FOREIGN AFFAIRS (Update)

In the last decade of the twentieth century there have been several important developments in the constitutional balance affecting U.S. foreign relations. The most conspicuous changes have involved the relative power of the Congress (especially the U.S. senate) and the President. The political weakness of President william j. clinton has permitted a resurgence of the Senate Foreign Relations Committee and a significant expansion of the Senate's role under the treaty power, with a corresponding diminution of executive authority with respect to that power. Congress has also continued to use its legislative power and appropriations power to specify details of foreign policy (maintaining a trend beginning with the Democratic Congress elected after watergate). With respect to the war powers, Clinton has continued the past practice of executive-initiated uses of military force in limited engagements where the risk of American casualties was small. However, Clinton seems to have been especially cautious in this area. He has defended executive authority under the Constitution less vigorously than his immediate predecessor, george h. w. bush. Finally, the Supreme Court has revived judicial enforcement of principles of federalism, which in turn may call into question the virtually unlimited scope (subject to the bill of rights) of the federal treaty power. The basic lines of authority among the political branches, and the near total formal supremacy of the federal government over the states in foreign affairs, continued to be well established and uncontroversial. Political controversy affects issues at the margins, but the political weakness of the Clinton administration illustrates the vulnerability of executive power to the vicissitudes of domestic politics.

The Chair of the Senate Foreign Relations Committee, Senator Jesse Helms of North Carolina, has used his influence in recent years to block important ambassadorial appointments by Clinton, most predominantly when he blocked Clinton's nominee for Ambassador to Mexico. By declining to schedule hearings on important appointments and treaties, he also forced a reorganization (and diminution in stature) of that part of the executive branch dealing with arms control and foreign economic assistance. In 1999, the Senate rejected U.S. adherance to the Comprehensive Nuclear Test Ban Treaty, which had been a central part of the Clinton foreign policy program. In addition, the Senate has asserted its power in significantly expanded ways to attach conditions to its resolutions of ratification to arms control and international human rights treaties in ways unappealing to the executive branch. For example, the Senate has attempted to assure that no U.S. domestic law will be affected by human rights treaties. By attaching extensive and detailed conditions to arms control treaties the Senate has also successfully asserted its prerogative, albeit over protests by Clinton, in four distinct areas.

Historically, the executive branch has concluded treaty amendments of a technical, administrative, or minor substantive nature, on the basis of its own constitutional authority, and has likewise adjusted treaty relations to take account of the break-up of states and state succession. In addition, the executive branch has historically exercised the prerogative of determining whether to seek required legislative support for international agreements through the Article II procedure or, alternatively, through an act of Congress. In its interaction with the Senate over adjusting two major arms control treaties, however, the Clinton administration may have contributed to the erosion of executive authority on all these points.

First, the administration agreed to submit an agreement dealing with conventional weapons in Europe—the CFE Flank Agreement—to the Senate for its approval under Article II of the Constitution, abandoning its earlier decision to seek simple legislative approval from both houses of Congress. In doing so Clinton made two conceptually distinct concessions. He first acceded to the Senate's hitherto unsupportable position that "militarily significant" agreements had to be submitted to the Senate as Article II treaties rather than to Congress as Congressional–Executive agreements. Second, he failed to preserve executive prerogative to choose which constitutional procedure—Article II or an Act of Congress—to follow. The Clinton administration's concessions were qualified but the end result was that Clinton capitulated to an assertion of Senate power that is unsupported by historical practice.

Third, the Clinton administration accepted the Senate's position that the executive cannot subsequently change "shared understandings" between the executive branch and the Senate. Clinton thereby accepted, as a correct statement of constitutional law, the "Biden Condition" that grew out of the attempt by President ronald reagan to amend the Anti-ballistic Missle (ABM) Treaty unilaterally under the guise of a "reinterpretation" of the treaty. The Biden Condition restricts the ability of the executive to change the interpretation of a treaty provision if it has made an "authoritative statement" of that provision's meaning to the Senate during the ratification process, such that there is a "shared understanding" of that meaning. The condition apparently applies even if the adjustment in interpretation of the provision is based on changed circumstances and is entirely uncontroversial. The consequence of this concession may be to restrict the future ability of the executive to adjust treaty relations in the normal course of diplomacy.

Finally, Clinton agreed to and then complied with a Senate condition that was both unrelated to the treaty under consideration and arguably unconstitutional as well. The condition in question—"Condition 9"—dealt with an agreement that would have extended obligations under the 1972 ABM Treaty to several new states, and also changed obligations under the treaty to account for the break-up of the Soviet Union. Condition 9 required the President to submit this agreement to the Senate for advice and consent. When the Senate consents to ratification of a treaty, it may without question attach conditions to its consent that relate to the treaty obligations that it accepts and, more controversially, to associated domestic matters and the domestic effect of the treaty in question. On the other hand, the Senate presumably has no authority to condition its consent on presidential action wholly unrelated to the treaty. Condition 9 fell in the middle of this spectrum in that it related to an entirely different treaty, the ABM Treaty, although that treaty also dealt with arms control and was therefore loosely related to the subject matter of the treaty to which Condition 9 was attached. The agreement also would have adjusted the operation of the ABM Treaty to take account of the breakup of the Soviet Union. Normally such matters involving the succession of states would be settled by executive agreement pursuant to the President's constitutional foreign affairs authority, but under Condition 9 this agreement must be submitted to the Senate.

The role of Congress in authorizing the use of military force has also continued to fluctuate, and the constitutional debate over the scope of congressional authority, executive prerogative, and the war power has continued as well. In defending executive power the Clinton administration has at times seemed more solicitous of Congress than prior administrations. For example, the legal opinion justifying military intervention in Haiti relied principally on arguments based on statutory authority rather than relying on generalized claims of constitutional authority as had often been done in the past. On the other hand, the President conducted an air war against Yugoslavia, and stated a willingness to use ground forces, without formal congressional authorization. Congress had indicated support for the President's policy, and the air war was crafted to minimize the risk of American casualties.

With respect to the power of Congress to declare war, recent scholarship has called into question the proposition that Congress has the ultimate power to determine whether the country will wage war or maintain peace. This proposition was based on the original intent of the Framers, which does not now seem to be so clear as it was to those who were passionately opposed to the vietnam war. The text of the Constitution gives Congress the power to "declare" war, but a declaration of war is different from making, initiating, or deciding upon war. It is different both semantically and in legal meaning. The intent of the Framers on this point is inscrutable. The sole drafting change in the relevant text at the constitutional convention was to change Congress's war power from "make" to "declare." That change by itself plainly suggests a narrowing of Congress's power. The change may have been made for a different reason, or for no substantive reason at all, but it is one that under the normal canons of legal interpretation would be given some significance. Whether the change was designed to curtail congressional power or to clarify the commander-in-chief clause depends on inferences from isolated statements that seem at best inconclusive. In the end the record consists mostly of silence from which contradictory inferences can be drawn—either that "more people would have protested if they had understood that the President was given power to initiate war," or that "initiating war was an executive power that was so ingrained in the political and legal context that the Framers just naturally assumed that the President had that power as a result of being vested with the 'executive power.' "

In addition, original intent as commonly applied is a fragile basis for interpreting the Constitution in the context of contemporary foreign relations. Terms like "war" or the "executive power" do not have meanings fixed for all time in the eighteenth century. Subsequent practice by the political branches can provide a new gloss on original intent. A good example is the Senate's role to "advise" in the making of treaties. President george washington and his successors effectively reinterpreted the original understanding to eliminate the Senate's formal role during the course of a negotiation, and the Senate has concurred for 200 years. Another example is the Framers' assumption that all treaties would be "self-executing" and applied by the courts as rules of decision, as is literally required by Article VI. Chief Justice john marshall created a category of non-self-executing treaties in the case of Foster and Elam v. Neilson (1829). Similarly the term "war," which in any event seems especially ambiguous and indeterminate, seems to have been reinterpreted over the course of two centuries. Perhaps there is a distinction between big wars and little wars, or offensive wars and defensive responses, or wars and police actions. Perhaps the use of small-scale military force for foreign policy purposes is not "war" at all. Looking at historical practice, especially since world war ii, one could conclude that the political branches have made some of those distinctions, reserving Congress's role to approving major wars in advance when such a decision was possible under the circumstances. The role of Congress in the gulf war supports this distinction. In other, minor war decisions Congress has acquiesced to presidential initiation of military action and has confined its role to influence through the authorization and appropriations process.

Even the way the debate is framed is misleading. The issue is normally described as one of reconciling Congress's so-called war power based on the declare war clause with the President's commander-in-chief power. This presentation of the issue in this way is at least incomplete, because both Congress and the President have many additional powers that bear on the question of how the use of military force must be authorized under the Constitution. In fact, Congress is intimately involved in the decisions to use military force, in focused and specific ways, through its authorization and appropriation functions. In recent years, Congress also has enhanced its role informally through the legislative process, for example in a procedure negotiated by Congress and the President for prior consultation in connection with continued authorization and appropriations for united nations Peace-keeping forces.

In the 1990s, the Supreme Court revived judicial enforcement of states ' rights and principles of federalism. These decisions may call into question the virtually unlimited scope of the treaty power (subject to the Bill of Rights) derived from missouri v. holland (1920). Treaties dealing with human rights, government procurement, environmental regulation, and criminal law raise many federalism concerns. A conspicuous manifestation of the states' disregard of federal treaty obligations is their regular failure to notify criminal defendants of their rights under consular treaties to contact their consuls. The executive branch has neither sought legislation nor taken other action to implement these obligations via-à-vis the states, and in the case of Breard v. Greene (1998), the Supreme Court declined to intervene in the execution of a Paraguayan national by the state of Virginia, even though Virginia had violated this U.S. treaty obligation, which is entitled to supremacy over state law by virtue of Article VI, and even though the International Court of Justice and the U.S. Secretary of State had requested a stay of execution pending further proceedings in the Hague. Several states have violated and continue to violate this treaty obligation, and it may be unclear under the federalism decisions of the rehnquist court whether the federal government has constitutional power to require otherwise.

Phillip R. Trimble
(2000)

Bibliography

Bradley, Curtis A. 1998 The Treaty Power and American Federalism. Michigan Law Review 97:390–461.

Henkin, Louis 1996 Foreign Affairs and the Constitution, 2nd ed. Mineolo, N.Y.: Foundation Press.

Trimble, Phillip R. 1997 The War Power Twenty-Five Years Later. UC Davis Journal of International Law and Policy 3: 183–190.

Trimble, Phillip R. and Koff, Alexander W. 1998 All Fall Down: The Treaty Power in the Clinton Administration. Berkeley Journal of International Law 16:55–70.

Yoo, John C. 1996 The Continuation of Politics By Other Means: The Original Understanding of War Powers. California Law Review 84:167–305.