I mean: what is the constitutional status of the minerals deal that was supposed to be signed yesterday (but wasn't)? It was widely (but apparently erroneously) reported that the deal gave the United States an interest in Ukrainian mineral resources in return for U.S. security guarantees. If that was actually the intended deal, I think it would have been unconstitutional. But I don't think that was the deal (and hence its breakdown).
First, it seems obvious that the President did not intend the deal to be a treaty. The prospect of a 2/3 approval of any such deal in the Senate would seem to be essentially zero, and in any event the President never talked about it in those terms. Similarly, it seems unlikely that the President planned to submit it to Congress for approval (as an "ex post" congressional-executive agreement, in the manner of trade deals such as NAFTA and the USMCA).
Presidents also at times claim that Congress has authorized presidential agreement-making in advance (so-called "ex ante" congressional executive agreements). This arrangement is particularly problematic — even if one thinks Congress has power to approve international agreements outside the treatymaking power of Article II, Section 2 — because Presidents may claim authorization where none appears expressly on the face of the relevant statutes. This is a common, if constitutionally doubtful, move by Presidents, but it also seems that it was not contemplated here, as there does not appear to be any plausibly relevant statute.
Perhaps the President thought of it as a sole executive agreement (that is, a binding international agreement, committing the United States to the protection of Ukraine against Russian aggression, done on the President's independent constitutional authority). The Supreme Court has approve sole executive agreements in some circumstances, and as I've written they are probably constitutional — again in some circumstances — under the Constitution's original meaning. But those circumstances — either as accepted by the Supreme Court or as consistent with the original meaning — do not include giving binding security guarantees. Long term commitments on major topics cannot generally be done by sole executive agreement; otherwise the Constitution's requirement of 2/3 Senate approval could be evaded simply by calling an instrument an "agreement" instead of a "treaty".
So I speculate instead that the President thought of the deal as (at least from the U.S. perspective) a non-binding
"political commitment": in return for the mineral rights, the United States would be inclined to (but not bound to) support Ukraine against further Russian aggression. If so, this would be (in my view) entirely constitutional. As discussed in more detail here, nonbinding instruments are not contrary to the Constitution's treaty power, simply because they are nonbinding in international law and an essential characteristic of treaties — now and in the founding era — is that they are binding. Further (again in my view) the President has executive power over foreign affairs, which includes the power to make nonbinding agreements.
But the limit on the President's use of nonbinding agreements is that the foreign government may not find them sufficient. I speculate that this is what happened with the Ukraine minerals deal. Ukraine may have initially thought it was getting a firm, binding U.S. security commitment in return for the mineral rights. Closer examination showed that in fact the U.S. President was not making such a commitment (and indeed could not constitutionally make such an agreement). And a nonbinding security suggestion would be unsatisfactory (though constitutional).
Posted at 6:08 AM