Last December the Senate Foreign Relations Committee held a hearing on the President's treaty authorities, during which the Committee Chairman, Tennessee Republican Bob Corker, stated that "presidents from both parties have increasingly abused their authority to enter into and terminate binding international agreements with little input from Congress." An interesting sentiment from a Committee of jurisdiction that gaped from the bleachers while Barack Obama and John Kerry trampled Senate treaty authorities with the Iran and Paris deals.
In any event, the President's Article II constitutional authority over treaty-making is one of the most important Oval Office powers. That presidential power has been eroded since 1945. Today a Senate which does not appear to understand its own treaty-making role openly criticizes the President for exercising his. The presidency should work to overcome such pressures, and President Donald Trump's national security team is well-suited to the task.
Within the Executive Branch, the roadmap for treaty activity is known as State Department Circular 175. The Circular dates to December, 1955, when Ike was in the Oval Office and John Foster Dulles was Secretary of State. Circular 175 places the treaty work center of gravity at the State Department rather than the White House, an arrangement which, I believe, contributes to erosion of presidential control over treaty-making.
As Secretaries of State, compare John Foster Dulles with John Kerry or Hillary Clinton. Radical differences in worldview are directly reflected in State Department treaty work. Thus, new guidance is necessary to reassert presidential authority -- especially this President's authority -- over treaty-making. The White House might begin by reviewing Executive Branch treaty practice overall. That review should be led from the Executive Office of the President, not from the bureaucracy, and produce an appropriate proclamation or other vehicle to reassert presidential control.
What might such a proclamation address? First, when the Executive Branch communicates its treaty priorities to Congress, the White House should take the lead to ensure that the sitting President's treaty priorities are put first; not those of long-gone predecessors or agency bureaucracies.
Next, the White House must organize and order presidential treaty priorities itself. Highest priority should be attached to arms control, anti-terrorism, and law enforcement cooperation. The White House should also scrutinize Senate committee calendars. It should withdraw or terminate pending treaties that are unlikely to be ratified, or that conflict with presidential priorities. Review of the internal Executive Branch treaty pipeline will also identify draft treaties which should be abandoned.
On a continuing basis, the White House should swiftly and forthrightly challenge invasions of presidential treaty authority. Some of these originate within the Executive Branch itself. A case in point: assertions by current or former Executive Branch officials that, without legislative approval, the President may not terminate a treaty at any stage or pull a treaty back from Capitol Hill.
Another example of erosion is seen in a provision to be codified soon in the United States Code requiring only the Secretary of State and Attorney General -- instead of the President -- to notify Congress before allowing foreign government access to U.S. law enforcement electronic data. Removing the President from such international processes, even for laudable ends, erodes presidential authority.
A final example of an invasion of presidential authority is the pernicious notion that signed treaties which the Senate has not approved, or may even have disapproved (e.g., CTBT), impose obligations on the United States anyway. Such assertions, wherever they appear, must be rebutted.
To address this concern, also worth consideration is assignment of a "shelf life" to selected presidential treaty submissions to the Senate. This could overcome the notion (itself the offspring of an unratified treaty) that unratified half century-old treaties are relevant today because of their mere presence on a Senate committee calendar -- even if they have never had a committee hearing.
An analogy for a time-limited treaty package submission is the real-world "letter contract" routinely used in industry to begin preliminary work while a definitized contract is approved. Letter contracts are time and expenditure-limited. The President's treaty submissions could be too, using adjournment sine die of a Congress, for example, as a do-or-die deadline for congressional action.
An additional vehicle for recapturing presidential treaty authorities is the President's treaty submission package itself. The submission package conveys the treaty formally to Congress for review. It is an appropriate tool for reserving presidential authority to terminate Senate-approved treaties or to repudiate an unapproved treaty awaiting congressional review.
Have we forgotten the Senate's advice and consent role? No. But the Obama deals on Iran and climate change demonstrated that, while the Senate may anguish over presidential treaty prerogatives, it does little to defend its own. In fact, by questioning the noted deals, President Trump did more in a year to defend Senate treaty prerogatives than the Senate has done in twenty.
Since adoption of our Constitution in 1789, the ebb and flow of American treaty practice favors presidential authority, in spite of modern efforts to circumscribe it. In 2018, however, the presidential treaty prerogatives that the Framers of our Constitution would have recognized are under serious pressure. To arrest the erosion of these important prerogatives, Circular 175 must be repaired or replaced, and the President must assert his treaty authorities boldly or lose them.