Jean Galbraith

The Runaway Presidential Power over Diplomacy

The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. These are just a few of many examples from recent years. The President’s assertedly exclusive powers over diplomacy have become a powerful yet rarely critiqued tool for withholding information from Congress and for rebuffing congressional supervision over the content and agents of international engagement.

This Article interrogates the constitutional concept of “diplomacy”—a word that, for all the emphasis the executive branch now puts upon it, was barely an English word at the time of the Framing and was not used during the Constitution’s drafting and ratification. Both structural reasoning and historical practice suggest that exclusive presidential powers over diplomacy should have a narrower ambit than executive branch lawyers currently claim. The Article excavates several forgotten limits on these powers. One is the distinction between policy and negotiation. The executive branch asserts exclusive power over both, but Congress has strong counterclaims to a constitutional power to establish policy objectives and to control outputs, such as votes in international organizations. Another limit relates to domestic-facing administrative agencies, which increasingly engage in regulatory coordination abroad. Both Congress’s traditional role in supervising agencies and the substance of these agencies’ work suggest that their international engagement should not necessarily partake of whatever exclusive powers the President holds over diplomacy and instead should be more subject to congressional control. The Article closes by proposing a distribution of power over international engagement that provides more control to Congress and by identifying institutional strategies that Congress could deploy to achieve this distribution.

Introduction

A core assumption of the executive branch is that the President possesses exclusive constitutional powers with respect to diplomacy. The White House and the Department of Justice routinely invoke these asserted powers to rebuff congressional interventions in foreign affairs. In 2020, for example, the Trump administration declared that Congress cannot specify that “[i]t is the policy of the United States” to help foreign allies combat corruption; cannot require the executive branch to give it notice prior from withdrawing from an important arms-monitoring treaty; and cannot require the Secretary of Commerce to provide Congress with a report on its use of statutorily delegated authority with respect to tariffs.1 1.Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Eliot Engel, Chairman of the H. Comm. on Foreign Affs., and Maxine Waters, Chairwoman of the H. Comm. on Fin. Servs. Regarding H.R. 3843, at 1 (May 18, 2020), https://www.justice.gov/ola/page/file/1277331/download [https://perma.cc/J7UP-9LEU]; Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. __, slip op. at 10–12 (2020), https://www.justice.gov/olc/file/1348136/download [https://perma.cc/5HEZ-3V9D] [hereinafter OLC Opinion of Sept. 22, 2020]; Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C. __, slip op. at 1–2 (2020), https://www.justice.gov/‌olc/opinion/file/1236426/download [https://perma.cc/PQ6K-DY3D] [hereinafter OLC Opinion of Jan. 17, 2020].Show More For executive branch lawyers, the “President’s exclusive prerogatives in conducting the Nation’s diplomatic relations are grounded in both the Constitution’s system for the formulation of foreign policy, including the presidential powers set forth in Article II of the Constitution, and in the President’s acknowledged preeminent role in the realm of foreign relations throughout the Nation’s history.”2 2.Prohibition of Spending for Engagement of the Off. of Sci. & Tech. Pol’y with China, 35 Op. O.L.C. 116, 120 (2011) [hereinafter OLC Opinion of Sept. 19, 2011]; see also, e.g., Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., to Jeb Hensarling, Chairman of the H. Comm. on Fin. Servs. Regarding H.R. 4537, at 1 (Mar. 5, 2018) https://www.justice.gov/ola/page/file/1041156/download [https://perma.cc/L3PW-4KYK] [hereinafter DOJ Letter of Mar. 5, 2018] (quoting this language).Show More

These sweeping claims fit poorly with our broader constitutional framework. As Justice Jackson famously instructed, assertions of exclusive presidential power “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”3 3.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring).Show More Yet the exclusive diplomatic powers claimed by the President have gone largely unexamined. With the exception of one recent decision focused on the power to recognize foreign nations, the Supreme Court has not confronted these issues.4 4.Zivotofsky v. Kerry, 576 U.S. 1, 32 (2015) (holding that the President has the exclusive constitutional power to recognize foreign nations but emphasizing the limited nature of this holding); see also infra Subsection I.A.2 (discussing the implications of Zivotofsky for the allocation of the diplomatic powers more generally).Show More Among scholars as well, the diplomatic powers occupy a distant back seat to two other major constitutional powers in the field of foreign relations law: the war powers and the treaty powers.5 5.The approach taken in the two major foreign relations law casebooks is illustrative of the field’s neglect of the diplomatic powers. Both casebooks have voluminous chapters devoted to the treaty powers and the war powers, but neither has even a sub-chapter focused on the diplomatic powers. See Curtis A. Bradley, Ashley Deeks & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials, at xi–xviii (7th ed. 2020) (devoting more than 260 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents); Sean D. Murphy, Edward T. Swaine & Ingrid Wuerth, U.S. Foreign Relations Law: Cases, Materials, and Practice Exercises, at xi–xix (5th ed. 2018) (devoting more than 330 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents). Even where the concept of diplomacy is emphasized in general treatises, as in Michael Glennon’s work, there is surprisingly little discussion of the constitutional distribution of the diplomatic powers, as distinct from war powers and treaty powers. See generally Michael J. Glennon, Constitutional Diplomacy (1990). An exception in substantial alignment with the executive branch positions described in this Article is H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Essay in Constitutional Interpretation 152–54 (2002) (giving detailed treatment to the President’s power over recognition, negotiation, and diplomatic information in addition to considering other areas of foreign relations law).Show More While countless articles explore these two domains, there is relatively little scholarship on the diplomatic powers.6 6.For a few excellent pieces focused on aspects of the diplomatic powers, see generally Ryan M. Scoville, Ad Hoc Diplomats, 68 Duke L.J. 907 (2019) [hereinafter Scoville, Ad Hoc Diplomats] (discussing executive branch justifications for the use of non-Senate-confirmed diplomats); Kristina Daugirdas, Congress Underestimated: The Case of the World Bank, 107 Am. J. Int’l L. 517, 519–20 (2013) (describing the historic responsiveness of the Department of the Treasury to congressional directives regarding U.S. participation in the World Bank); Robert J. Reinstein, Is the President’s Recognition Power Exclusive?, 86 Temple L. Rev. 1 (2013) (analyzing historical practice with respect to executive branch claims of an exclusive power to recognize foreign nations); Ryan M. Scoville, Legislative Diplomacy, 112 Mich. L. Rev. 331 (2012) [hereinafter Scoville, Legislative Diplomacy] (assessing the extent to which members of Congress engage in diplomatic activity). This Article draws on the insights of these scholars in providing an overarching description of the diplomatic powers claimed by the executive branch and showing that most of these claims rest on problematic constitutional foundations. One interesting recent article that grapples briefly but significantly with the scope of the exclusive diplomatic powers is Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357 (2018). Price suggests that Congress should be able to control the conduct of diplomacy through the appropriations power in certain resource-dependent contexts. See id. at 449–61.Show More This remains true even as the executive branch has come over time, especially since the late 1980s, to invoke these assertedly exclusive powers more widely, stridently, and meaningfully.

The first task of this Article, therefore, is to provide a comprehensive account of exclusive diplomatic powers claimed by the President. Simply put, the scope of these asserted powers is breathtaking. When executive branch lawyers speak of exclusive power over “diplomacy,” they are actually sweeping together a bundle of five discrete powers. These are: the power to represent the United States abroad; the power to recognize foreign nations; the power to determine the content of diplomatic communications; the power to select the agents of diplomacy; and the power to control access to diplomatic information. Each of these powers has its own constitutional pedigree and implicates different institutional values. The first two of these powers are well-established but narrow, while the latter three are deeply contested and dangerously broad. The exclusive power asserted over content, for example, is routinely claimed to encompass total control over the “time, scope, and objectives” of negotiations.7 7.Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Ronald Reagan Presidential Libr. & Museum (Dec. 22, 1987), https://www.reaganlibrary.gov/archives/speech/statement-signing-foreign-relations-authorization-act-fiscal-years-1988-and-1989 [https://perma.cc/Y33S-2EGX] [hereinafter Reagan 1987 Signing Statement]; see also, e.g., Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Ed Royce, Chairman of the H. Comm. on Foreign Affs. Regarding H.R. 5819, at 2 (Oct. 19, 2018), https://www.justice.gov/‌ola/page/‌file/1159456/download [https://perma.cc/F2DL-8G3E](using similar language).Show More And it reaches not just talk but also actions, such as the casting of U.S. votes within international organizations. When Congress issues mandates that run counter to these claims of exclusive executive power, the executive branch simply needs to get a legal opinion from the Department of Justice’s Office of Legal Counsel (“OLC”) to have its way.

Further underlying all claims of the “President’s exclusive power to conduct diplomacy”8 8.OLC Opinion of Sept. 19, 2011, supra note 2, at 116.Show More is an exceptionally capacious conception of “diplomacy.” Whether the subject is war or science, whether the forum is an international organization or a bilateral meeting, whether the executive branch officials involved are traditional diplomats or insurance regulators—all is “diplomacy” to the executive branch and therefore not subject to congressional control.9 9.E.g., DOJ Letter of Mar. 5, 2018, supra note 2, at 2 (asserting that exclusive presidential powers over diplomacy rendered unconstitutional almost every section of a proposed congressional bill regarding the participation of Department of Treasury officials at an international standard-setting organization focused on the regulation of the insurance industry).Show More As OLC has put it in finding that Congress cannot prevent a technology-focused agency from negotiating with Chinese counterparts, “We have described the President’s authority over international negotiations as extending to any subject that has bearing on the national interest.”10 10.OLC Opinion of Sept. 19, 2011, supra note 2, at 121–22 (quotation marks and citations omitted).Show More

This panoramic conception of “diplomacy” greatly expands the already substantial executive branch powers claimed over diplomatic content, agents, and information. Yet as this Article shows in its second overall contribution, this conception is far from constitutionally foreordained. Indeed, the word “diplomacy” itself was barely an English word at the time of the Framing and does not appear to have been used at all during the many debates surrounding the Constitution’s drafting and ratification.11 11.See infra note 100 and accompanying text.Show More Rather, at that time, there was at most a sense that the President had certain constitutional prerogatives with respect to the negotiation of treaties, which in turn would ultimately require the advice and consent of the Senate. And as the United States came over time to engage in many forms of international engagement other than treaties, Congress left most management with the executive branch but periodically claimed control over aspects of this engagement.

In particular, I identify four ways in which Congress has asserted control in the past over aspects of U.S. international engagement in ways that undermine the broad view of “diplomacy” adopted by today’s executive branch lawyers. These four ways can be thought of as lost limits on exclusive presidential power over diplomacy. These limits are in addition to the very important power of Congress to control the implementation (or non-implementation) of most U.S. commitments as a matter of domestic policy—a power which the executive branch continues to acknowledge as belonging to Congress.12 12.For a discussion of the power over implementation, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1707–10 (2017).Show More One limit was structural: to view the President as having exclusive power over the process of negotiation and the specific instructions given to negotiators, but to consider Congress entitled if it wished to form foreign policy objectives on the front end and to control acts with international legal significance at the back end. A second limit was content-based: to define “diplomacy” as encompassing only issues involving certain subject matters or above certain thresholds of importance. A third limit was institutional: to exclude domestically focused agencies from the ambit of “diplomacy,” such that Congress could exercise its usual level of control with respect to their activities abroad and with respect to how they interfaced with other executive branch actors regarding international engagement. A fourth limit developed from the rise of international organizations, as Congress initially claimed and exerted greater control as a price for supporting U.S. entry and participation in these organizations.

This nuanced and complex history has no place in OLC’s current approach to the diplomatic powers. Rather, by selectively invoking early sources and reading them out of context, OLC gives the impression that the exclusivity of the whole bundle of the President’s diplomatic powers is longstanding, firmly settled, and plainly applicable to all forms of modern foreign relations. The Trump administration took this perspective to its logical extreme, repeatedly invoking diplomatic powers in letters objecting to draft bills and in several important refusals to obey congressional mandates.13 13.See Jean Galbraith and Benjamin Schwartz, The Trump Administration and Executive Power: Evidence from Justice Department Views Letters, Lawfare (Feb. 5, 2019), https://www.lawfareblog.com/trump-administration-and-executive-power-evidence-justice-department-views-letters [https://perma.cc/M2LK-TAB4] (noting that in the first two years of the Trump administration, the Department of Justice sent fifteen letters to Congress raising objections to draft legislation as intruding on the president’s diplomatic powers); OLC Opinion of Sept. 22, 2020, supra note 1, at 2 (invoking the diplomatic powers as a basis for refusing to obey a congressional mandate with respect to treaty withdrawal); OLC Opinion of Jan. 17, 2020, supra note 1, at 1–2 (invoking the diplomatic powers as a basis for refusing to obey a congressional reporting requirement).Show More Yet while the Trump administration was unusually truculent, its understanding of the diplomatic powers flowed from OLC memoranda written during both Democratic and Republican administrations of the prior few decades that overread sources, ignored historical practice at odds with their positions, and failed to grapple with the profound changes in U.S. international engagement from the time of the Framing to the present.

Given the thin foundations of executive branch claims, congressional power over international engagement is ripe for reinvigoration. The final goal of this Article is to consider how such reinvigoration could be accomplished. This is not an easy avenue of inquiry, and it does not lend itself to any very satisfying solution. Doctrinally, I argue in favor of an intermediate approach between the extreme positions staked out by the executive branch and an alternative of complete congressional supremacy. There are a number of possible ways to accomplish this, and I offer some suggestions in the spirit of opening bids. Specifically, I suggest using two of the lost limits on “diplomacy” to achieve a more tempered balance—limits that draw on historical practice, respond to functional changes in U.S. foreign relations since the Framing, and emphasize the core structural concept of checks and balances. The first is to acknowledge congressional power to set policy objectives at the front end and to mandate certain outcomes at the back end (such as votes cast in international organizations) for negotiations whose outcomes will not otherwise be brought to the Senate or Congress for approval. The second is to treat congressional supremacy over domestic-focused agencies as constant with respect to both the domestic and foreign activities of these agencies. The use of these limits would rein in the risks of runaway presidential power over the content, agents, and information associated with U.S. international engagement.

Especially in the last thirty years, the executive branch has used its institutional power to make constitutional fictions about diplomacy into practical realities. For Congress to regain constitutional clout, it must bring its own institutional power to bear. The groundwork has already been laid by Congress’s repeated willingness to enact statutory provisions asserting control over diplomacy. The challenge for Congress is in getting the executive branch to recognize these provisions as binding as a matter of constitutional law. Broadly speaking, Congress can pursue three strategies towards this end. First, congressional committees can develop their own accounts of the constitutional allocation of the diplomatic powers through hearings and reports. Second, Congress can raise the stakes of executive branch non-compliance through legislative tactics, such as anti-severability provisions that require the executive branch to obey mandates whose constitutionality it questions if it wishes to continue to receive related appropriations. Third, Congress can seek to involve the courts. This last strategy has both the highest risks and rewards and therefore should be pursued with particular care.

I focus in this Article on the distribution of constitutional power with respect to diplomacy, broadly defined. But the account given here contributes more generally to the literature regarding the separation of powers. One contribution goes to the existing literature on the role of OLC. The findings in this Article support those that view OLC as an enabler of exclusive presidential power—and further suggest that the very transparency with which OLC expresses its views helps rather than hinders this enabling. Another contribution is to complicate some core assumptions about the role that historical practice plays in separation-of-powers disputes. While historical practice is often thought to be a tool of presidential power, it is notable how much historical practice there is—albeit uncited by OLC—that supports Congress’s authority to issue mandates with respect to international engagement. This suggests that, as a structural matter, historical practice may favor findings that Congress and the President have concurrent powers rather than findings that either branch has exclusive powers. Finally, this Article serves as a reminder of how much work needs to be done at the intersection of foreign relations law and administrative law. Tropes like “diplomacy” conceal complex questions about the allocation of powers in a world in which there is no robust divide between what is foreign and what is domestic.

The rest of this Article follows the path described above. Part I categorizes the diplomatic powers into five discrete powers—power over representation, recognition, content, agents, and information. Although Congress disputes the executive branch’s claims to exclusive powers over the last three of these powers, the executive branch has institutional advantages that enable it to disregard congressional mandates. Part II shows that OLC has supplemented the breadth that comes with these five powers with depth—by defining “diplomacy” far more broadly than is warranted by evidence from the time of the Framing, historical practice, or structural constitutional principles. It identifies four lost limits on the constitutional concept of “diplomacy,” of which one is structural, one is based in subject matter, one is institutional, and one is tied to the special status of international organizations. Part III proposes a doctrinal allocation that provides more control to Congress and identifies institutional strategies that Congress could deploy to achieve this distribution. It also notes several broader implications that this Article holds for the study of the separation of powers.

This Article focuses on the constitutional conflict between Congress and the Presidency with respect to control over diplomacy. With this focus come inevitable limitations, two of which deserve specific mention. First, some of the power struggles described here—particularly regarding control over agents and information—are entwined with broader constitutional questions about the extent to which Congress can control the structure of the executive branch and demand information from it. I do not address these questions, but rather focus on the extent to which power struggles relating to control over international engagement do or should differ from the broader baseline, whatever it is. The second limitation is that I focus on legal claims rather than on policy outcomes. It is possible and indeed often the case that the executive branch will object on principle to a legislative provision related to diplomacy even where it is either in full agreement with the policy set forth in this provision—or willing to adhere to this policy in practice to placate members of Congress. But while these factors reduce the practical effect of constitutional disagreements, they are not full substitutes for the constitutional allocation of control. One of the many grim lessons left over from the Trump administration is that law rather than norms can be the only boundary between action and constraint.

  1. Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Eliot Engel, Chairman of the H. Comm. on Foreign Affs., and Maxine Waters, Chairwoman of the H. Comm. on Fin. Servs. Regarding H.R. 3843, at 1 (May 18, 2020), https://www.justice.gov/ola/page/file/1277331/download [https://perma.cc/J7UP-9LEU]; Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. __, slip op. at 10–12 (2020), https://www.justice.gov/olc/file/1348136/download [https://perma.cc/5HEZ-3V9D] [hereinafter OLC Opinion of Sept. 22, 2020]; Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C. __, slip op. at 1–2 (2020), https://www.justice.gov/‌olc/opinion/file/1236426/download [https://perma.cc/PQ6K-DY3D] [hereinafter OLC Opinion of Jan. 17, 2020]. ↑
  2. Prohibition of Spending for Engagement of the Off. of Sci. & Tech. Pol’y with China, 35 Op. O.L.C. 116, 120 (2011) [hereinafter OLC Opinion of Sept. 19, 2011]; see also, e.g., Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., to Jeb Hensarling, Chairman of the H. Comm. on Fin. Servs. Regarding H.R. 4537, at 1 (Mar. 5, 2018) https://www.justice.gov/ola/page/file/1041156/download [https://perma.cc/L3PW-4KYK] [hereinafter DOJ Letter of Mar. 5, 2018] (quoting this language). ↑
  3. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring). ↑
  4. Zivotofsky v. Kerry, 576 U.S. 1, 32 (2015) (holding that the President has the exclusive constitutional power to recognize foreign nations but emphasizing the limited nature of this holding); see also infra Subsection I.A.2 (discussing the implications of Zivotofsky for the allocation of the diplomatic powers more generally). ↑
  5. The approach taken in the two major foreign relations law casebooks is illustrative of the field’s neglect of the diplomatic powers. Both casebooks have voluminous chapters devoted to the treaty powers and the war powers, but neither has even a sub-chapter focused on the diplomatic powers. See Curtis A. Bradley, Ashley Deeks & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials, at xi–xviii (7th ed. 2020) (devoting more than 260 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents); Sean D. Murphy, Edward T. Swaine & Ingrid Wuerth, U.S. Foreign Relations Law: Cases, Materials, and Practice Exercises, at xi–xix (5th ed. 2018) (devoting more than 330 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents). Even where the concept of diplomacy is emphasized in general treatises, as in Michael Glennon’s work, there is surprisingly little discussion of the constitutional distribution of the diplomatic powers, as distinct from war powers and treaty powers. See generally Michael J. Glennon, Constitutional Diplomacy (1990). An exception in substantial alignment with the executive branch positions described in this Article is H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Essay in Constitutional Interpretation 152–54
    (2002)

    (giving detailed treatment to the President’s power over recognition, negotiation, and diplomatic information in addition to considering other areas of foreign relations law). ↑

  6. For a few excellent pieces focused on aspects of the diplomatic powers, see generally Ryan M. Scoville, Ad Hoc Diplomats, 68 Duke L.J
    .

    907 (2019) [hereinafter Scoville, Ad Hoc Diplomats] (discussing executive branch justifications for the use of non-Senate-confirmed diplomats); Kristina Daugirdas, Congress Underestimated: The Case of the World Bank, 107 Am. J. Int’l L. 517, 519–20 (2013) (describing the historic responsiveness of the Department of the Treasury to congressional directives regarding U.S. participation in the World Bank); Robert J. Reinstein, Is the President’s Recognition Power Exclusive?, 86 Temple L. Rev. 1 (2013) (analyzing historical practice with respect to executive branch claims of an exclusive power to recognize foreign nations); Ryan M. Scoville, Legislative Diplomacy, 112 Mich. L. Rev. 331 (2012) [hereinafter Scoville, Legislative Diplomacy] (assessing the extent to which members of Congress engage in diplomatic activity). This Article draws on the insights of these scholars in providing an overarching description of the diplomatic powers claimed by the executive branch and showing that most of these claims rest on problematic constitutional foundations. One interesting recent article that grapples briefly but significantly with the scope of the exclusive diplomatic powers is Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357 (2018). Price suggests that Congress should be able to control the conduct of diplomacy through the appropriations power in certain resource-dependent contexts. See id. at 449–61. ↑

  7. Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Ronald Reagan Presidential Libr. & Museum (Dec. 22, 1987), https://www.reaganlibrary.gov/archives/speech/statement-signing-foreign-relations-authorization-act-fiscal-years-1988-and-1989 [https://perma.cc/Y33S-2EGX] [hereinafter Reagan 1987 Signing Statement]; see also, e.g., Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Ed Royce, Chairman of the H. Comm. on Foreign Affs. Regarding H.R. 5819, at 2 (Oct. 19, 2018), https://www.justice.gov/‌ola/page/‌file/1159456/download [https://perma.cc/F2DL-8G3E] (using similar language). ↑
  8. OLC Opinion of Sept. 19, 2011, supra note 2, at 116. ↑
  9. E.g., DOJ Letter of Mar. 5, 2018, supra note 2, at 2 (asserting that exclusive presidential powers over diplomacy rendered unconstitutional almost every section of a proposed congressional bill regarding the participation of Department of Treasury officials at an international standard-setting organization focused on the regulation of the insurance industry). ↑
  10. OLC Opinion of Sept. 19, 2011, supra note 2, at 121–22 (quotation marks and citations omitted). ↑
  11. See infra note 100 and accompanying text. ↑
  12. For a discussion of the power over implementation, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1707–10 (2017). ↑

  13. See Jean Galbraith and Benjamin Schwartz, The Trump Administration and Executive Power: Evidence from Justice Department Views Letters, Lawfare (Feb. 5, 2019), https://www.lawfareblog.com/trump-administration-and-executive-power-evidence-justice-department-views-letters [https://perma.cc/M2LK-TAB4] (noting that in the first two years of the Trump administration, the Department of Justice sent fifteen letters to Congress raising objections to draft legislation as intruding on the president’s diplomatic powers); OLC Opinion of Sept. 22, 2020, supra note 1, at 2 (invoking the diplomatic powers as a basis for refusing to obey a congressional mandate with respect to treaty withdrawal); OLC Opinion of Jan. 17, 2020, supra note 1, at 1–2 (invoking the diplomatic powers as a basis for refusing to obey a congressional reporting requirement). ↑

Rejoining Treaties

Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal is consistent with international law. This Article considers a further question that to date is deeply underexplored. This is: does the original Senate resolution of advice and consent to a treaty remain effective even after a President has withdrawn the United States from a treaty? I argue that the answer to this question is yes, except in certain limited circumstances. This answer in turn has important consequences. It means that, as a matter of U.S. domestic law, a future President can rejoin treaties without needing to return to the Senate for advice and consent. The Article concludes by situating this claim within a broader account of the distribution of foreign affairs powers.

Introduction

This Article focuses on a single doctrinal question: what domestic legal process is necessary for the United States to rejoin a treaty from which it has been unilaterally withdrawn by the President? More specifically, may a President seeking to rejoin a treaty do so in reliance of the original resolution of advice and consent passed by the Senate, or must he or she return to the Senate for a second resolution?

This is a question that has received no sustained attention in scholarship or in practice. This itself is a cause for celebration, a reflection of the fact that unilateral treaty withdrawals by Presidents historically have been rare and usually well-founded. It was controversial when President Carter unilaterally withdrew the United States from its mutual defense treaty with Taiwan, but his successor quickly came to recognize the value of normalized relations with mainland China.1 1.Compare Carter’s Vow on Taiwan Is Demanded by Reagan, N.Y. Times (Feb. 11, 1979), https://perma.cc/MB97-MVMN (describing Ronald Reagan’s expressed support for a lawsuit challenging this withdrawal in 1979), with Katharine Macdonald & Robert G. Kaiser, Reagan Declares He Seeks Only To Hold to Taiwan Relations Act, Wash. Post (Aug. 26, 1980), https://perma.cc/6FXF-TCHB (describing Reagan’s shift during his campaign to a commitment that he “would not try to fundamentally alter the U.S. relationship with Peking or Taiwan”).Show More

Since coming to office, President Trump has pursued a policy of international disengagement on many fronts. To date, he has focused mainly on rolling back international commitments made by President Obama which the United States had joined not as “treaties” in the constitutional sense of the word, but rather through other constitutional pathways.2 2.E.g., Stephen P. Mulligan, Cong. Research Serv., R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 17–23 (2018), https://perma.cc/3Y4K-NB8D (describing President Trump’s withdrawal from the Iran nuclear deal and his announced future withdrawal from the Paris Agreement on climate). For a discussion of the alternative pathways that exist under U.S. domestic law for joining international commitments, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1684–97 (2017).Show More Yet he and his administration have also shown a willingness to terminate treaties—legal instruments that received the advice and consent of two-thirds of the Senate and thus commanded, at least at one point in history, strong bipartisan support.3 3.Here and throughout this Article, I use “treaty” and “treaties” to refer to international agreements for which the advice and consent of two-thirds of the Senate is being sought or has been obtained. See Restatement (Fourth) of Foreign Relations Law pt. 3, intro. note (Am. Law Inst. 2018) (“In U.S. domestic law, . . . the term ‘treaties’ refers . . . to international agreements concluded by the President with the advice and consent of two-thirds of the Senate.”).Show More Specifically:

  • News reporting early in the Trump administration indicated that it planned to conduct a widespread review of all multi­lateral treaties other than those “directly related to national security, extradition, or international trade” in order to assess “whether the United States should continue to be a party . . . .”4 4.Read the Trump Administration’s Draft of the Executive Order on Treaties, Wash. Post, https://perma.cc/B555-4VXG (posting a leaked draft of an executive order under consideration that contained this language); see also Max Fisher, Trump Prepares Orders Aiming at Global Funding and Treaties, N.Y. Times (Jan. 25, 2017), https://perma.cc/REE9-GPQ9 (reporting on the draft executive order).Show More
  • In October 2018, the Trump administration announced the immediate or planned U.S. withdrawal from three treaties: the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes; the Treaty of Amity, Economic Relations, and Consular Rights with Iran; and the Intermediate-Range Nuclear Forces (INF) Treaty with Russia and other former Soviet Republics.5 5.Contemporary Practice of the United States Relating to International Law, Trump Administration Announces Withdrawal from Four International Agreements, 113 Am. J. Int’l L. 132, 132 (Jean Galbraith ed., 2019); Contemporary Practice of the United States Relating to International Law, United States Initiates Withdrawal from Intermediate-Range Nuclear Forces Treaty, 113 Am. J. Int’l L. 631, 632 n.5 (Jean Galbraith ed., 2019).Show More
  • In remarks related to two of these withdrawals, then-National Security Advisor John Bolton signaled that the Trump administration would more generally consider withdrawing from treaties or treaty provisions in which the United States had consented to the jurisdiction of the International Court of Justice.6 6.Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor, White House (Oct. 3, 2018), https://perma.cc/D99Y-X4AW.Show More
  • President Trump has repeatedly expressed doubts about NATO and has indicated some interest in withdrawing from the North Atlantic Treaty which underlies it.7 7.See, e.g., The President’s News Conference with Prime Minister Theresa May of the United Kingdom in Buckinghamshire, United Kingdom, 2018, Daily Comp. Pres. Doc. No. DCPD-201800483, at 6 (July 13, 2018) (“NATO is really there for Europe, much more so than us. It helps Europe whether—no matter what our military people or your military people say, it helps Europe more than it helps us.”); Julian E. Barnes & Helene Cooper, Trump Discussed Pulling U.S. from NATO, Aides Say Amid New Concerns over Russia, N.Y. Times (Jan. 14, 2019), https://perma.cc/S8TP-59V3 (reporting that President Trump has privately expressed interest in withdrawing from NATO on multiple occasions).Show More

As a matter of U.S. domestic law, the executive branch considers itself authorized to withdraw from treaties without receiving explicit approval to do so from Congress or the Senate, at least provided that the withdrawal is consistent with international law. Although his position has never received the explicit blessing of the U.S. Supreme Court, it is now well-grounded in executive branch practice and it has been accepted both by the Restatement (Third) and the recent Restatement (Fourth) of Foreign Relations Law.8 8.Restatement (Third) of Foreign Relations Law § 339 (Am. Law Inst. 1987); Restatement (Fourth) of Foreign Relations Law § 313 (Am. Law Inst. 2018). In Goldwater v. Carter, the Supreme Court deemed nonjusticiable the question of whether President Carter could terminate the mutual defense treaty with Taiwan in a manner consistent with its termination clause but without approval from two-thirds of the Senate or from Congress. 444 U.S. 996, 1002 (1979) (plurality opinion) (finding that the case posed a political question); id. at 997 (Powell, J., concurring in judgment) (viewing the case to be unripe).Show More The prospect of landmark treaties being terminated at the whim of President Trump has motivated some scholarly reexamination of this issue.9 9.E.g., Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 Yale L.J. F. 432, 435 (2018).Show More But requiring the explicit approval of Congress or two-thirds of the Senate for treaty withdrawal raises its own normative concerns and in any event is an uphill argument in light of past practice. And unless and until such a claim succeeds with the courts (or Congress explicitly legislates to block termination), President Trump and his successors will continue to possess the putative power of treaty withdrawal.

This Article therefore focuses on the issue of rejoining treaties. The more polarized the office of the Presidency becomes—and the more it is held by individuals who act based on caprice rather than expertise—the greater the likelihood there is that one President will withdraw from treaties that a later President will wish to rejoin. Such rejoining would have to be not only feasible at the international level (i.e., consistent with international law and receiving any necessary approval from treaty partners), but also legal as a matter of domestic law.

This Article is not the first piece to consider the issue of the process for rejoining treaties. Back in 1986, for example, shortly after President Reagan withdrew the United States from the general jurisdiction of the International Court of Justice, a student comment on the subject stated without analysis that rejoining “would be contingent on the advice and consent of the Senate.”10 10.Douglas J. Ende, Comment, Reaccepting the Compulsory Jurisdiction of the International Court of Justice: A Proposal for a New United States Declaration, 61 Wash. L. Rev. 1145, 1162 n.117 (1986).Show More More recently and more significantly, a former leading practitioner for the State Department in the climate context, Sue Biniaz, sketched out some thoughts about the legal process for rejoining in a conference thought paper. Raising the possibility that President Trump might withdraw from the U.N. Framework Convention on Climate Change, she floated the idea that “a new Administration [could] take the position that the Senate’s original resolution of advice and consent had not expired and, as such, the President was free to [resubmit] an instrument of ratification.”11 11.Susan Biniaz, U.S. Intent to Withdraw from the Paris Agreement: A Round-up of Interesting Legal Issues that Either Arose or Might Have Arisen 8 (unpublished paper from the 2017 Duke-Yale Foreign Relations Law Roundtable, on file with author); see also id. at 8–9 (elaborating on this point).Show More Yet while the idea of rejoining treaties is not new to this paper, it is a subject that to date has not received sustained scholarly treatment, unlike the issue of treaty withdrawal.

There are three ways by which the President might rejoin a treaty as a matter of domestic law. One obviously lawful way would be to go back to the Senate for another round of advice and consent by a supermajority. But getting treaties through the Senate has always been challenging and is now even harder than it used to be, due both to increased partisanship and to changed procedural norms. Indeed, from 2001 through 2010, the Senate advised and consented to only one treaty where there were any recorded dissenting votes.12 12.Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247, 287 (2012).Show More To require another round of Senate advice and consent to rejoin treaties would cause such rejoining to range from challenging to effectively impossible.

A second option would be to rejoin the international agreement not as a treaty but rather through some other domestic process. U.S. constitutional practice has developed several domestic pathways distinct from that set out in the Treaty Clause by which the United States can join international agreements.13 13.For an overview of these kinds of agreements, see Galbraith, supra note 2, at 1684–97.Show More Some important agreements are made by the executive branch without specific legislative approval, such as President Obama’s decision to join the United States to the Paris Agreement on climate.14 14.See id. at 1731–43 (analyzing the process by which the United States joined the Paris Agreement and discussing the extent to which this process contained constraints on executive power).Show More Others, such as most major trade agreements, receive specific approval from Congress.15 15.Id. at 1703, 1727 (noting that the success of this process relies heavily on pre-existing legislation that ensures an up-and-down congressional vote for trade agreements).Show More There is considerable uncertainty about the extent to which the uses of these other pathways are constitutionally permissible. Accordingly, these alternative pathways might be available as a matter of law for some or even all international agreements which the United States initially joined as treaties but later withdrew from based on unilateral presidential action.16 16.This is a complex issue even for entirely new international agreements and would be even more complicated with respect to the rejoining of international agreements previously made as treaties. In those cases, it would present the further question of whether the initial treatment of the agreement as a “treaty” might limit the availability of other options as a matter of law.Show More Even if lawful, however, rebranding a former treaty as an agreement that could be joined in a manner akin to the Paris Agreement rather than as an Article II treaty would likely raise procedural concerns within the State Department, face congressional pushback, and potentially complicate the agreement’s implementation. Going to Congress for statutory approval prior to rejoining would reduce concerns about legality and implementation. But obtaining such approval would likely prove difficult as a matter of legislative process, particularly if the shift from treaty to congressional-executive agreement triggered resistance from the Senate Foreign Relations Committee.

The third option, whose legality and availability are the focus of this Article, would be to treat the Senate’s pre-existing resolution of advice and consent as still operative. The President could therefore rejoin the international agreement as a treaty, but without having to go again to the Senate for advice and consent. This approach would presumptively put rejoining on equal footing with withdrawing in terms of the domestic legal process. The presumption would be overcome, however, if rejoining would be inconsistent with the language of the original resolution, with any modifications to this resolution made by two-thirds of the Senate, or with an intervening congressional statute. The President’s ability to rejoin the treaty would also be contingent on this being an available option at the international level.

The doctrinal basis for treating original Senate resolutions of advice and consent as still operative rests on these resolutions’ text, on broader constitutional practice, and on structural principles. As a textual matter, while the Senate often puts substantial conditions into its resolutions of advice and consent, it typically does not include language that renders them ineffective for purposes of rejoining. As a matter of constitutional practice, while there is no specific practice on point for the issue of rejoining, two related strands suggest that the original resolutions should be taken to remain operative. First, these resolutions are already understood to remain operative well after the end of the Senate session in which they are passed, as the executive branch often does not ratify treaties until years after the Senate’s advice and consent has been given. Second, with respect to international agreements other than treaties that rely on some form of congressional authorization, the executive branch has used pre-existing authorizations as a basis for rejoining such agreements following withdrawal. In 2003, for example, President George W. Bush rejoined the United States to UNESCO (from which President Reagan had withdrawn the United States) in apparent reliance on the statutory authorization that has justified the initial U.S. entry into UNESCO many years earlier.17 17.See Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615, 1639 (2018) (describing the withdrawal from UNESCO by the Reagan administration and its rejoining by the George W. Bush administration).Show More Finally, as a structural principle, treating original Senate resolutions of advice and consent as remaining effective prevents the President from being singlehandedly able, through withdrawal, to undo the actions of a coordinate branch. It is one thing for the President to be able to withdraw the United States unilaterally from a treaty—after all, the President has unilateral discretion over whether to ratify the treaty. It is quite another thing for the President thereby to effectively erase a Senate resolution, unless the Senate or Congress expressly authorized this result.

The claim that a President can rely on the initial resolution of advice and consent to rejoin a treaty fits into a broader framework for the distribution of foreign affairs powers. Foreign relations law rests in an uneasy space between contrasts—foreign and domestic, congressional and presidential, flexible and constrained. A long-standing strand of scholarship raises concerns about the rise of presidential power and about the implications of this rise for U.S. international engagement.18 18.For a recent and important piece in this vein, see Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201 (2018).Show More The approach advocated for here in some ways both advances presidential power and brings uncertainty to international law. It advances presidential power by advocating an understanding of Senate resolutions that gives the President the power to treat them as ongoing authorizations, and it brings uncertainty by creating a pathway whereby presidents can zig-zag their way through treaties, if they so choose. In other ways, however, the approach advocated for here both serves as a check on presidential power and a mechanism for continuing international engagement on the part of the United States. For a legal framework in which the President can unilaterally withdraw from a treaty but not unilaterally rejoin it would be a legal framework that puts a heavy thumb on the scale against international engagement and that limits rebalancing by a future President. The approach advocated for here, by contrast, relies on a broader, developing alignment between U.S. foreign relations law and U.S. administrative law. In both cases, the executive branch wields considerable power, but in both cases the decisions of one administration can be revisited by another administration and thus are subject to the long-term checks of democracy.

In terms of structure, this Article has three parts. Part I is descriptive, identifying existing law and practice with respect to treaty formation and withdrawal. Part II is the core of the Article. It elaborates on and defends the doctrinal argument sketched above with respect to treaty rejoining. It argues that Senate resolutions of advice and consent can constitutionally authorize rejoining and, as a matter of their interpretation, should presumptively be read to do so. It also discusses limitations stemming from domestic law, international law, and international relations that might prevent rejoining with respect to particular treaties. Finally, it assesses the practical effect of a presidential power to rejoin treaties and emphasizes that this power is much more likely to be workable with respect to multilateral treaties which are open broadly to membership than with respect to bilateral treaties, which cannot be re-established without the consent of the other nation. Part III situates the doctrinal argument made in Part II within a broader theory of the constitutional distribution of foreign affairs powers.

  1. * Professor, University of Pennsylvania Law School. I thank Curt Bradley, Sue Biniaz, Arancha Hinojal Oyarbide, and Duncan Hollis for their generous and thoughtful comments on earlier drafts, as well as participants at the Penn Law faculty workshop. For assistance with sources, I thank Gabriela Femenia of the Biddle Law Library at Penn Law. Finally, I thank the editors of the Virginia Law Review, especially Justin Aimonetti, Nicholas Allen, Nicole Gilson, and Amanda Swanson for their careful editing. All views and any errors are my own. ↑

  2. Compare Carter’s Vow on Taiwan Is Demanded by Reagan, N.Y. Times (Feb. 11, 1979), https://perma.cc/MB97-MVMN (describing Ronald Reagan’s expressed support for a lawsuit challenging this withdrawal in 1979), with Katharine Macdonald & Robert G. Kaiser, Reagan Declares He Seeks Only To Hold to Taiwan Relations Act, Wash. Post (Aug. 26, 1980), https://perma.cc/6FXF-TCHB (describing Reagan’s shift during his campaign to a commitment that he “would not try to fundamentally alter the U.S. relationship with Peking or Taiwan”). ↑
  3. E.g., Stephen P. Mulligan, Cong. Research Serv., R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 17–23 (2018), https://perma.cc/3Y4K-NB8D (describing President Trump’s withdrawal from the Iran nuclear deal and his announced future withdrawal from the Paris Agreement on climate). For a discussion of the alternative pathways that exist under U.S. domestic law for joining international commitments, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1684–97 (2017). ↑
  4. Here and throughout this Article, I use “treaty” and “treaties” to refer to international agreements for which the advice and consent of two-thirds of the Senate is being sought or has been obtained. See Restatement (Fourth) of Foreign Relations Law pt. 3, intro. note (Am. Law Inst. 2018) (“In U.S. domestic law, . . . the term ‘treaties’ refers . . . to international agreements concluded by the President with the advice and consent of two-thirds of the Senate.”). ↑
  5. Read the Trump Administration’s Draft of the Executive Order on Treaties, Wash. Post, https://perma.cc/B555-4VXG (posting a leaked draft of an executive order under consideration that contained this language); see also Max Fisher, Trump Prepares Orders Aiming at Global Funding and Treaties, N.Y. Times (Jan. 25, 2017), https://perma.cc/REE9-GPQ9 (reporting on the draft executive order). ↑
  6. Contemporary Practice of the United States Relating to International Law, Trump Administration Announces Withdrawal from Four International Agreements, 113 Am. J. Int’l L. 132, 132 (Jean Galbraith ed., 2019); Contemporary Practice of the United States Relating to International Law, United States Initiates Withdrawal from Intermediate-Range Nuclear Forces Treaty, 113 Am. J. Int’l L. 631, 632 n.5 (Jean Galbraith ed., 2019). ↑
  7. Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor, White House (Oct. 3, 2018), https://perma.cc/D99Y-X4AW. ↑
  8. See, e.g., The President’s News Conference with Prime Minister Theresa May of the United Kingdom in Buckinghamshire, United Kingdom, 2018, Daily Comp. Pres. Doc. No. DCPD-201800483, at 6 (July 13, 2018) (“NATO is really there for Europe, much more so than us. It helps Europe whether—no matter what our military people or your military people say, it helps Europe more than it helps us.”); Julian E. Barnes & Helene Cooper, Trump Discussed Pulling U.S. from NATO, Aides Say Amid New Concerns over Russia, N.Y. Times (Jan. 14, 2019), https://perma.cc/S8TP-59V3 (reporting that President Trump has privately expressed interest in withdrawing from NATO on multiple occasions). ↑
  9. Restatement (Third) of Foreign Relations Law § 339 (Am. Law Inst. 1987); Restatement (Fourth) of Foreign Relations Law § 313 (Am. Law Inst. 2018). In Goldwater v. Carter, the Supreme Court deemed nonjusticiable the question of whether President Carter could terminate the mutual defense treaty with Taiwan in a manner consistent with its termination clause but without approval from two-thirds of the Senate or from Congress. 444 U.S. 996, 1002 (1979) (plurality opinion) (finding that the case posed a political question); id. at 997 (Powell, J., concurring in judgment) (viewing the case to be unripe). ↑
  10. E.g., Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 Yale L.J. F. 432, 435 (2018). ↑
  11. Douglas J. Ende, Comment, Reaccepting the Compulsory Jurisdiction of the International Court of Justice: A Proposal for a New United States Declaration, 61 Wash. L. Rev. 1145, 1162 n.117 (1986). ↑
  12. Susan Biniaz, U.S. Intent to Withdraw from the Paris Agreement: A Round-up of Interesting Legal Issues that Either Arose or Might Have Arisen 8 (unpublished paper from the 2017 Duke-Yale Foreign Relations Law Roundtable, on file with author); see also id. at 8–9 (elaborating on this point). ↑
  13. Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247, 287 (2012). ↑
  14. For an overview of these kinds of agreements, see Galbraith, supra note 2, at 1684–97. ↑
  15. See id. at 1731–43 (analyzing the process by which the United States joined the Paris Agreement and discussing the extent to which this process contained constraints on executive power). ↑
  16. Id. at 1703, 1727 (noting that the success of this process relies heavily on pre-existing legislation that ensures an up-and-down congressional vote for trade agreements). ↑
  17. This is a complex issue even for entirely new international agreements and would be even more complicated with respect to the rejoining of international agreements previously made as treaties. In those cases, it would present the further question of whether the initial treatment of the agreement as a “treaty” might limit the availability of other options as a matter of law. ↑
  18. See Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615, 1639 (2018) (describing the withdrawal from UNESCO by the Reagan administration and its rejoining by the George W. Bush administration). ↑
  19. For a recent and important piece in this vein, see Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201 (2018). ↑
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