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Prospective Advice and Consent

Written by  Jean Galbraith

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The Treaty Clause of the Constitution 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.”  In theory, treatymaking traditionally proceeds in three steps: First, the President or his agents negotiate and sign the treaty; second, the Senate gives its advice and consent by a two-thirds vote; and third, the President ratifies the treaty. In practice, however, the Senate has earned its reputation as the “graveyard of treaties.”  While minor treaties usually clear the Senate eventually, significant treaties—particularly multilateral ones—are often the subject of lengthy or endless delay. The Senate’s present backlog goes back decades (the oldest treaty pending before it is from 1949) and includes major treaties like the United Nations Convention on the Law of the Sea, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Stockholm Convention on Persistent Organic Pollutants.

The specter of death in the Senate in turn limits U.S. bargaining power. If other nations believe that the United States will never become a party to a multilateral treaty under negotiation, then their incentives to listen to U.S. negotiators are greatly reduced. A former Legal Adviser to the State Department has recently described this as a “real problem in treaty negotiation,” explaining that “our negotiating partners have no confidence that the executive branch will necessarily be able to get a potentially controversial treaty through the Senate. That does undermine the negotiating effectiveness of our State Department and other negotiators.”
The Senate’s failure to advise and consent to important treaties has received substantial attention from academics over the last twenty years, including contributions from Bruce Ackerman, David Golove, Laurence Tribe, John Yoo, Peter Spiro, Steve Charnovitz, and, most recently, Oona Hathaway. But these scholars have all focused on one particular issue, namely, the extent to which treaties can or should be approved as congressional-executive agreements by a majority of both houses and the President rather than through the Treaty Clause.  Little has been written about whether the Treaty Clause itself could be applied in a more efficient or effective manner.  By contrast, this Article argues that the Treaty Clause provides the President and the Senate with considerably more flexibility than the conventional wisdom suggests—flexibility that can strengthen the prospects for treatymaking under the Treaty Clause.

The Senate’s failure to advise and consent to important treaties has received substantial attention from academics over the last twenty years, including contributions from Bruce Ackerman, David Golove, Laurence Tribe, John Yoo, Peter Spiro, Steve Charnovitz, and, most recently, Oona Hathaway. But these scholars have all focused on one particular issue, namely, the extent to which treaties can or should be approved as congressional-executive agreements by a majority of both houses and the President rather than through the Treaty Clause.  Little has been written about whether the Treaty Clause itself could be applied in a more efficient or effective manner.  By contrast, this Article argues that the Treaty Clause provides the President and the Senate with considerably more flexibility than the conventional wisdom suggests—flexibility that can strengthen the prospects for treatymaking under the Treaty Clause.

Specifically, I argue that the Senate can, and in many circumstances should, give its advice and consent prior to treaties’ final negotiation, an approach that I term prospective advice and consent. The Senate would give prospective 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 then conform to these conditions, the President could ratify without further action by the Senate.

This approach would reverse the longstanding and almost entirely unquestioned presumption that the Senate’s advice and consent must follow the President’s submission of a final treaty text, an approach that I call subsequent advice and consent.  As I show, however, this presumption stems from historical practice rather than from a constitutional mandate. In the nineteenth century, this presumption made good sense: the United States entered into a sufficiently low number of international agreements that the Senate could reasonably take them up one by one; the most important agreements tended to be bilateral rather than multilateral, so renegotiation to accommodate Senate changes was more feasible; and the Senate had not then developed its practice of delaying certain treaties for decades. As the preconditions have changed, however, it is time—indeed long past time—to rethink how the Treaty Clause is applied. Prospective advice and consent could considerably improve the processing of minor treaties. For major multilateral treaties, the use of prospective advice and consent would be more challenging but also more rewarding. I argue that for many such treaties, prospective advice and consent pegged to key U.S. negotiating objectives would both further U.S. negotiating power and have greater appeal for the Senate than does the present regime of subsequent advice and consent.

 

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