Adjusting Sovereignty: Contemporary Congressional-Executive Controversies about International Organizations
Tiefer, Charles, Texas International Law Journal
This article analyzes the controversies of Congress and the Executive regarding international organizations addressed in the 105th Congress of 1997-98 and, on some matters, in 1999. Today, U.S. sovereignty1 stands in a changing legal relationship with the major international organizations2 such as the United Nations (U.N.),3 the International Monetary Fund (IMF), and the global and regional trade arrangements such as the World Trade Organization (WTO).4 Currently, as these organizations present requests, demands, or opportunities to the United States, the response polarizes between a Congress attentive to American public attitudes skeptical of international commitments and an Executive Branch valuing the international opportunities from continued or deepened engagement.
A review of the 105th Congress allows a depiction of American sovereignty at an intermediate legal status between what it would be if it were defined wholly by congressional antagonism to, or executive engagement with, international organizations. The article calls this intermediate status "adjustable sovereignty." What characterizes this status is a series of congressional-executive interactions, neither disengaging from nor readily engaging with, international organizations. Rather, the congressional-executive interactions involve a host of issues and tactics that reify this intermediate legal distance, such as conditional commitments, delays, partial authorizations of military action mixed with symbolic negatives, and temporary lapses.
These executive-congressional interactions keep sovereignty at a level between the following opposing postures. On the one hand, if pure commitment-skepticism triumphed, U.S. decision-making would stand in complete independence of international organizations' claims characteristic of our domestic Constitution. That "rigid sovereignty" mode hoards in the Congress the decision-making powers on spending,5 war,6 and trade,7 for exercise by periodic discrete and unforced enactments on a case-by-case basis of appropriations, declarations of war, and trade barrier adjustments. It also preserves the fifty American states from constraint by international agreement.8 Rigid sovereignty would largely reject participation in international regimes, as the United States did in the isolationist 1920s.
On the other hand, a pure pro-engagement orientation could triumph where the United States viewed its previous treaties or other acts of coupling with international organizations as entailing unilateral executive branch decision-making favorable to further actions and commitments.9 In 1997-99, such a "delegated sovereignty" mode would let the president satisfy U.N. dues, IMF funding needs, NATO's Yugoslavian bombing and peace-keeping initiatives, and global or regional free trade initiatives. Such a vigorous pro-engagement stance characterized the United States early in, and at various times during, the Cold War period.
In looking at the 1997-99 conditional commitments, delays, symbolic opposition, and temporary lapses, an analysis of adjustable sovereignty supplements what might loosely be grouped as two other major approaches. One line of study, which may be called the "constitutional limits" view, relies on how the Constitution's text and original intent limit the infringement of American sovereignty by international organizations. For example, even if the United States enters trade10 or arms-control agreements11 that would give powers to officials of international organizations, the Constitution forbids actions by foreign officials that are constitutionally limited to duly-appointed U.S. executive officials12 in compliance with Fourth13 and Fifth14 Amendment constitutional obligations. In this view of sovereignty, the Constitution makes itself and the branches of the federal and state15 governments it establishes the sovereign authorities on spending, war, trade, and so on,16 not allowing-or at least disfavoring17-a shift of power to foreign countries or international institutions, regardless of agreements with them. …