I agree with Mike Ramsey that the recent letter signed by 47 senators was a reasonable exception to normal practice, given President Obama's tendency to overstretch constitutional limits. It puts the world on notice that presidential power in this area is limited, and that seems like a rather harmless and straightforward thing to do. If anything, the letter overestimated presidential power, as Mike described.
However, I would like to briefly disagree with a statement that Mike made in his otherwise excellent book, at page 214: "the ratification debates, seem to assume that Article II, Section 2 is the only source of treatymaking power." Likewise, Mike recently reiterated here that, "a congressional-executive agreement, approved by a majority of both houses of Congress… is [not] allowed under the Constitution's original meaning…."
It is true that people during the ratification period generally expected that two-thirds of the Senate would be needed even to make a commercial treaty. For example, Roger Sherman stated publicly that, "It is provided by the Constitution that no commercial treaty shall be made by the president without the consent of two-thirds of the senators present." However, it is likely that Sherman was referring there only to long-term treaties that could not be legitimately characterized instead as mere "agreements". I come to this conclusion for two reasons….
The widely-circulated treatise by Emmerich de Vattel titled "The Law of Nations" drew a definite distinction between long-term "treaties" on the one hand, versus short-term deals that could be classified as either "treaties" or "agreements" on the other hand. The Constitution itself uses both words. I would not assume that Sherman's statement was referring to the short-term deals.
This point comes much more clearly into focus if we consider the remarks of Gilbert Livingston at the New York ratification convention. He said: "Congress cannot make a treaty for longer than it stands." A separate transcript of that same New York convention records Livingston as having said: "Congress cannot make a treaty for a longer time than they stand for." There is no doubt he said it, and little doubt what he meant.
People like Livingston and Sherman thought that long-term commitments required 2/3 Senate approval even for commercial deals (and even if approval by the House of Representatives is required along with that of 2/3 of the Senate). But for short-term deals, Congress could proceed by ordinary legislation, unless the President prefers to use an Article II treaty (e.g. for reasons of secrecy or urgency). Reciprocal legislation was a common notion back then, and no one thought it required an Article II treaty.
This leaves the question about what the difference is between a long-term deal and a short-term deal. Given that widespread sentiment was to inhibit foreign entanglements, the framers and ratifiers would have been very unlikely to have considered a lasting deal to be long-term if it can be easily and totally revoked by either party at any time.
In that sense, NAFTA seems constitutional to me, as a matter of original meaning. This is because Congress can completely get out of NAFTA at any time, with a mere six months' notice, without incurring any penalty. In other words, Congress could easily overturn NAFTA this year, under not just domestic law, but also under international law, because NAFTA itself explicitly says so.
How all of this applies to an Iran deal is unclear, because no deal has been struck yet. However, it is not encouraging that Senators have been kept out of the loop. Harry Truman once blasted Woodrow Wilson on this very point, saying that Wilson "made the serious error of not including any Republicans or any senators from either party in his delegation" to the Paris Peace Conference (Truman also said Wilson was "intransigent and childish" in responding to the Senate's complaints about that treaty). I hope history is not repeating itself.
Posted at 9:48 AM