The Modern Treaty-Executing Power: Constitutional Complexities in Contemporary Global Governance

By Felizardo, Carlo | Northwestern University Law Review, January 1, 2016 | Go to article overview

The Modern Treaty-Executing Power: Constitutional Complexities in Contemporary Global Governance


Felizardo, Carlo, Northwestern University Law Review


INTRODUCTION

Perhaps one of the most contentious issues of constitutional law is the role of treaties.1 Treaties occupy a tenuous position both in the separation of powers between the branches of the federal government and in the balance between the national and state governments. Under the Supremacy Clause of the Constitution, "all Treaties made" are among the categories declared "the supreme Law of the Land."2 Article II furnishes the power to enter into treaties in the President, with the advice and consent of the Senate.3 Finally, the Necessary and Proper Clause of Article I grants Congress the power to enact laws in pursuance of those treaties.4

In the centuries since the Constitution's ratification, the United States' participation in multilateral treaties and agreements has skyrocketed.5 This ever-growing trend-one that shows no signs of stopping-highlights the importance of properly setting limits on Congress's treaty-executing power. Under a republican system, treaties are controversial because their writers are not always persons accountable to the people of the United States.6 Indeed, treaties are often written in significant part by officials from other countries.7 This lack of direct accountability should require more stringent constitutional scrutiny on Congress's attempts to apply treaties through legislation.

As a starting point, however, it is essential to define what a treaty is for the purposes of determining the content of the supreme law of the land. Doing so in the contemporary international order is ambiguous in at least two ways. First, treaties and agreements are not static creatures. Not only may they be amended, but especially when they establish organizations to enforce their provisions, they may also generate further pronouncements, including international court decisions and international organization legislation. While these pronouncements are not themselves the treaties, they are made under the procedural and substantive guidelines thereof. Examples include resolutions of the United Nations (U.N.),8 judgments of the World Trade Organization's (WTO) Dispute Settlement Board (DSB),9 and the triggering of Article 5 obligations under the North Atlantic Treaty.10 Such pronouncements by treaty organizations raise the question of how to determine if and when these become part of the law of the land as "treaties," and whether an act of Congress in pursuance of such a pronouncement is constitutional.11 Moreover, it is unclear what precedence within the hierarchy of laws in the United States these pronouncements should take. Should they be equivalent to the originating treaties or should they take lower precedence? If they are given lower precedence, how much lower than the original treaties should they be?

A second ambiguity emerges with the increasing proliferation of voluntary, rather than mandatory, multilateral agreements among nations. Whereas mandatory treaties lay out explicit requirements for signatories, voluntary agreements set goals that are either aspirational, indefinite, or both.12 One illustrative case is the Kyoto Protocol, which regulates signatory nation-states' carbon emissions through sliding-scale target emissions levels and reductions.13 The United States signed but did not ratify the Protocol, and thus the Protocol imposes no binding obligations on the United States.14 In a hypothetical world where the United States ratified the Kyoto Protocol, the sliding-scale nature of the obligations it imposes on members raises the question of the strength of carbon emissions laws Congress could enact to reach such targets. Is a law "requiring" the meeting of an "aspirational" or "voluntary" target under penalty a "necessary and proper" exercise of Congress's treaty-executing power? If a treaty target is wholly voluntary by its own explicit terms, with no real penalties for noncompliance, can Congress pass a strict law with severe criminal or civil penalties to meet that target? …

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