Volume 106

Historical Gloss, Madisonian Liquidation, and the Originalism Debate

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such post-Founding governmental practice in discerning the Constitution’s separation of powers. That approach has been referred to as the “historical gloss” method of constitutional interpretation, based on language that Justice Frankfurter used to describe the concept in his concurrence in the Youngstown steel seizure case. Some originalist commentators, however, have advanced a potentially competing approach to crediting post-Founding practice, which they refer to as “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation.

To date, there has not been any systematic effort to compare gloss and liquidation, even though the differences between them bear on the constitutionality of a range of governmental practices relating to both domestic and foreign affairs in the fields of constitutional law and federal courts. This Article fills that gap in the literature. We first provide an account of what must be shown in order to establish historical gloss. Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued interbranch contestation. We then consider the extent to which the liquidation concept differs from that of gloss and whether those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, which would focus primarily on early historical practice and disallow “re-liquidation” of constitutional meaning once it had become settled by practice, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, as recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. We also question whether either account of liquidation is properly attributed to Madison.

Introduction

In discerning the Constitution’s separation of powers, it is common for courts, the political branches, and academic commentators to give weight to post-Founding governmental practice.1 1.See generally Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012).Show More Reliance on such practice is sometimes referred to as the “historical gloss” method of constitutional interpretation, based on the way that Justice Frankfurter described the concept in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer.2 2.343 U.S. 579 (1952).Show More In that decision, the Supreme Court held that President Truman had exceeded his constitutional authority in attempting to seize the nation’s steel mills during the Korean War to avert a strike.3 3.Id. at 582–84.Show More Frankfurter wrote separately to consider whether and to what extent historical practice might support Truman’s authority to seize the mills.4 4.Id. at 593–628 (Frankfurter, J., concurring).Show More

Frankfurter argued that historic governmental practice was relevant to the question of the President’s seizure authority, asserting that “[i]t is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.”5 5.Id. at 610.Show More In his view, although “[d]eeply embedded traditional ways of conducting government” could not “supplant the Constitution or legislation,” they could “give meaning to the words of a text or supply them.”6 6.Id.Show More Frankfurter reviewed the historical practice concerning executive seizure of property, however, and found it insufficient to sustain Truman’s action. Finding only three instances of presidential seizures comparable to the one at issue in the case, all of which occurred in 1941, Frankfurter concluded that “these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution [that we have previously credited],” “[n]or do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers.”7 7.Id. at 613.Show More

The Supreme Court’s reliance on historical practice in discerning the separation of powers long predates Frankfurter’s concurrence in Youngstown. For example, in a 1915 case, United States v. Midwest Oil Co., the Court rejected a challenge to President Taft’s decision to temporarily withdraw certain public lands from private development, emphasizing the “long continued practice [of making] orders like the one here involved.”8 8.236 U.S. 459, 469 (1915).Show More Along similar lines, the Court in the 1920s, in concluding that the President’s pardon power extends to a conviction for contempt of court, reasoned that “long practice under the pardoning power and acquiescence in it strongly sustains the construction it is based on.”9 9.Ex parte Grossman, 267 U.S. 87, 118–19 (1925).Show More And, in another decision from that period, the Court emphasized longstanding presidential practice when considering the circumstances under which the President’s “pocket veto”—that is, failure to sign a bill before Congress recesses—should be deemed to operate.10 10.The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character.”).Show More

A number of the Supreme Court’s modern separation of powers decisions have also relied heavily on historical practice. In 1981, in Dames & Moore v. Regan, the Court upheld executive orders transferring billions of dollars in claims to an international tribunal in The Hague, as part of the resolution of the Iranian hostage crisis, in large part based on the historical practice of presidential settlement of claims.11 11.453 U.S. 654 (1981).Show More In doing so, the Court expressly invoked Justice Frankfurter’s discussion of historical gloss.12 12.See id. at 686.Show More Two more recent decisions have particularly emphasized the importance of historical practice. In 2014, the Court in NLRB v. Noel Canning relied heavily on historical practice in construing the scope of the President’s authority to make recess appointments.13 13.134 S. Ct. 2550 (2014); see also Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1 (analyzing the role of historical practice in Noel Canning).Show More The Court explained that, because “the interpretive questions before us concern the allocation of power between two elected branches of Government,” it was appropriate to “put significant weight upon historical practice.”14 14.Noel Canning, 134 S. Ct. at 2559 (emphasis omitted).Show More The following year, in Zivotofsky v. Kerry, the Court again emphasized historical practice, this time in concluding that the President has an exclusive authority to recognize foreign governments and their territories that cannot be limited by Congress.15 15.135 S. Ct. 2076, 2091 (2015) (“In separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting Noel Canning, 134 S. Ct. at 2559)).Show More

Reliance on historical practice has also long been a staple of constitutional reasoning within the executive branch. To take one of many examples, executive branch lawyers rely extensively on practice in discerning the scope of the President’s constitutional authority to use military force. In 2018, for instance, the Justice Department’s Office of Legal Counsel (“OLC”) concluded, based largely on historical practice, that President Trump had the power to direct airstrikes against Syria in response to its use of chemical weapons during the civil war there.16 16.April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. __ (May 31, 2018), https://www.justice.gov/olc/opinion/file/1067551/­download [https://perma.­cc/QN7Q-HZKR].Show More Citing to earlier opinions from the Office, including one from 1970, OLC explained: “We have recognized that ‘[s]ince judicial precedents are virtually non-existent’ in defining the scope of the President’s war powers, ‘the question is one which of necessity must be decided by historical practice.’”17 17.Id. at5 (quoting Presidential Authority to Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 317 (1970)).Show More Similarly, in 2011 OLC concluded, based largely on historical practice, that President Obama had the constitutional authority to direct U.S. military forces to take part in bombing operations in Libya without first seeking congressional authorization.18 18.See Authority to Use Military Force in Libya, 35 Op. O.L.C. __ (Apr. 1, 2011), http://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya.pdf [https://perma.cc/G8RU-VLF7].Show More Quoting from an earlier legal opinion concerning a military intervention in Haiti, OLC asserted that “the pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, evidences the existence of broad constitutional power.”19 19.Id. at 7 (internal quotation marks omitted) (quoting Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 178 (1994)).Show More

Despite the prevalence of that sort of constitutional reasoning in the judiciary and the executive branch, until recently few academic commentators had given significant attention to it, or to its relationship to other approaches to constitutional interpretation. That started to change in 2012, when one of us co-authored an article exploring those questions.20 20.See Bradley & Morrison, supra note 1.Show More The Noel Canning decision two years later further heightened interest in the relevance of historical practice to the separation of powers. Since then, a number of commentators, including the two of us, have continued to try to unpack the concept of historical gloss.21 21.See, e.g., Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017) (examining the concept of historical gloss and its relationship to nonlegal but obligatory “constitutional conventions”); Curtis A. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017) (examining the relationship between how the historical gloss approach is implemented and the reasons for crediting historical practice); Bradley & Siegel, supra note 13 (analyzing the role of historical practice in Noel Canning).Show More

Some originalist commentators have invoked a different term to describe the relevance of post-Founding practice to constitutional interpretation: “liquidation.” Drawing on references to that term by James Madison and certain other members of the Founding generation, those commentators have outlined the conditions under which post-Founding practice can potentially “liquidate” indeterminate constitutional meaning such that it becomes “fixed.”22 22.In referring to “indeterminacy” in this Article, we are using it as a shorthand to encompass a range of circumstances in which the meaning of the constitutional text is under-determinate, including instances of “ambiguity, vagueness, gaps, and contradictions.” SeeLawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469–72 (2013).Show More The Supreme Court, too, has sometimes invoked the idea of “fixing” constitutional meaning when referring to the relevance of historical practice to constitutional interpretation.23 23.See, e.g., Myers v. United States, 272 U.S. 52, 175 (1926) (“[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions.”); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (rejecting a constitutional challenge to Congress’s requirement that Supreme Court Justices sit on circuit courts, explaining that “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction”).Show More The word “liquidation” is used in that context to mean essentially the opposite of the principal modern connotation of the word; instead of signifying dissolution (as in a “liquidation sale”), it is used to signify solidification or determination (as in “liquidated damages”).24 24.An obsolete meaning of “liquidate,” which is derived from the Late Latin “liquidare,” is “to make clear or plain (something obscure or confused); to render unambiguous; to settle (differences, disputes).” Liquidate, The Oxford English Dictionary (2d ed. 1989).Show More

In part because the concepts of gloss and liquidation have only recently begun to receive sustained academic attention, it is not entirely clear whether and to what extent they do or should differ from one another. In Noel Canning, the Court seemed to assume that liquidation and gloss were the same phenomenon. After quoting a reference to liquidation by Madison, the Court wrote that “our cases have continually confirmed Madison’s view.”25 25.134 S. Ct. 2550, 2560 (2014).Show More In its string cite of decisions, however, the Court included a number of decisions claimed by supporters of the gloss approach, including Frankfurter’s concurrence in Youngstown.26 26.See id. (citing Mistretta v. United States, 488 U.S. 361, 401 (1989); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); Youngstown, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, 279 U.S. 655, 689–90 (1929); Ex parte Grossman, 267 U.S. 87, 118–19 (1925); United States v. Midwest Oil Co., 236 U.S. 459, 472–74 (1915); McPherson v. Blacker, 146 U.S. 1, 27 (1892); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); and Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803)).Show More Legal scholars also appear to be confused about the distinction, if any, between gloss and liquidation. Writing a year after Noel Canning, Professor Richard Fallon expressed uncertainty, describing gloss as “[c]losely related” to liquidation but “possibly more capacious.”27 27.Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1775 (2015); see also Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465, 541 & n.424 (2018) (discussing “gloss” and stating that “[i]n a somewhat similar vein, Caleb Nelson and William Baude have suggested that political practice can ‘liquidate’ (that is, settle) the meaning of ‘contestable’ constitutional provisions” (emphasis added)).Show More

Although originalists often focus on history, usually it is history relating to the constitutional Founding and the pre-Founding period.28 28.See Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 655–57 (2013) (describing how originalism has traditionally focused on history relating to the adoption of the Constitution and its amendments).Show More Perhaps because of that, for many years the only scholar to have extensively addressed liquidation was Professor Caleb Nelson, who described it in primarily historical terms.29 29.Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–53 (2003) [hereinafter Nelson, Originalism and Interpretive Conventions]; Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001) [hereinafter Nelson, Stare Decisis].Show More In a more recent article, however, Professor William Baude has offered a more detailed and contemporary account of the concept.30 30.William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).Show More Meanwhile, the historian Jonathan Gienapp has published an important study of how, over the course of the 1790s, Madison and others in the Founding generation changed their understanding of the nature of the Constitution, including its relationship to historical practice.31 31.Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018).Show More

In this Article, we consider whether and to what extent the concept of liquidation differs from that of gloss. We also consider whether, to the extent that there are differences between liquidation and gloss, those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, which would look primarily to early historical practice and disallow “re-liquidation” once constitutional meaning had become settled through practice, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We then argue that Baude’s broader account of liquidation responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either account of liquidation is properly attributed to Madison.

The differences between gloss and liquidation matter. In part because of recent judicial appointments to both the Supreme Court and the lower federal courts, originalism may be experiencing a resurgence.32 32.See, e.g., Lawrence B. Solum, Legal Theory Lexicon 019: Originalism, Legal Theory Blog (last revised Aug. 11, 2019), https://lsolum.typepad.com/legal_theory_lexicon/2004/01/­legal_theory_le_1.html [https://perma.cc/UVY2-E25D] (“The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory—Associate Justices Neil Gorsuch and Clarence Thomas. Three other[] Justices, John Roberts, Samuel Alito, and Brett Kavanaugh[,] may also be receptive to originalist arguments—at least in some cases.”).Show More At the same time, originalist theory has become more receptive to accommodating various non-originalist materials, including historical practice.33 33.See infra notes 45–53 and accompanying text.Show More Unlike the changes in originalist theory over the years—from a focus on the intentions of the Framers, to the understandings of the ratifiers, to the original public meaning of the constitutional text—and unlike the originalist embrace of judicial precedent and the idea of “constitutional construction,”34 34.See id.Show More originalist efforts to claim a greater role for post-Founding historical practice as within the originalist project have not yet received much attention or recognition as such. Like those other “impurifications” of originalism, however, the originalist turn to practice presents originalists with difficult tradeoffs.35 35.For analysis of the phenomenon of theory “working itself impure,” with originalism as one of several case studies, see Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016).Show More As we will explain below, those tradeoffs vary depending on whether one opts for gloss or liquidation. More concretely, the constitutionality of many important and longstanding governmental practices in the fields of both constitutional law and federal courts may depend on that choice. Examples include the recess appointments practices accepted in Noel Canning; the extensive modern practice of using congressional-executive agreements in lieu of Senate-approved treaties; presidential authority to order small-scale or short-term uses of military force without congressional authorization; the authority of presidents to withdraw the United States from treaties; the longstanding practice of permitting non-Article III courts to adjudicate federal law cases subject to certain limitations; and the even longer practice of vesting less than the full Article III judicial power in the federal courts notwithstanding the ostensibly mandatory language of Article III.36 36.See infra notes 54–55, 115–124 and accompanying text.Show More

Part I explains why attention to post-Founding historical practice fits more naturally with non-originalist theories of constitutional interpretation than with originalist theories, and it considers why some originalists are nevertheless paying increasing attention to practice. Part II describes the historical gloss approach and explains why, under most accounts, it does not require evidence of an interbranch agreement about the meaning of the Constitution. It also argues that gloss is most defensible in the separation of powers context. Part III assesses the extent to which the liquidation approach is distinct from gloss. It argues that, even under the relatively broad account of the concept recently offered by Baude, there are differences, and that those differences render liquidation normatively less attractive than gloss. Part IV explains why it is doubtful that the liquidation approach as described by scholars such as Nelson and Baude can properly be attributed to Madison. The Article concludes by underscoring the importance of historical practice in light of the age, brevity, and difficulty of amending the Constitution.

  1. * Bradley is the William Van Alstyne Professor, Duke Law School. Siegel is the David W. Ichel Professor, Duke Law School. For helpful comments and suggestions, we thank Matt Adler, Jack Balkin, Will Baude, Joseph Blocher, Jamie Boyle, Kathy Bradley, John De Figueiredo, Richard Fallon, Jonathan Gienapp, Tara Grove, Aziz Huq, Vicki Jackson, Margaret Lemos, Sanford Levinson, Marin Levy, William Marshall, Caleb Nelson, H. Jefferson Powell, David Pozen, Daphna Renan, Lawrence Solum, Mark Tushnet, Ernest Young, participants in a faculty workshop at Duke Law School, and the editors of the Virginia Law Review. ↑

  2. ↑
  3. See generally Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012). ↑
  4. 343 U.S. 579 (1952). ↑
  5. Id. at 582–84. ↑
  6. Id. at 593–628 (Frankfurter, J., concurring). ↑
  7. Id. at 610. ↑
  8. Id. ↑
  9. Id. at 613. ↑
  10. 236 U.S. 459, 469 (1915). ↑
  11. Ex parte Grossman, 267 U.S. 87, 118–19 (1925). ↑
  12. The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character.”). ↑
  13. 453 U.S. 654 (1981). ↑
  14. See id. at 686. ↑
  15. 134 S. Ct. 2550 (2014); see also Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1 (analyzing the role of historical practice in Noel Canning). ↑
  16. Noel Canning, 134 S. Ct. at 2559 (emphasis omitted). ↑
  17. 135 S. Ct. 2076, 2091 (2015) (“In separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting Noel Canning, 134 S. Ct. at 2559)). ↑
  18. April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. __ (May 31, 2018), https://www.justice.gov/olc/opinion/file/1067551/­download [https://perma.­cc/QN7Q-HZKR]. ↑
  19. Id. at 5 (quoting Presidential Authority to Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 317 (1970)). ↑
  20. See Authority to Use Military Force in Libya, 35 Op. O.L.C. __ (Apr. 1, 2011), http://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya.pdf [https://perma.cc/G8RU-VLF7]. ↑
  21. Id. at 7 (internal quotation marks omitted) (quoting Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 178 (1994)). ↑
  22. See Bradley & Morrison, supra note 1. ↑
  23. See, e.g., Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017) (examining the concept of historical gloss and its relationship to nonlegal but obligatory “constitutional conventions”); Curtis A. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017) (examining the relationship between how the historical gloss approach is implemented and the reasons for crediting historical practice); Bradley & Siegel, supra note 13 (analyzing the role of historical practice in Noel Canning). ↑
  24. In referring to “indeterminacy” in this Article, we are using it as a shorthand to encompass a range of circumstances in which the meaning of the constitutional text is under-determinate, including instances of “ambiguity, vagueness, gaps, and contradictions.” See Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469–72 (2013). ↑
  25. See, e.g., Myers v. United States, 272 U.S. 52, 175 (1926) (“[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions.”); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (rejecting a constitutional challenge to Congress’s requirement that Supreme Court Justices sit on circuit courts, explaining that “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction”). ↑
  26. An obsolete meaning of “liquidate,” which is derived from the Late Latin “liquidare,” is “to make clear or plain (something obscure or confused); to render unambiguous; to settle (differences, disputes).” Liquidate, The Oxford English Dictionary (2d ed. 1989). ↑
  27. 134 S. Ct. 2550, 2560 (2014). ↑
  28. See id. (citing Mistretta v. United States, 488 U.S. 361, 401 (1989); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); Youngstown, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, 279 U.S. 655, 689–90 (1929); Ex parte Grossman, 267 U.S. 87, 118–19 (1925); United States v. Midwest Oil Co., 236 U.S. 459, 472–74 (1915); McPherson v. Blacker, 146 U.S. 1, 27 (1892); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); and Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803)). ↑
  29. Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1775 (2015); see also Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465, 541 & n.424 (2018) (discussing “gloss” and stating that “[i]n a somewhat similar vein, Caleb Nelson and William Baude have suggested that political practice can ‘liquidate’ (that is, settle) the meaning of ‘contestable’ constitutional provisions” (emphasis added)). ↑
  30. See Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 655–57 (2013) (describing how originalism has traditionally focused on history relating to the adoption of the Constitution and its amendments). ↑
  31. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–53 (2003) [hereinafter Nelson, Originalism and Interpretive Conventions]; Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001) [hereinafter Nelson, Stare Decisis]. ↑
  32. William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019). ↑
  33. Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018). ↑
  34. See, e.g., Lawrence B. Solum, Legal Theory Lexicon 019: Originalism, Legal Theory Blog (last revised Aug. 11, 2019), https://lsolum.typepad.com/legal_theory_lexicon/2004/01/­legal_theory_le_1.html [https://perma.cc/UVY2-E25D] (“The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory—Associate Justices Neil Gorsuch and Clarence Thomas. Three other[] Justices, John Roberts, Samuel Alito, and Brett Kavanaugh[,] may also be receptive to originalist arguments—at least in some cases.”). ↑
  35. See infra notes 45–53 and accompanying text. ↑
  36. See id. ↑
  37. For analysis of the phenomenon of theory “working itself impure,” with originalism as one of several case studies, see Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016). ↑
  38. See infra notes 54–55, 115–124 and accompanying text. ↑

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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