Bolton and Yoo on the Treaty Power.

It didn’t take long for conservatives to rediscover limits on executive power. You’d think something—if not philosophical consistency, then at least manners—would cause them to hold off until, say, inauguration day.

In this case, it’s the wisdom of the framers—the bane of reasonable political and legal debate—that has locked the United States into a supermajority rule for treatymaking. Presidents can enter treaties only with the consent of 2/3 of the Senate. The rule is far too strict to be practical. No other major country has such a strict rule—most European countries, for example, just require a parliamentary majority. Recognizing this problem, over the years the political class of the United States and the judiciary have acquiesced in two subterfuges—the congressional-executive agreement, where consent to a treaty requires a majority of both houses, and the “pure” executive agreement, which requires merely the consent of the president, pursuant to “inherent” constitutional powers or powers delegated by Congress. A complicated set of largely political precedents govern the use of these approaches. In the past, trade treaties have usually resulted from congressional-executive agreements; military alliances and arms control agreements have involved Senate consent; and presidents have often negotiated settlements of international claims on their own. Today, the United States belongs to thousands of treaties—far more than any other country. It is far too late to complain of American being caught in a “dense web of treaties and international bureaucracies.”

This evolution made good sense. The framers, acting with little useful precedent, and acting under circumstances entirely different from those that prevail today, took a stab in the dark and missed. The problem is not just that 2/3 is a very high standard for a legislative institution; it is also that senators, unlike members of the House, do not represent equal numbers of people. As a result, senators representing a very small portion of the population—around 15 percent, I think—can block a treaty that reflects the interests of the other 85 percent. And, indeed, typically senators from rural states with small populations do the blocking.

Bolton and Yoo appear to concede that the 2/3 rule is too strong for financial and economic agreements. They just want to preserve it for agreements that touch on national security or that involve delegation to international institutions (however, that is what happens with the WTO dispute settlement mechanism). Certainly, the framers did not make such a distinction, and Bolton and Yoo do not explain why there should be different rules for different types of treaties. If the Obama administration can further erode the Senate’s role in treatymaking, this will strengthen the president’s hand. John Yoo thinks that the president has the power, and ought to have the power, to make war, control American troops, and dominate American foreign policy; if he can do all that, why shouldn’t he also have the power to make the agreements that America’s foreign policy requires?

Bolton and Yoo write as though nothing would delight the Obama administration more than “t[ying] one hand behind America’s back.” Of course, this is the John Yoo who famously (and correctly, in my view) argued that the president can unilaterally, that is, without Senate consent, withdraw the United States from treaties. It may turn out that the Obama administration will enter unwise treaties, but, at least so far, Bolton and Yoo exaggerate the difference between the Bush and Obama administrations—both of which support the Law of the Sea treaty and have agreed that the United States should submit to binding greenhouse gas limits. I expect that the Obama administration will find the old Yoo’s views about executive power more compatible with its interests than the new Yoo’s views.