John McGinnis and Peter Shane tackle the appointments and treatymaking clauses for the National Constitution Center's Interactive Constitution, here. (This the format I noted in this post). Professor McGinnis' outstanding quick originalist assessment of the treatymaking power, with which I almost entirely agree:
Just as the President can fire executive officials pursuant to executive power that was not limited by the Appointments Clause, the President can terminate treaties according to their terms, because that traditional executive power was not limited by the Treaty Clause. However, he cannot terminate treaties in violation of their terms, because the Supremacy Clause makes treaties the supreme law of the land.
(Agreed. See The Constitution's Text in Foreign Affairs [CTFA], ch. 8.)
The Supreme Court is correct that President and the Senate can make treaties beyond the enumerated powers. The Treaty Clause is an executive power in Article II, and does not come with the limitations of Article I. Moreover, as Alexander Hamilton noted, its abuse is carefully guarded by a substantial supermajority rule — one that does not apply to legislation.
(Agreed. CTFA, ch. 15, and at greater length, this article)
While the Court's decisions upholding executive agreements are not incorrect, the practice of executive agreements needs to be more clearly circumscribed. The high hurdle posed by advice and consent under a supermajority rule was meant to prevent foreign entanglements. Thus, purely executive agreements should be permitted only when they are one-shot agreements, like prisoner exchanges or claim settlements, or when they are based solely on independent presidential authority, like the authority to recognize foreign nation states. See Michael B. [sic] Ramsey, The Constitution's Text in Foreign Affairs 191-217 (2007).
(Mostly agreed, and thanks for the cite! But, I do not agree that the Court's executive agreement decisions — Pink, Belmont and Dames & Moore — are "not incorrect." They are not incorrect in recognizing an executive agreement power, but they are wrong, wrong, wrong in holding executive agreements to be preemptive. See Article VI. Also here.)
For similar reasons, the notion that Congress and the President together can strike international deals so long as they make a congressional-executive agreement is wrong, and would deprive the Treaty Clause of much of its force. Perhaps the practice in some areas of congressional-executive agreements, like trade agreements, is so settled that it should not be reversed. But practice has never embraced the complete interchangeability of treaties and executive agreements, and such interchangeability cannot be squared with the Constitution's express requirements for making treaties.
(Agreed. CTFA, ch. 10.)
In contrast, Professor Shane's contribution tries to make the treatymaking clause seem hard to understand:
To the uninitiated reader, the Treaty Clause might be thought to imply that treaties represent the sole permissible instrument for formalizing the nation's international obligations, or that the Senate, because of its "advice and consent" role, would be a full partner with presidents in the negotiation of treaties. Neither is the case. The Washington and Adams Administrations used executive agreements, without Senate consent, both in arranging for the international delivery of mail and in settling claims arising from the seizure of a U.S. ship by a Dutch privateer. Such agreements, sometimes pursued unilaterally and sometimes with statutory authority, now far outnumber treaties as instruments of international commitment. As for actual treaties, when the Senate failed to provide Washington prompt advice concerning the negotiation of peace between Georgia and the Creek Indians, he established the now-uniform practice of presenting to the Senate for its consent only treaties that have already been completed.
Perhaps the "uninitiated reader" would find these developments puzzling, but they are not mysterious. As to advice and consent, the appointments clause strongly indicates that "advice and consent" can be given on a definite proposal (in that case, a nomination, which the clause envisions the President alone making). Thus, there's no reason to suppose that the treatymaking clause cannot also accommodate "advise" on a definite proposal (in the form of a signed treaty). And practice in the states prior to the Constitution also indicates that executives could satisfy a requirement of "advice" by presenting a fully formed plan of action. (See CTFA pp. 139-141). Thus Washington's approach was entirely constitutional.
Similarly, on executive agreements, the Constitution's text — Article I, Section 10 — indicates that there are some international agreements that are not treaties. This terminology comes from well-known international law writing of time. Thus the treatymaking clause does not preclude the President from making non-treaty agreements. And as a result, the practice of the Washington and Adams administrations on this point was also entirely constitutional. (See CTFA, ch. 9).
On the appointments clause, Professors Shane and McGinnis have a similar dynamic, with similar results.
Via Liberty Law Blog, where Professor McGinnis has further thoughts, including:
[My contribution] sharply criticizes the Court’s jurisprudence for its departures from the original meaning of the [appointments] Clause. Its opinions on the Appointments Clause are often self-serving because they generally maximize the Court’s discretionary powers at the expense of clearer rules actually contained in the Constitution. The resulting discretion allows them to be political and policy decision makers rather than faithful servants of the law.
…
I hope this essay highlights one of the greatest problems of constitutional jurisprudence—the Supreme Court’s tendency to expand its own powers. This tendency, is, of course, even more obvious in its jurisprudence of unenumerated rights, which allows justices to pick and choose what rights they believe are fundamental. But it is important to understand that the structural provisions of the Constitution have been distorted by the same will to power.
Posted at 6:54 AM