Tuesday, January 06, 2009

Uh oh, I appear to agree with John Bolton and John Yoo (sort of)

In an op-ed in yesterday's NY Times , John Bolton and John Yoo made an argument that strongly echoed a 1995 Harvard Law Review article by Larry Tribe: namely, that the Constitution requires important international commitments to be adopted by 2/3 of the Senate exercising the treaty ratification power, rather than by simple majorities in both houses of Congress. (Tribe's article was a response to an article by Bruce Ackerman and David Golove, and the particular issue that separated them was whether NAFTA was invalid because not a treaty. Tribe said it was; Ackerman and Golove said it wasn't. Neither article is available free to all online but both are easily found on Westlaw, Lexis, Heinonline, or JSTOR for subscribers.) Bolton and Yoo don't exactly couch their argument as one of constitutionality, although in some of his academic work Yoo has veered in that direction.

Bolton and Yoo make two points: 1) The U.S. should be skeptical of commitments to international bodies; and 2) that skepticism should be given procedural form through the rigorous super-majority requirement of treaty ratification. In this view unilateral Presidential action or joint Presidential/Congressional action via the ordinary (simple-majority) legislative process will short-circuit the deliberation necessary to avoid unwise international commitments.

Here I want to note that this analysis is at least homologous to my analysis in a recent University of Pennsylvania Law Review article. (The article, Dynamic Incorporation of Foreign Law, is available at 107 U. Pa. L. Rev. 103 for anyone with easy access. To my amazement, it can also be purchased for $9.95 here. Presumably it will soon be available free to everyone for a limited time on the U Penn L Rev website.) In the article, I say that whenever a democratic polity agrees to be governed by decisions taken in whole or in part by another political entity, that polity sacrifices some of its self-government, at least where there are practical barriers to revocation of the agreement. Unlike Bolton and Yoo, I am not generally skeptical of such delegations, but to the extent that the sacrifice of local democratic accountability is worrisome, I--like Bolton and Yoo--propose a procedural remedy. Whereas they would require Senate ratification via the treaty process, I propose representation of the power-delegating polity in the decision-making bodies of the power-receiving entity.

It's easy to dismiss the Bolton/Yoo position through guilt by association but the problem they identify is real, and the politics of particular examples will vary. American political conservatives tend to be skeptical of delegations to international bodies, but at least in recent years, American liberals have had good reason to worry about displacement of permissive state norms (legalizing medical marijuana and physician-assisted suicide, for example) by restrictive national norms. My article (and did I say you could buy it for under $10!!!) attempts to grapple with these problems from a general perspective.

Posted by Mike Dorf


Neal said...

I confess I have not read your article.

In the international sphere, would you propose representation be equal among all parties, or should it reflect their relative strength/contribution to the overall effort?

One benefit of the supermajority route is that there is both deliberation, but also a sincere commitment after said deliberation to be bound by the itnernational agreement on an equal footing with all parties involved.

Mere representation might lead to (in the international arena) the U.S. delegating more often. This will also likely lead the country to more frequent dissatisfaction with and withdrawal from its commitments when representation alone is inadequate to achieving its interests.

egarber said...
This comment has been removed by the author.
egarber said...

So help me understand exactly what we're talking about:

1. The U.S. enters a binding arms control agreement, taking orders from an international arms reduction tribunal.

take: Ok, this is quite obviously a treaty that would be worrisome if passed via a Congressional-Executive (mere majority) agreement.

2. A group of senators visits Europe and comes back with a whole bunch of ideas on a cap and trade emissions system.

take: this would seem to just be a law -- ideas can come from anywhere.

3. The U.S. agrees with country X to get together every year to brainstorm about joint military option ideas -- the formal outcome of that process must then face a straight-up vote in Congress.

take: is the resulting congressional action a "treaty" in the Dorf / Tribe / Yoo sense that should trigger concern, or a simple law?

Michael C. Dorf said...

Good questions.

Neal: My article is in spirit with the Bolton/Yoo position to the extent that I agree that delegations to external bodies should not be undertaken lightly. Although it is not a point I discuss in the article, I disagree with them, and with Tribe, in their insistence on the treaty process, mostly because I do not think there is a manageable judicial test for what is a fit subject for a treaty. Bolton and Yoo in particular seem to reject the last 60-some-odd years of international law, which says that how a nation treats its own people can be a legitimate concern of treaty (and other international) law. But to the extent that Bolton and Yoo (as opposed to Tribe) are merely saying it would be a good idea for political actors to deliberate seriously about these delegations, and that the treaty mechanism assures such deliberation, I don't disagree.


To be clear, I don't think that Congress must use the treaty process for any of these matters. The most troubling example is 1, but that doesn't differ substantially from NAFTA. The delegation may be problematic because it gives away too much power going forward but that will be true regardless of whether it's accomplished via statute or treaty.

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Unknown said...

for citing accuracy: 157 U. Pa. L. Rev. 103

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