswald and Maltzman found that this is especially so when the treaty involves issues related to national security and sovereignty, in which the pivotal senator is highly likely to oppose the president’s preferences and the senate preferences are highly likely to result in hostility to international agreements. Treaties related to economic issues or international norms were also found to be likely to have reservations attached to them.
Block, Casey, and Rivkin on their part argue that explicit separation of powers between the executive or president and the senate over treaty-making is necessary. Just like Gennon and Auerswald and Maltzman, Block et al. also note the assumption that treaty-making power is shared by the president and the senate is technically wrong because the senate only has advice and consent function. For example, the power to interpret treaties once ratified is exclusively vested in the president as per Article II, Section 1 of the Constitution which gives the president plenary authority to represent the nation and to pursue its interests outside its borders (Block et al. 1483).
The reason why treaty-making power was invested in the president or the executive is because the “legislature is not always being and is usually, and is too slow for the dispatch requisite to execution” (Block et al. 1484). Plus, it is believed that it may be possible to take the shortest time possible to legislative laws that provide for all accidents as well as necessities that address all the concerns of the public.
According to Love, the Congress lacks expertise needed to engage effectively in foreign relations (486). This is why the president or the executive is given unrestricted role in the conditional negotiation of treaties while the senate can only recommend modifications (referred in the constitution as “advice”) or refuse to assent (referred in the constitution as “consent”) (Block et al. 1485). The president does not even need to consult with the senate before treaty-formation. This way, the secrecy of sensitive negotiations is protected and the obvious delays associated with long drawn debates in the senate are avoided (Block et al. 1486).
The senate can conditionally approve treaties by recommending or advancing amendments (advice). Even if the senate attaches its understanding of the treaty document, it only means that the senate has given its consent or approval to the treaty on the basis of the specific understanding. It is the president who is to decide, based on international law, whether or not the treaty can be interpreted in line with the senate’s understanding and therefore include that understanding in the instrument of ratification or not to include it (Block et al. 1487). However, the other party involved in the treaty has to review the senate’s understanding and decide whether to accept or reject the senate’s understanding. This also happens to reservations submitted by the senate.
According to Block et al., during the implementation of a treaty the executive has to make interpretations that are in accordance with the senate’s “understanding as expressed in their resolution of advice and consent and as accepted by the other treaty party” (1491). This position is supported by Biden and Ritch who express that the Reagan administration erred by reinterpreting the terms of the Anti-Ballistic Missile Treaty of 1972 (ABM Treaty) (1531).
At the time, the Reagan Administration’s legal advisor, Abraham Sofaer, argued that while interpreting and implementing a treaty, the president can decide to “ignore much of what the Executive Branch had told the senate in obtaining its consent to ratify the treaty” (Biden and Ritch 1533). In a way, Abraham Sofaer had fronted “a premise that senate is not an integral part of establishing the meaning of treaty under the US constitutional law” (Biden and Ritch 1539), which is inconsistent with the US treaty-making process.
In response, the senate factually dismissed this claim and legally blocked the executive branch from reinterpreting the treaty. This affirms the constitutional position that the president, in his implementation of a treaty, cannot reinterpret it in ways that contravene the senate’s resolution of advice and consent and as the treaty was accepted by the other party in the treaty (Block et al. 1491). Otherwise if the president were to reinterpret a treaty, then this would mean that he can unilaterally and fundamentally change that treaty with the senate offering its advice and consent, which contravenes the constitution. In fact, this amounts to deliberate abuse of the constitution’s treaty power (Biden and Ritch 1535).
Biden and Ritch also argue that such behavior by the president or an executive branch shows lack of honesty to the other party involved in the treaty. The executive, according to Biden and Ritch, must always “honor the interpretation shared by the executive and the senate at the time of ratification” (1536).
In presenting his arguments, Sofaer claimed that the proceedings preceding the ratification of the ABM Treaty supported the Reagan Administration’s reinterpretation of the treaty (Biden and Ritch 1532). This forced the Senate Committee on Foreign Relations to require the executive to provide it with the full negotiating record so that they could review it and determine the validity of the claim. Perhaps this shows why the senate should always have access to the negotiating record during the advice and consent process. Love emphasizes that the Senate Committee on Foreign Relations should always have access to the negotiating record; at least the relevant negotiating record (483).
The author acknowledges that it may not be necessary to have complete negotiating record; however, access to the relevant portions makes it possible for the Committee to determine provisions in the proposed treaty that are ambiguous and are therefore subject to misinterpretation. According to Love, this would also help avoid disputes between the executive and the senate over access to negotiating records being taken to courts (486).
The articles reviewed in this study have provided a clear definition of the role of the senate in treaty-making. The studies generally agree that the role of the senate in the treaty-making process is to offer advice and consent. They do not have explicit power to alter the terms of a treaty but can do so through reservations, amendments, conditions, and understanding. Since amendments, conditions, as well as understanding are always likely to be submitted separately, the senate prefers to use reservations which ensures that the executive does not change the conditions enforced through reservations.
Auerswald, David and Maltzman Forrest. “Policymaking through Advice and Consent: Treaty Consideration by the United States Senate.” Journal of Politics 65.4 (2003): 1097-1110.
Biden, Joseph R. and Ritch John B. “The Treaty Power: Upholding a Constitutional Partnership.” University of Pennsylvania Law Review 137.5 (1989): 1529-1557.
Block, Lawrence J., Casey Lee A. and Rivkin David B. “The Senate’s Pie-in-the-Sky Treaty Interpretation: Power and the Quest for Legislative Supremacy.” University of Pennsylvania Law Review 137.5 (1989): 1481-1509.
Glennon, Michael J. “The Senate Role in Treaty Ratification.” The American Journal of International Law 77.2 (1983): 257-280.
Love, John. “On the Record: Why the Senate Should have Access to Treaty Negotiating documents.” Columbia Law Review 113.2 (2013): 483-529.