Elections Have Consequences Redux

My only quibble with Mark’s dead-on post about Bolton and Yoo is that here, losing elections does not teach neocons to “care about the Constitution” because their argument about the Constitution is simply wrong.

As I pointed out one month ago, anticipating this precise issue, 94% of US international agreements have been made as executive-legislative agreements. Thus, when Bolton and Yoo, with their usual disingenuousness, concede that “some” international economic agreements are not approved as treaties, they conveniently neglect to mention that “some” means “virtually all.”

When they say that executive-legislative agreements have received “scathing attacks from constitutional experts,” they really means that they have been attacked by — you guessed it — John Yoo. Now, in fairness, Laurence Tribe has also attacked congressional-executive agreements, and I am waiting for Yoo now to tell us about how brilliant Tribe is as a constitutional scholar.

But these are very lonely voices: the overwhelming consensus of legal scholars is that legislative-executive agreements are generally proper instruments. The Restatement (Third) of Foreign Relations Law, section 303, reporters’ note 8 (1987) (for those keeping score–footnote 22 in the link), states that “At one time it was argued that some agreements can be made only as treaties . . . . Scholarly opinion has rejected that view.”

Indeed, Bolton and Yoo’s view does not reflect the views of “constitutional experts,” but in fact is the opinion of Edwin Borchard, perhaps the most prominent legal advocate of isolationism in the 20th Century. Good company, that.

Bolton and Yoo, then, are not only disingenuous hacks: they are very bad lawyers. But you knew that.

By the way: why would it be Constitutional to have two different ways to approve international agreements? It’s fairly straightforward. First (although this is very rare), an international agreement might concern something outside Congress’ Article I powers. Second, and I think more persuasive, is what I call the Meat Loaf Argument. Meat Loaf, as you may recall, penned a famous 70’s ode entitled “Two Out of Three Ain’t Bad.” So it is with treaty law. Really.

You can enact a treaty with the President and 2/3 of the Senate, if you are going to bypass the House. You can enact an international agreement with 2/3 of the Senate and the House, if you are going to bypass the President. So–Two Out of Three Ain’t Bad. It’s more complex than this, because you can’t enact a treaty without the Senate even if 100% of the House, and the President say it’s okay. And there are genuine issues about whether Congress can enact an agreement without Presidential approval (my view is that they can, although there is a debate on that). But the overall principle is that you can have an agreement if there is strong political support–and either a Treaty or an Executive-Legislative Agreement, or a plain old Statute, can do the trick.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.