Constitutional Implications of Senate "Holds" on Treaties and Diplomatic Nominations
Turner, Robert F., Texas Review of Law & Politics
One of the recurring debates that seems to have nothing to do with ideology and everything to do with which political party happens to occupy the White House involves "holds" and other delays members place on Senate consideration of treaties and diplomatic nominations that have been submitted to the Senate for its "Advice and Consent."1 It is the thesis of this short essay that the Senate's role in both of these functions was intended by the Framers of our Constitution to be a very limited one; that the "negative" entrusted to the Senate was only to be exercised in the case of treaties by a minimum of one-third-plus-one senators and in the case of nominations by half or more of the Senate; and that altering these proportions may properly be done only by amending the Constitution pursuant to Article V.2 If this is true, then it follows that internal Senate rules or accommodations based upon "courtesy" unconstitutionally infringe upon the President's "executive Power"3 and authority to "make Treaties" and "appoint" diplomats with the advice and consent of the Senate.4 Although some of the reasoning in this essay may apply as well to judicial and other nominations, the special nature of foreign relations makes the case for a narrow construction of the Senate's authority strongest in that area.
The role of the Senate in the realm of diplomacy was understood by the Founding Fathers to be a limited one. Unlike in domestic affairs, where Congress was empowered to establish policy within the limits of its constitutional authority, in foreign affairs the President was expected to both make and execute policy, subject to some very important "negatives" vested in the Senate and Congress.
The general grant of foreign affairs power is contained in Article II, Section 1, which vests in the President the nation's "executive" power.5 This term was understood by most educated Americans in 1787 as it was used by writers such as Locke, Montesquieu, and Blacks tone-all of whom included within the scope of executive responsibility what Locke described as the business of "War and Peace, Leagues and Alliances."6 Montesquieu-whom Madison in The Federalist No. 47 described as "the oracle who is always consulted and cited" on separationof-powers matters7-distinguished what he termed the executive power "in respect to things dependent on the law of nations" from "the executive [power] in regard to matters that depend on the civil law."8 He described the former of these as that by which "the prince or magistrate . . . makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions."9 Similarly, in volume one of his Commentaries on the Laws of England, Blackstone noted that "[w]ith regard to foreign concerns, the king is the delegate or representative of his people. . . . What is done by the royal authority, with regard to foreign powers, is the act of the whole nation."10
In Philadelphia during the summer of 1787, the Framers of our Constitution embraced this understanding of "executive power," but they improved upon the teachings of the great publicists of their day by adding some important checks or "negatives" to our Constitution." As University of Chicago Professor Quincy Wright, a distinguished scholar who served as President of the International and American Political Science Associations and of the American Society of International Law, remarked in his classic 1922 study, The Control of American Foreign Relations, "when the constitutional convention gave 'executive power' to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto."12
In the early days of the First Congress in 1789, Representative James Madison introduced a bill to create a Department of Foreign Affairs, later re-designated as the Department of State. An issue arose of where the Constitution had placed the power to remove the Secretary whose appointment by the President with the advice and consent of the Senate was provided for in Article II. …