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02-04-2008

Pen Him In
Justin Florence and Matthew Gerke

As the clock ticks down on George W. Bush’s presidency, his administration is eager
to forge an agreement with Iraq to secure a long-term U.S. presence there. Last
November, Bush and Iraqi Prime Minister Nouri al-Maliki signed a joint declaration of
principles, and they expect to sign a bilateral agreement this summer.
Although the administration has kept the details of the agreement close to its vest, it
has made one thing clear: It won’t submit the agreement to Congress for approval.
Members of Congress, including Sens. Hillary Clinton (D-N.Y.) and Barack Obama (D-
Ill.), are concerned by the president’s unilateral approach and his intention to tie the
hands of a future president. Bills pending in the House (H.R. 4959) and the Senate
(S. 2426) would cut off funding for any such agreement. They also would express the
“sense of Congress” that an agreement without congressional approval “does not
have the force . . . of law.”
As a practical matter, Congress may be unlikely to cut off funds for Iraq activities. But
there might be enough votes to affirm a statement that protects Congress’
constitutional role in our government. And such a statement could be more than a
mere rhetorical flourish: The words may be enough to block the Iraq agreement as a
matter of both U.S. and international law.
FOREIGN AGREEMENTS
The Constitution grants the president the authority to make treaties, provided they
are approved by two-thirds of the Senate. As a matter of historical practice, the
president may also make international agreements if authorized to do so by a law
passed by Congress. (These are called “congressional-executive agreements”; the
North American Free Trade Agreement is a prominent example.) And in some narrow
cases, the president may create an international agreement all by himself through
his own constitutional powers. (These are referred to as “sole executive
agreements”; the Algiers Accords, which ended the Iran hostage crisis, are an
example.) Although these have different names in U.S. law, as a matter of
international law they are all considered treaties, and they all legally bind the United
States and future presidents.
Although Bush claims that he has the constitutional power to enter into the Iraq
treaty as a sole executive agreement, members of Congress believe that an
agreement of the sort suggested by press accounts and the November declaration of
principles — involving detainees, contractors, combat activity, economic
development, debt forgiveness, and possibly long-term security guarantees “against
internal and external threats” — requires their approval.
PRESIDENT v. CONGRESS
Which branch is right as a matter of constitutional law?
Under the approach the Supreme Court uses to evaluate claims of presidential
power, a resolution stating the views of Congress might affect the answer. As Justice
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Robert Jackson explained (in a concurring opinion) in Youngstown Sheet and Tube
Co. v. Sawyer (1952), when Congress has passed a law supporting the president’s
action, the executive’s authority is at its peak. When Congress has legislated about a
policy and rejected the president’s plan, then the executive’s authority is at its
“lowest ebb.” And when Congress is silent on an issue, the president’s authority is
somewhere in between.
What this means is that, in evaluating whether the president has the power to bind
the nation to an agreement with Iraq, the Court would begin by looking at what
Congress has said about the matter.
Until now, Congress has been silent on whether the president can create an Iraq
agreement by himself, but a resolution expressing congressional disavowal of an
agreement would put Congress on record firmly against the president’s action. That
would make it far more likely for the Court to ultimately find that the president lacks
the constitutional authority to bind the nation, for the president’s power would be at
its “lowest ebb.” When that is the case, as the Court stated in its Hamdan v.
Rumsfeld (2006) decision striking down Bush’s military commissions, the president
“may not disregard limitations that Congress has, in proper exercise of its own war
powers, placed on his powers.”
With respect to an Iraq agreement, Congress has some constitutional authority over
virtually all of the areas at issue in forging a long-term military, diplomatic, and
economic agreement. So if Congress passes a law explicitly limiting the president’s
ability to enter into such an agreement, the president would almost certainly lack the
constitutional power to bind the nation.
TO COURT
This might prompt Bush to back down, but he has a history of disregarding acts of
Congress that he believes interfere with his executive prerogatives, unless the courts
step in.
Although federal courts have been reluctant to enter disputes between Congress and
the president, the judiciary would be far more likely to reach the merits of the dispute
if Congress goes on record with its views. In particular, a line of cases holds that until
Congress as a body has formally acted on an issue, the dispute is not yet ripe for a
court’s consideration.
In 1979, Barry Goldwater and other individual members of Congress filed a lawsuit to
prevent President Jimmy Carter from pulling out of a defense treaty with Taiwan,
even though the Congress had never formally objected to the president’s plan. In
Goldwater v. Carter (1979), the Supreme Court rejected the suit, with Justice Lewis
Powell Jr. explaining (in a concurring opinion), “The Judicial Branch should not decide
issues affecting the allocation of power between the President and Congress until the
political branches reach a constitutional impasse.” But he continued, “If the
Congress, by appropriate formal action, had challenged the President’s authority to
terminate the treaty with Taiwan . . . it would be the duty of this Court to resolve the
issue.”
Following this reasoning, a court would likely conclude that a suit by individual
members of Congress to block the president’s Iraq agreement is not ripe for
consideration unless Congress passes a formal resolution.
Thus, by disavowing any presidential agreement with Iraq, Congress would both
render the agreement itself constitutionally suspect and set the stage for a court to
consider the case.
INTERNATIONAL LAW
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Even better, a congressional resolution stating that the president lacks authority to
bind the nation may well invalidate any agreement as a matter of international law.
An international treaty, the Vienna Convention on the Law of Treaties, sets out the
rules for how treaties should be made and which ones are valid. Although the United
States has not yet ratified the Vienna Convention, the U.S. State Department and
multiple federal courts have said that the Vienna Convention codifies existing
customary international law, and they have treated its provisions as binding on the
United States.
Generally speaking, under the Vienna Convention, an agreement signed by a head of
state binds a nation under international law, even if the treaty is not ratified in
accordance with that country’s internal law.
But the Vienna Convention contains two articles that address situations in which a
treaty can be voided if it is entered into improperly.
The first, Article 46, voids a treaty when the manner in which a nation gives consent
to enter the treaty violates “a rule of its internal law of fundamental importance” and
when that violation would be “objectively evident to any State conducting itself . . . in
good faith.”
Commentators and courts, both here and abroad, agree that our Constitution is an
internal law of fundamental importance. But, because there are situations when the
president can constitutionally enter an agreement by himself, some U.S. court
decisions and executive branch legal opinions have suggested that the requirement
for congressional approval is not “objectively evident” enough to invalidate a treaty
under Article 46. Those cases, however, involved situations where Congress was
silent about the agreement.
A congressional resolution explicitly stating that the president does not have the
constitutional power to enter into an agreement, and that Congress does not consent
to the agreement, would make it clear that the United States has not properly
consented. This should render the agreement void as a matter of international law.
QUESTIONABLE VALIDITY
A congressional resolution providing that the president cannot bind the nation could
also invalidate an agreement under a second provision of the Vienna Convention,
Article 47. That article allows a nation to limit the authority of its representative to
enter into treaties, as long as other party is notified in advance. The bills currently
under consideration in Congress would do just that — they would put Iraq on notice
that the president lacks authority to consent to an agreement.
Taken together, Articles 46 and 47 would call into question the international validity
of any agreement negotiated by the president in the face of an express statement of
opposition by Congress. At a minimum, these provisions would allow a future
president to argue convincingly that the United States should not be bound by Bush’s
unauthorized agreement.
Moreover, a clear statement by Congress would put the Iraqi government on notice
that any agreement not approved by Congress might not be valid and binding. Then,
if Iraq wants an ironclad guarantee, it will have to demand that the president submit
the agreement to Congress.
Congress is therefore able to demand a role in creating an agreement between the
United States and Iraq, and its strongest weapon is the power of the pen, not of the
purse.
A resolution expressing the sense of the Congress that the president lacks authority
to enter into an Iraq agreement, and that any such agreement lacks the force of law,
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would cast grave doubt on the agreement’s validity as a matter of both U.S. and
international law.
And that just might be enough to get the president to back down and give Congress a
say in America’s long-term relationship with Iraq. And that, after all, is what the
Constitution requires.

Justin Florence and Matthew Gerke are fellows at the Georgetown Center on National
Security and the Law in Washington, D.C.