How to Get a Breakthrough in Ukraine
The Case Against Incrementalism
"It is not the atomic bomb that will destroy civilization. But civilized society can destroy itself -- finally, no doubt, with bombs -- if it fails to understand intelligently and to control the aids and deterrents to coöperation." -- Elton Mayo
THE attention given by Americans to substantive policies in foreign affairs has increased greatly during the last thirty years, but the procedures by which our policies are made have received comparatively little attention.
During the first 150 years of our national history our major foreign policies were in the main unilateral in form, negative or merely declaratory in character and restricted in scope. Today they are dominantly coöperative, i.e., contractual in form, and involve positive undertakings as to men and treasure. There is no place, there is no subject, not touched by our concern.
There is, moreover, another sharp contrast with the past. We have become the foremost advocate of international organizations in all fields. Twenty-five years ago we regarded international organizations as hardly safe for anything more controversial than coöperative letter-carrying and hunting icebergs. Today there is hardly a phase of life not covered by an existing or proposed international agency. Support of international organizations is a logical counterpart of being committed to the principle that national interests can best be advanced by reaching agreement with the countries concerned with the other side of the same matters. The international organizations we know today are essentially organized forms of international coöperation. They remain negotiating rather than legislative bodies; their success depends on agreements being reached by the agents of sovereign states and on those agreements being ratified and given effect.
The interrelationship between policy and procedure in human affairs generally is recognized today. In the sciences, business and the professions, men have learned that the way you do things in large measure determines whether you really do them. Policy and procedure tend to fashion each other. Whenever policy and procedure get too far out of harmony, the interaction of one on the other usually works out a new equilibrium. But if this adjustment is left to time and "trial by battle," it is quite as possible that procedure will drag down policy as that policy will produce a more workable procedure.
The development of American foreign policies based on the principle of international coöperation, positive in content and carried out through international organizations, has both affected our procedures and created or revealed procedural inadequacies which are potential determinants of policy. The unending reorganization of the Department of State is one of the most obvious of many examples. Yet in the most important particular of all, policy and procedure are still badly out of harmony. The United States Government has yet to possess a regularly established and workable procedure for the democratic approval and legislative execution of international compacts.
This article is about the search for a treaty procedure which will serve our policy rather than determine or undermine it.
II. THE DECLINE OF THE TREATY PROCESS
The coöperative foreign policies of the United States are formulated today through three essentially different political procedures: 1. The treaty power, whereby the international compact must be approved by two-thirds of the Senators present. 2. The independent executive agreement, whereby the international compact is made by the executive branch without Senatorial or Congressional sanction. 3. The so-called joint resolution procedures, whereby the international compact is given prior authorization or subsequent sanction by a majority of both houses of Congress in some legislative form.
The perennial debate over these procedures centers around two different but related issues: whether and when the second or third procedure may be used instead of the treaty power; and whether the first, the treaty procedure, should not be changed by a constitutional amendment to make it more workable. [i]
It is not possible to disregard entirely the first issue and the legal thickets which have sprung up around Section 2 of Article II of the Constitution which states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." But the primary purpose of this article is to examine broader aspects of the situation and to argue the second issue.
The first issue is not academic. The executive agreement and so-called joint resolution procedures are constantly used today. Their use has paralleled the growth of coöperative foreign policies. During the first 50 years of our national life we were a party to relatively few international compacts, and of these more than two-thirds were handled by the treaty procedures; during the second 50-year period we had substantially more international undertakings, and the other procedures came to be used on the average a little more frequently than the treaty power; in the third 50 years of our history we entered into at least 15 times as many compacts as we had in the first period, and the ratio of the procedures used was reversed from two to one in favor of the treaty power to two to one in favor of the executive agreement and joint resolution procedures. Since 1939 both the policy and procedure trends have continued; the number of international compacts has sharply increased, and the ratio is now at least ten to one against the use of the treaty procedure.
This decline in use of the treaty procedure has not been limited to routine, unimportant compacts. Quite the contrary. The treaty power has increasingly been reserved for the routine, less controversial actions, with such notable exceptions as the United Nations Charter, acceptance of the Optional Clause of the International Court of Justice and the Peace Treaties. The Reciprocal Trade Agreements, the British Loan Agreement, American membership in the International Bank and the Monetary Fund, UNRRA, FAO, UNESCO and like matters of the largest import have recently been handled not by the treaty procedure but by some form of executive agreement coupled with prior or subsequent legislative sanction given by a majority of both houses of Congress. Likewise there are notable instances of the current use of the independent executive agreement such as the United Nations Declaration of January 1, 1942, a multilateral compact which contains precise commitments to the principles of the Atlantic Charter and against the making of a separate peace; the Lend-Lease agreements; the Yalta Agreements and the Potsdam Declaration. All of these are coöperative foreign policy acts of the greatest consequence to both the immediate and long-range interests of the nation. None of them was submitted as a treaty for the advice and consent of two-thirds of the Senators present.
These instances illustrate the clear influence of policy on the development of political procedures and legal forms in the conduct of American foreign affairs. The mere fact of this development is little known, and certainly its implications are not understood, outside a small circle of professional students and practitioners. The average well-informed American assumes that these measures were handled as treaties.
Some among those better acquainted with this development have drawn the conclusion from this record that policy can take care of itself, and that the flood waters of public support for coöperative policies will cut through or carry around any procedural obstacles. Unquestionably this is largely true -- so long as there are rising flood waters of public support. But it is likewise true that there is a long course ahead over which American democracy, and its coöperative foreign policies, must pass with reasonable smoothness and dispatch, and more often than not without the aid of public opinion at flood tide. We are at a point where necessary progress in world order requires that the processes of international coöperation, whether within or without international organizations, must approach the day-in, day-out workability and effectiveness of the domestic legislative process. It is nonsense approaching knavery to let a people go on believing that a nation can lead in world affairs today unless its government is equipped with clean-cut and effective procedures for reaching agreement with other nations. Do we have such procedures?
III. THE TWO-THIRDS RULE
The word "treaty" is arbitrarily reserved throughout this discussion for that procedure under Article II, Section 2, of the Constitution whereby the President is authorized to make treaties with the approval of two-thirds of the Senators present. In the course of the controversy as to what can legally be done outside this procedure, much ado has been made to the effect that the word "treaty" connotes some particular kind of international compact. Without venturing into that tangle of words and imprécisions, one can say with assurance that there is no generally accepted definition of the term "treaty," as used in our Constitution, except an international compact which has been submitted by the President for the advice and consent of two-thirds of the Senators present.
Certainly the treaty procedure is a clean-cut procedure, so far as the approval of the international compact is concerned. In fact, it is our only explicit constitutional means of approving international compacts. As will be seen, the joint resolution procedures in theory, and at their present stage of development through usage, are primarily lawmaking actions exercising some legislative power of the Congress. Only incidentally are they procedures for the democratic review and approval of international compacts, per se. Under the independent executive agreement there is, of course, no approval of the compact.
The treaty procedure is not, however, an equally clean-cut procedure for giving effect to the positive undertakings which today are the heart of most of our important international compacts. Leaving aside the legal frolics which have been had for 150 years around the question of whether treaties are "self-executing," it is now generally conceded that no important national commitments involving men, money and tariffs are going to be effective without legislative action by both houses of the Congress. This, of itself, is an inadequacy in the treaty power which has already rendered that procedure unsatisfactory for handling many of our most important international undertakings. And it is an inadequacy which will get worse rather than better as international relations improve and the content of international coöperation becomes ever more positive. To suggest that the answer lies in having both two-thirds rule action in the Senate and majority vote action in both houses, on all such international compacts, is a form of constitutional theology which has not been taken seriously since that formula was written into Section 4 of the Dingley Tariff Act of 1897 with the not unanticipated result, namely, nothing done.
Serious as is this defect in the present treaty procedure, it is as nothing compared to the inadequacy of the two-thirds rule as a workable political procedure for the democratic review of coöperative foreign policies.
Here one has to say honestly whether one believes the nation's interests will be best served by the further development of coöperative foreign policies. Those who lack confidence in these policies will probably regard the difficulties of the two-thirds rule as virtues. Such readers can make their own transpositions in the analysis from here on. The writer is of a contrary persuasion.
If the two-thirds rule is to be judged primarily on its statistical record, it comes off fairly well.[ii] Fewer than a dozen treaties having the support of a majority have failed because they fell short of a two-thirds vote. But if one makes a qualitative analysis of what was defeated and how; of what was mangled and where; and most especially of what was left undone and why (not to mention for the moment some of the larger intangibles in executive-legislative relations and the conduct of American foreign affairs), the two-thirds rule comes off very differently.[iii]
Important treaties which received a favorable majority in the Senate but fell short of the necessary two-thirds vote included the Treaty of Versailles and the League Covenant (1920); the World Court Protocol (1935); and the St. Lawrence Seaway Treaty (1934). The Versailles instance is so fouled up by the argument over the Lodge reservations that it is probably inaccurate to credit the two-thirds rule alone with a clean kill; but there is no doubt at all that it was in on the kill and helped to mangle the victim, which, incidentally, turned out not to be just the Treaty of Versailles but the entire range of American foreign policies for a quarter of a century.
Under the two-thirds rule each opponent of a treaty is, in effect, given two votes as against the single vote of each supporter. The record shows that this is a very serious handicap if the measure is at all controversial. In the normal course of things most treaties of any consequence will have some opponents who, regardless of party affiliation, have objections to the merits of the proposal. This, of itself, creates a hard pull on a two-thirds vote grade. But add to opposition on the merits the weight of votes lost owing to partisanship and to unacceptable reservations having been tacked on, and you have a load from which even the stoutest political wheel horses may well shy.
The latter two types of "extraneous" opposition are found to some degree, of course, under almost any legislative procedure. But they are especially virulent under the two-thirds rule.
The problem of partisanship and the place of party responsibility in the formulation of American foreign policies need more penetrating attention than they have received so far. Over the long pull they are much tougher problems of American statecraft than the citizen is led to believe from the nonpartisan or bipartisan coöperation evoked in times of crisis. The general problem cannot be factored here, but it is well to emphasize that the relationship of the two-thirds rule to partisanship is but one aspect of the broader problem. There seems to be a tendency on the part of some to regard the two-thirds rule and bipartisan coöperation in foreign affairs generally as standing in a cause and effect relation. But neither the record nor reason supports the idea that the two-thirds vote procedure is a cure for partisanship in foreign affairs. Professor Holt's study leaves little leeway for argument on our past record.[iv] The theoretical argument assumes that the two-thirds requirement necessarily works against partisan politics by forcing greater unanimity than would otherwise be present. It would be incorrect to say this never happens; but it is bound to be a relatively rare phenomenon, and when it happens it is usually at the expense of strong policies. The advantage of bipartisan coöperation on foreign affairs, wherever feasible, can be secured without putting our international compacts over a political steeplechase such as the two-thirds rule.
Actually unless the treaty is noncontroversial because of its innocuous subject matter or because of an abnormally widespread and intense public opinion on the issue, the two-thirds rule can be a fertile breeder of partisan opposition. In addition to those who sincerely support or oppose a measure on the merits, there are others who go along for "party purposes." It is these partisan votes in opposition to a treaty which cause so much trouble under the two-thirds rule. Under a procedure where each "nay" counts for two "yeas," it is no answer to say that there are both pro and con "partisan votes." It is this political handicap under the two-thirds rule which enables a fairly small but determined opposition in the Senate to turn almost any treaty issue into a close fight and thereby to some degree into a partisan issue. For partisan opposition does not usually come into full play unless there is a good chance that a treaty can be defeated and the President and his party thereby embarrassed.
During the World Court treaty fight in the Senate in 1935 these tactics were used by a small but skillful and determined opposition to help change the position of a few Senators who, while not previously opposed to American adherence to the Court, could not resist the opportunity which developed to join the "convinced opposition" and thereby give President Roosevelt and his party a political setback. In this instance it was a "promiscuous partisanship" on the part of a few opponents of the treaty. Nothing approaching a question of party responsibility was involved, since both parties were pledged to favorable action on the World Court and many minority Senators stood by the pledge. Under such circumstances the two-thirds requirement actually draws into our foreign policy decisions the most irresponsible type of partisanship by making any controversy on the merits a tempting chance for an easy political kill.
In the event of organized party opposition to a treaty, it is doomed. It is axiomatic that while the third or more of the Senate necessary to defeat a treaty may be held together for reasons of party, there is rarely even a theoretical possibility of getting two-thirds together to support a treaty on a party basis.[v]
No one can foretell the future rôle of the two-party political system in the formulation of American foreign policies. But an informed guess would certainly not leave out of the calculation either past experience or today's very large truth that there is no seamless web which is more seamless than American domestic and foreign policies. Perhaps politics will hereafter stop at the water's edge, but already there are many places in our foreign policies where it is difficult to know where the water begins and the land leaves off, and it is not going to get easier to tell as our coöperative policies become more and more positive in trade, finance, transportation, communications and similar fields. A foreign policy procedure which at best is workable only in a political vacuum, free from any threat of partisan infection, is not the best of all possible vehicles for the long pull ahead.
The other opposition technique whose virulence is increased by the two-thirds rule is the use of amendments and reservations to kill a treaty. As the Senate's rules have stood for many years now, amendments to a treaty may be attached by majority vote, but the final advice and consent resolution, as amended, requires a two-thirds majority. This technique can be used to whip-saw a majority favorable to the treaty. A majority, frequently made up of both supporters and opponents of the treaty, will accept one "pet" amendment after another for the purpose (so far as the supporters of the treaty are concerned) of trying to pick up enough votes for a two-thirds majority on the final vote. And then one of two things may happen: either the "amended treaty" becomes unacceptable to some Senators who were originally its supporters; or if the amended treaty is not thus defeated, the President may find that it is unacceptable to him or to the other country or countries involved. Many treaties, the cause of whose death remains officially undetermined, died in this manner. Moreover, the danger of death by amendment is particularly great in modern multilateral treaties, since such treaties, when "amended," must be renegotiated with not just one country, but probably fifty.
The principal objection to the treaty procedure, however, is not what happens to a treaty which actually gets to the Senate, but rather on the influence this procedure has in shortchanging the content of our coöperative policies and in weakening the operation of democratic processes in foreign affairs.
American Presidents and Secretaries of State, and their subordinates who perhaps worry most about these things, faced with a handicap procedure such as the two-thirds rule, have the following broad courses open to them: 1. Make few or no important international compacts; in short, abandon coöperative foreign policies. 2. Meet the nation's needs only in part, by diluting international compacts to the point where there is not a political cough in a carload. 3. Go underground with secret agreements and resort more and more to personal diplomacy with its informal, imprecise understandings behind vague public communiqués. 4. Carry on extensive and intensive public information campaigns to provide flood-tide support for occasional major treaty projects, such as the United Nations Charter. 5. Develop and use alternative procedures to the two-thirds rule treaty procedure.
In practice these courses are not exclusive. At one time or another Presidents and their Secretaries of State have used all of them, and not infrequently the same administration has used all at the same time in different fields of policy. Naturally enough, the first three courses are rarely openly avowed, and often they are probably not fully recognized as such by those who are forced into them. But anyone who is familiar with the day-to-day workings of American foreign affairs knows that the threat of our cumbersome treaty procedure has frequently blighted policy thinking at its very source. Responsible subordinates soon learn that Presidents and Secretaries of State have little time and less political stomach for proposals which are likely to involve them in an interminable treaty fight in which from the outset they are handicapped two to one. This is a circumstance which is literally serious beyond measure, because it means that without knowing it the nation is shortchanged in its policy needs by the only persons in a position to propose adequate coöperative foreign policy measures -- our negotiators and their aides.
No elaboration is needed of the possibility that the Executive, faced with the necessity of protecting our vital interests by agreement, but impatient or despairing of an unworkable review procedure, may turn more and more to personal diplomacy with its imprecise understandings and secret undertakings.
Likewise there is no need to relate here the extraordinary precautions taken to assure safe passage of the United Nations Charter through the treaty procedure. It went through without controversy on a flood tide of public support which could not possibly be aroused for any significant number of treaties, however important. Public understanding and support of policy measures are necessary under any review procedure; they are not substitutes for a workable procedure.
The patent inadequacy or inadvisability of these courses as solutions of the Executive's problem of conducting coöperative foreign policies under the two-thirds rule has led over the years to the use of alternative procedures.
IV. ALTERNATIVE PROCEDURES TO THE TWO-THIRDS RULE
A President has two such alternative procedures: (a) independent executive agreements; (b) the so-called joint resolution or legislative agreements.
Independent executive agreements[vi] go back to the earliest days of the country. The constitutional authority for them is implicit rather than explicit, and the most stable sanction behind them is the record of usage over the past 150 years. They clearly have a place in the conduct of American foreign affairs, particularly in respect to the military responsibilities of the Commander-in-Chief and the essentially ministerial and routine responsibilities of the President as the sole organ of the Government in international negotiations. But their rôle as a policy-formulating procedure is and ought to remain limited.
There is serious legal question as to the extent of this power. It is therefore a technique on which neither this nor any other government wishes to rely for major commitments, beyond the wartime powers of the Commander-in-Chief. Without either prior or subsequent Congressional sanction the agreements cannot in peacetime go far, if at all, into the stuff of positive coöperative foreign policies: men, money, and such things as tariffs.
While not wholly undemocratic, it is the least democratic of our foreign policy procedures. Except for the fact that the President is an elective official, it provides no opportunity for either prior or subsequent participation by the people or their legislative representatives in formulating coöperative foreign policies. It is therefore the weakest of our procedures for creating public understanding and support of our foreign policies. Congressional authorization or review of international compacts requires that the public and the legislature receive adequate information concerning our foreign affairs. Neither an unused treaty procedure (e.g. the two-thirds rule on many occasions) nor the independent executive agreement does this; and the resulting lack of public understanding and sustained support is serious beyond exaggeration. Contrast, for example, the precarious stability of the Atlantic Charter, of the United Nations Declaration of 1942, of Yalta, of the Potsdam Agreements, with the public understanding of and support for even such technical policies as the Reciprocal Trade Agreements and the British Loan Agreement where there was prior or subsequent Congressional authorization; not to mention the United Nations Charter which went through the Senate.
The use of independent executive agreements to avoid an unworkable treaty procedure or the controversial joint resolution aggravates Executive-Congressional jealousies. And, as noted, it lends itself to secret agreements and the imprecise understandings of an unstable personal diplomacy. It is manifestly not a suitable instrument for major policy formulation under our system; it is a dangerous last resort to which, in the interest of stable policies and democratic processes, the Executive should not be forced.
The so-called joint resolution or legislative agreements have a common characteristic: they are subject to prior or subsequent Congressional action by a majority vote of both houses. The nature of this action has frequently not been closely analyzed in the arguments regarding either the constitutional theory or the precedents on which the joint resolution procedure rests.
It is not the purpose of this article to argue the constitutionality issue, though some mention of it is necessary. There are many possible causes of mental disturbance these days, but few assaults upon human reason can equal in effectiveness the legal arguments surrounding the question as to which international compacts are "treaties" requiring the advice and consent of two-thirds of the Senators present and which can be sanctioned by a majority of both houses.[vii] Although some assert that the independent executive agreement may theoretically deal with any subject,[viii] few, if any, claim that as things stand today an international compact of this Government gets greater constitutional validity from being "authorized" or "approved" by joint resolution of both houses unless the agreement relates to a field covered by one of the legislative powers of Congress. By and large, the theoretical argument for the joint resolution procedure rests upon the view that Congress is simply legislating.
If the argument concerning the joint resolution procedure is kept narrowed down to a debate on the issue of constitutional power, the writer stands with those who uphold the legal power of the President and Congress together to act, internationally and domestically, as to any matter within the legislative powers of the Congress; and he believes the indications are clear that the courts take this position. But the question of the adequacy of the procedure as the basic policy-forming technique of American foreign affairs is broader and harder. The principal difficulty with the joint resolution procedure is that there is no commonly accepted understanding of just what it is or can be. Thus, every coöperative foreign policy action which rests on the joint resolution procedure is an actual or potential subject of political controversy on procedure as well as on its substantive merits. In so far as it has a defined existence, this alternative to the treaty procedure is a creature of usage. It is best understood, as it is best justified, by reference to what has been done under it.
There are three principal ways in which this procedure has been used to provide either prior authorization or subsequent sanction, explicit or implicit, for our international compacts.
First, there is the situation, for which the precedents are most numerous, where Congress exercises its legislative powers to give a prior sanction and domestic effect to agreements to be made by the President within bounds and policies laid down by Congress but without any subsequent reference of the concluded agreements to the House or Senate. The Trade Agreements Act of 1934 is the prime illustration of this type of action.
Second, there is the situation illustrated by the UNRRA agreement where the Congressional sanction took the implied and oblique form of incorporating the concluded agreement in the joint resolution authorizing an appropriation for the purpose. The Bretton Woods Bank and Fund Agreements and the British Loan Agreement were handled in basically the same way except that other legislative powers, in addition to the appropriation power, were involved; and, as is unquestionably better practice, these agreements, although previously negotiated, were not made effective as to this Government until after the Congressional action. In this type of action there is no explicit Congressional "approval" of the compact, as such.
Third, there is what might be designated the most advanced form of the joint resolution procedure whereby an international agreement, concluded by the Executive on an ad referendum basis as in the case of "treaties," is submitted for the explicit "approval" of Congress. As yet precedents for this "advanced form" of the joint resolution technique are rare. The pending St. Lawrence Seaway Agreement of 1941 is such a case.
The prior authorization technique is especially useful for joint Congressional-Executive action in the formulation of coöperative foreign policies. More effectively than any other technique available under our system, it gives the legislative branch an opportunity for taking a positive initiative in foreign policy formulation (rather than mere review) and thereby assures the Congress of an active voice in policy. In fact, this technique well applied is perhaps as close as we can come under our present practice to the advantages of the parliamentary form of government in the conduct of coöperative foreign policies where the responsibility and authority of the negotiator are at a premium. Its usefulness is limited, of course, by the fact that it is not a feasible method for all foreign policy problems. It is of especial value in technical fields such as the tariff, where bounds and general policies can be laid down for the negotiator and where legislative wisdom can operate more effectively and more courageously on questions of broad policy than it can, for example, on the multitude of complex actions in a concluded trade agreement.
The second, and especially the third, forms of joint resolution action are important because they provide subsequent Congressional review and sanction of important international compacts made on the initiative of the Executive and usually reflecting exigencies which could not have been foreseen and covered in prior legislation. Functionally, this is the classical rôle of the treaty procedure. Our need is for a procedure which serves this essential function through a workable and generally accepted political form. Without such a procedure, the American Executive (our negotiator) lacks the responsibility and authority of the representatives of either parliamentary or totalitarian governments. His disadvantage will be reflected either in inadequate agreements or in the derogation of our democratic processes.
Functionally, the joint resolution procedures are adequate techniques. Legally, the weight of the argument seems to be with those who uphold the power. But there is a great political flaw. As things stand, there is a perennial argument about bypassing the two-thirds rule; and the weight of that procedural argument falls, sometimes imperceptibly, sometimes with a dull thud, but always in the same place, that is to say, on the content of our coöperative foreign policies.
Here is the crux of the matter: there is no definition of general application as to form, scope, content, duration or legal consequence which can distinguish those international compacts which must be submitted to the Senate as "treaties" under the two-thirds rule, and those which may be treated as "agreements" and be given effect domestically by joint resolution action of both houses by majority vote. At least as to the vast majority of our important compacts which today touch some area of Congressional legislative power, the choice as between the treaty procedure and the joint resolution course can in truth be nothing but a political question. That being the case, there will be constant political objection in the Congress, especially in the Senate, to letting a President have a choice as to whether he proceeds by two-thirds rule or joint-resolution majority vote in submitting important international compacts for review and approval. And that objection, on grounds of prerogative and unconstitutional procedure, will be expressed in political opposition to many joint resolution agreements.[ix] So long as that condition exists, the joint resolution procedure is not and cannot become a routine, clean-cut method for the even-handed democratic review of coöperative foreign policies. It, too, is a handicap procedure, involving not the treaty procedure hurdle of a two-thirds vote, but the added weight of an extraneous political controversy over procedure and prerogatives. It, too, is in conflict with policy.
To sum the situation up:
The two-thirds rule procedure is neither workable nor does it enable the legislative branch to participate adequately in the formulation of positive foreign policies. It is a handicap procedure under which coöperative policies sufficiently consequential to involve some controversy are, in all probability, either stillborn within the Department of State; smothered to death by delay, reservations or amendments in the Senate; or defeated by a combination of convinced opponents and opportunistic partisans, an obstacle which can rarely be overcome when each "nay" counts for two "yea" votes.
The independent executive agreement has its place, but it involves no review by the legislative branch and is manifestly unsuited as a general procedure for the formulation of positive foreign policies under our system.
The joint resolution procedure raises the issue of Executive circumvention of the Senate's prerogatives. Since it is impossible to know beforehand just how this political issue will be resolved in any particular case, it is difficult for the Executive to negotiate international engagements with any sense of security. It is a serious trouble-breeder, not only between the Executive and Congress, especially the Senate, but also between the House and Senate. Finally, the joint resolution method is limited by the fact that so long as the explicit two-thirds rule stands in the Constitution, this method, resting on implicit power, cannot be conclusively established as the regular, unquestioned means of submitting international undertakings for legislative review and approval. Even its greatly increased use, which is inevitable in the immediate future, cannot change the fact that this procedure will remain an escape hatch.
If the use of force in international relations is to be elevated to the rôle of a united police power, the interests of nations are going to be realized through persuasion and agreement -- or they are not going to be realized, at least peacefully. That is the fact of international life today. No single factor in American foreign relations is at once both so seriously deficient and so exclusively and readily within our hands to remedy as the present state of our constitutional processes for reaching international agreement.
V. THE REPAIR OF THE "IRREPARABLE"
The heart of the trouble is the fact that so long as Article II, Section 2, of the Constitution says that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur," the authorization or review of international compacts by majority vote of both houses can never be completely removed from political controversy. The only remedy that can reach this trouble and correct it in time is a constitutional amendment.
There are several possibilities for changing the two-thirds rule by amendment. Some have proposed that the power be retained exclusively in the Senate, but that the "advice and consent" be by majority rather than two-thirds vote. This proposal has the merit of lowering the political hurdle, but it has serious deficiencies. It has no appeal for the House of Representatives, which must approve constitutional amendments by a two-thirds vote; and it would continue the existing inadequacy of the treaty procedure in matters where participation of the House is necessary to give legislative effect to positive undertakings.
The proposal with the widest appeal is that the "advice and consent" be given by both houses, by normal majority action. This proposal has a natural appeal to the House. Functionally, it is clean-cut and is adaptable. It eliminates the divergence between treaty and legislative procedures, thereby permitting, under the treaty procedure, full use of the present joint resolution techniques for either prior or subsequent legislative sanction of international engagements, as the circumstances may require. It corresponds to current practice and the inevitable trend toward greater use of the joint resolution machinery. This is of central consequence since it would mean a constitutional change which solved the problem by meeting rather than seeking to alter the natural course of affairs. It is based on the normal legislative process, and is thus a tried, proven and familiar political procedure. Few, if any, constitutional changes could involve less experimentation. It would assure more widely understood and more democratically supported foreign policies.[x]
John Hay regarded the two-thirds rule as the "irreparable mistake" of the Constitution. The historical explanation of the provision is still cluttered with more "good" reason than real ones, but today's evidence supports the following conclusions on the two pertinent issues:[xi] First, the treaty procedure was confined to the Senate exclusively because the treaty power was viewed as a right and concern of states, not of people, and accordingly the founders sought not a democracy of the people in treaty-making, but rather a continuation of the power in that body where the then "sovereign conscious" states were represented equally. Secondly, the treaty procedure was made subject to a two-thirds rule because under specific circumstances then prevailing (e.g. the Mississippi navigation and New England fisheries issues), the Constitution could not have been agreed on unless the continuation of a minority veto over treaties was assured.
The historical record cannot be analyzed here, but this can fairly be said: unless one holds[xii] that this nation in the decisive years ahead can afford the luxury of minority sectional vetoes over its national interests and international policies, there are today no valid historical reasons for associating the Founding Fathers with those who for other than historical reasons now oppose changing the two-thirds rule.
Perhaps the most plausible objection to changing the two-thirds rule stems from the argument that since treaties, unlike statutes, cannot be "repealed," their approval should require an extraordinary majority. The argument rests on the assumption that the larger majority in the Senate will assure a sounder, more perfect treaty with greater political and popular support to assure its observance in the future. The point merits attention, but careful analysis of it illumines and confirms, rather than impairs, the case for the amendment proposal.
First, it is relevant to recall that the two-thirds rule was not intended as a device to assure widespread popular support; in actual practice, review by both houses of Congress is a far broader base for public understanding and popular support of a public policy than two-thirds action in the Senate alone.
Secondly, the long-run support of a treaty in the country depends more upon this popular understanding and support than upon the number of Senators (especially not the difference between a majority and two-thirds) which at some previous time approved the treaty. And carrying this point further -- the true stability of international engagements is to be found in the quality of the treaty itself, i.e. the extent to which it really meets the international problem, and in the practical ability of the parties to adjust the treaty from time to time to meet changing needs and conditions to their mutual advantage. The latter is the only effective "repeal" remedy for unsatisfactory treaties.
As to the intrinsic quality of treaties, it seems reasonable to suppose that a handicap review procedure such as the two-thirds rule, which may force compromises involving inadequate or unsound answers to the problem, is not likely to produce as satisfactory treaties as a review procedure which does not require the life or the merits to be compromised out in order to give the treaty an even chance at ratification.
The greatest guarantee of the stability and enforcement of treaties, however, is the practical probability of adjusting the treaty by mutual agreement when changing circumstances require. And here the present issue comes to sharp focus. For us this "practical probability" is largely a question of getting a workable treaty procedure. With a workable, regularly established review procedure, treaties can be kept much more satisfactorily adjusted to the necessities of rapidly changing conditions than they can under a procedure which works to freeze a treaty or the lack of it into an unchangeable status quo. Frozen treaties are the ones whose enforcement causes trouble.
But the fate of an amendment is not likely to turn on such arguments. The convinced opposition to an amendment comes mainly from three sources: isolationism, state and sectional provincialism, and Senatorial "prerogativism." In addition, there are the opponents of any constitutional change; those who fear that certain Senators may be stirred to uncoöperative wrath if the issue is raised; and those who fear that the effort to get an amendment may cast doubt on the legality of the joint-resolution usages. There are even those who fear that a more workable treaty procedure might hamper the Executive's sway over foreign affairs because he would have to use it!
Isolationists are genuinely opposed to the further development of coöperative foreign policies, and there is only one honest line of argument, short of a complete conversion on policies, which ought to move them on this issue. They, too, have a stake in our democratic processes. No man who remotely understands the technical intricacies of this problem and the processes whereby American foreign policies are "made" today, regardless of where he stands on policy issues, can have any doubt that the outlook for democratic control of our foreign policies is poor, indeed, if this trial by battle between procedure and policy is continued indefinitely. Our procedures for reaching agreement with other nations today range from the dismal probabilities of the two-thirds rule, through the uncertainties and perennial controversies of the joint resolution procedures, to the probabilities and necessity of greater resort by the Executive to independent executive agreements and personal diplomacy. This is both fact and trend.
The great majority of Americans are today staking the national future and their individual futures on the ability of coöperative foreign policies to develop the minimum essentials of world law and authority. These Americans are more concerned about the soundness and success of our foreign policies than they are with ordinary questions of sectional interests or prerogatives. They will support this reform ardently if they are made to understand its bearing on the great question they have at heart. And this understanding is something which will have to be achieved primarily by the efforts of private persons having a substantial acquaintance in American foreign affairs.
There has been more interest in the matter, both in Congress and by the public, in the past three years than ever previously. In 1945, for the first time, the amendment to provide for approval of treaties by majority action of both houses was endorsed by the House Judiciary Committee and received a two-thirds vote by the House. It was not acted on by the Senate Judiciary Committee. Because of an ill-considered change made on the floor of the House requiring an absolute majority of all members, the form of the amendment as proposed ought to be reconsidered in the House in any event.
The House proceedings attracted widespread attention, and in the spring of 1944 samples of press and popular opinion showed some 60 percent favorable to the approval of treaties by majority action of both houses. Many leading papers, national organizations and individual leaders support the change and a number of state legislatures have memorialized Congress in favor of it. As a Vice-Presidential candidate, President Truman was reported as emphatically supporting the proposed amendment. [xiii]
The political leadership for the amendment must come from a bipartisan leadership in the Senate which really understands the magnitude of the consequences of a refusal to meet the situation straightforwardly. There is a growing number of Senators who see the clear advantage to the Senate, as well as to the nation, in elimination of a rule which, as Senator O'Mahoney stated, "has operated to expand the powers of the Executive at the expense of the Senate by steadily broadening the field in which foreign relations are conducted by Executive agreement rather than by treaty." [xiv] Perhaps the most serious deterrent to action now is the lulling effect of the U.N. Charter's untroubled passage and the probable passage of the Peace Treaties on the same flood tide. A look at the inventory of pending business and at the past record are healthy antidotes for complacence.
There have been few occasions in the past when the potentiality for enlightened bipartisan leadership on this issue was as good as it seems to be today. Neither the President nor the Secretary of State can safely take the initiative, or even be publicly candid about the problem. They have the heavy and urgent responsibilities of each day's business which must be put through as best it can with whatever procedures are at hand. They cannot be expected to jeopardize their daily relations with the Senate by assuming the leadership on a matter which some of certainty will seek to ignite into an issue of prerogatives. But the President and the Secretary of State could readily and effectively respond to the initiative of bipartisan Senate statesmanship.
Today's preoccupation in our foreign affairs is with the difficulties of negotiation and the reconciliation of major differences with other nations. These difficulties cannot be resolved by legerdemain, or merely by changes in our internal procedures. But we are committed by conviction and necessity to solving these difficulties, and then to seeking our larger opportunities, through the processes of international agreement. Today by any man's honest judgment our procedures for the democratic review and execution of international engagements are -- whatever the reason and legal arguments -- in an unholy mess. The true conflict is not between the Executive and the Senate, nor is the primary issue the undemocratic nature of the two-thirds rule. The real conflict is between our procedures and our policies; the issue is whether procedure should determine or serve our policies.
[i] On the pro side of the first issue see McDougal and Lans, "Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy," 54 Yale Law Journal 181 and 534 (1945); "Constitutionality of St. Lawrence Legislation," Memorandum submitted by the Department of State to a Subcommittee of the Committee on Foreign Relations, United States Senate, 79th Cong., 1st Sess.; and Wallace McClure, "International Executive Agreements," New York, 1941. On the second issue see Hearings and Report on Amendment to Constitution Relative to the Making of Treaties, Committee on the Judiciary, House of Representatives, 78th Cong., 2nd Sess.; Denna F. Fleming, "The Treaty Veto of the American Senate," New York: 1930; Kenneth Colegrove, "The American Senate and World Peace," New York: 1944. E. M. Borchard provides the main opposition literature on both issues today; see his "Treaties and Executive Agreements," American Political Science Review, August 1946, p. 729.
[ii]Cf. Royden J. Dangerfield's "In defense of the Senate," Norman: University of Oklahoma Press, 1933.
[iii]Cf. W. Stull Holt's "Treaties Defeated by the Senate," Baltimore: Johns Hopkins University Press, 1933. This is by all odds the best study of actual workings of the two-thirds rule. Cf. also DeWitt C. Poole, "Structural Improvements in the Administration of Foreign Affairs," Proceedings of American Philosophical Society, 1933, v. 72, p. 77.
[iv] As to both the record and reason, it is of interest that the only other countries using a two-thirds rule on the approval of treaties are Guatemala and Liberia.
[v] The fact that the framers of the Constitution did not foresee the rise of our two-party system is basic. "If the framers of the Constitution had realized that the members of the Senate would be divided into political parties to one of which the President would also belong, and that two-thirds of the members of the Senate would very seldom belong to the same party as the President, they would hardly have put the power of defeating treaties in the hands of one more than one-third of the members of the Senate present." Holt, op. cit., p. 12-13.
[vi] The lack of a uniform terminology is a symptom of the uncertainty and instability pervading the problem. The term "executive agreement" as used here is reserved for all international undertakings which are not submitted for the advice and consent of the Senate under the two-thirds rule. The word "independent" is used to identify those which do not rest upon either prior or subsequent Congressional sanction.
[vii] They have now reached the point where a protagonist of the two-thirds rule explains away certain joint resolution precedents with that magical word "waiver" -- the femme fatale of the first-year law student and the last resort of the practitioner. The suggestion that constitutional usage may be rebutted by viewing past departures from the two-thirds rule as "waivers" by the Senate of a constitutional requirement is surely the acme of neo-New Dealism or novelty in constitutional law. Cf. E. M. Borchard, "Treaties and Executive Agreements," American Political Science Review, August 1946, p. 732, and his argument against the St. Lawrence Agreement.
[viii] See McClure, op. cit.
[ix] The two dominant Republican figures in the Senate have been very clear that there is a serious issue here, and that the President does not have a choice. In reply to Senator Hayden's argument in connection with the Connally Resolution of 1943 that an agreement setting up a general international organization could be approved by joint resolution as well as by two-thirds of the Senate as a treaty, Senator Vandenberg stated: "I wish to make it totally plain that if I accepted his interpretation of the resolution . . . I would not vote for it, and if any President accepted the interpretation which the Senator has given I would favor his impeachment." Congressional Record, November 5, 1943, v. 89, pp. 9315-9317. In 1942 Senator Taft thought, "The line is shadowy but there certainly is a line." Congressional Record, December 3, 1942, v. 88, p. 9280.
[x] Among the more novel amendment proposals the most interesting is that whereby treaties which secure majority but fail to secure two-thirds approval in the Senate would go to the House and, if approved by a majority there, would become effective just as if they had secured a two-thirds vote in the Senate initially. Aside from its obvious advantages in removing the obstructive features of the present procedure, the main virtue of this proposal is its possible appeal to the Senate because it retains in part and in appearance the Senate's primacy. However, it is probably too novel and too complicated to have wide public appeal as an amendment; it may well have too little appeal to the House; and it is seriously deficient for the long range in that it would perpetuate and perhaps even widen the divergence between our legislative procedures for foreign and domestic policies, a gap which becomes more artificial each day and the continuance of which, of itself, will increasingly be a deterrent to straight thinking on national policies. Finally, it might result in our having two classes of treaties, legally and in degree of political prestige. There is, however, no reason why the doctrine of Missouri v. Holland need be disturbed by any of the amendments.
[xi] Charles Warren, "The Mississippi River and the Treaty Clause of the Constitution," 2 George Washington Law Review, 271 (1934). Cf. McDougal and Lans, op. cit., p. 536-549.
[xii] As apparently does E. M. Borchard, op. cit.
[xiii]Christian Science Monitor, October 4, 1944.
[xiv]Congressional Record, October 27, 1943, p. A4873.