University of Pennsylvania Law Review

May, 1989

Arms Control Treaty Reinterpretation: Commentary

*1481 THE SENATE'S PIE‑IN‑THE‑SKY TREATY INTERPRETATION: POWER AND THE QUEST

FOR LEGISLATIVE SUPREMACY [FNa1]

Lawrence J. Block [FNd1]

Lee A. Casey [FNdd1]

David B. Rivkin, Jr. [FNddd1]

Casey, and David B. Rivkin, Jr.

INTRODUCTION

The debate over ABM Treaty interpretation and reinterpretation into which Professor Koplow ventures is part and parcel of two much broader and dramatic confrontations: the struggle currently being waged over the direction of United States nuclear strategy and a battle between the Executive and the Congress over the formulation and implementation of American foreign policy. [FN1] Unfortunately, this broad policy context for treaty power disputes, far from helping to illuminate the underlying constitutional issues, appears to have injected passion, partisanship, [FN2] and strongly held doctrinal predilections into the discussion. *1482 When combined with the already existing considerable confusion about the precise parameters of the treaty power, the net result is the constitutional equivalent of a Serbonian Bog.

I. SEMANTIC CONFUSION AND THE NORMAL WORKINGS OF THE TREATY POWER

A. Of Power Sharing and Other Tall‑Tales

Much of the conceptual muddle regarding the exact parameters of the constitutional prerogatives of the two political branches in the treaty‑making area is attributable to semantic confusion largely created by the resurgence of ultra‑whiggish propaganda. [FN3] The precise use of words is always important in legal analysis and is particularly crucial in this area. Thus, Professor Koplow's main thesis, 'that the power to create treaty obligations for the United States is shared between the Executive and Legislative Branches' and that ' o nce an interpretation of a treaty has become entrenched in United States domestic law through the joint action of the Senate and President, it cannot be altered unilaterally by a reinterpretation sponsored by either branch alone' [FN4] is based on an assumption that the treaty‑making power is 'shared' by the President and the Senate. This assumptioin, while not technically wrong, is misleading. [FN5] The constitutional reality is quite different.

The Framers distributed governmental powers among the three branches subject only to such checks as the qualified veto of the President and the advice and consent function of the Senate. [FN6] In reality, although the term is used widely, the Framers did not place identical duties 'concurrently' in two or three branches of government. In other words, the responsibilities of the three branches do not 'overlap'; *1483 strictly speaking, there are no 'shared' or blended powers. [FN7] Instead, while power to accomplish certain ends itself may be 'mixed,' in James Madison's terms (that is, divided between branches such as the treaty power is divided between the Executive and the Senate), each branch has distinct cosntitutional duties and prerogatives. Thus, it follows that the treaty power is not a constitutional equivalent of an open market. Instead, both the Executive and the Senate wield certain specific responsibilities in this area and, as explained below, the responsibility to interpret treaties is solely vested in the President by the Cosntitution.

B. Constitutional Treaty Makers: The President, The Senate, and Foreign States

For over two hundred years it generally has been recognized that the President possesses inherent and plenary constitutional authority in foreign affairs. The principle textual source for the President's wide discretion to act for the nation in foreign affairs is Article II, section 1 of the Constitution, which simply provides that '[t]he executive Power shall be vested in a President of the United States of America.' This clause has been recognized to confer upon the President plenary authority to represent the United States [FN8] and to pursue its interests outside the borders of the country, subject only to the explicit limits set forth in the text of the Cosntitution and to such statutory limitations as the Constitution permits Congress to impose by exercising one or more of its enumerated powers. Thus, Thomas Jefferson, who generally disfavored an expansive view of presidential power, in construing the Constitution, wrote that ' t he transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, *1484 except as to such portions of it as are specifically submitted to the senate. Exceptions are to be construed strictly. . . .' [FN9] The executive power, therefore, includes all the discretion traditionally available to any sovereign in foreign relations, except in so far as discretion is placed in another branch of the government by the Constitution.

Arguably, treaty‑making is the paramount foreign relation power because it binds whole sovereign nations to future courses of action. Historically, this treaty‑making power has been seen as quintessentially an executive function. Thus, to John Locke, who greatly influenced the Framers of our Constitution, the 'federative' or foreign affairs power, which comprises in part 'leagues and alliances, and all transactions with all persons and communities without the commonwealth,' [FN10] should be wielded by the Executive because a legislature 'is not always in being and is usually too numerous, and . . . too slow for the dispatch requisite to execution' and because 'it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public.' [FN11] The Barson de Montesquieu, another political writer widely read by the Framers, wrote that the treaty‑making power is one of the governmental powers that should be wholly and exclusively Executive. [FN12]

Because treaties under the United States Constitution have the force of law, [FN13] however, the Framers believed it was inappropriate to vest a republican executive with unfettered treaty‑making power. To Hamilton, therefore, treaties under the Constitution were neither wholly an executive nor legislative function. [FN14]

*1485 The constitutional solution to this republican paradox was to place treaty‑making power in the hands of the President, conditioned and checked by the Senate's advice and consent role. The President would play the lead and unhindered role in the conditional negotiation of treaties, and the Senate would assure that the that the treaty would be in the nation's interest by recommending modifications ('advice') or by refusing to assent ('consent'). In other words, it was the view of the Framers that the 'joint possession of the [treaty] power . . . by the President and Senate would afford a greater prospect of security, than the separate possession of it by either of them.' [FN15]

More succinctly, with regard to treaty‑making, it was the intent of the Framers that both the Senate and the President have distinct and different powers bearing on this area. The President negotiates a treaty with foreign powers and submits it to the Senate for advice and consent.

Significantly, the advice component of the 'advice and consent' provision does not demand senatorial participation in all phases of treaty‑formation, such as negotiation. While Washington thought that the Senate could constitutionally function as an Executive or privy council providing advice to a President, as President he believed that *1486 the Constitution did not require consultation with the Senate prior to treaty‑formation. [FN16] In order to protect the secrecy of sensitive negotiations and avoid delay accompanying long drawn out debates in the Senate, early in his first administration Washington, upon the constitutional advice of leading members of his cabinet, changed his initial practice and took treaties to the Senate after they were made. [FN17] Unilateral negotiations by the President with foregin powers and Indian tribes left unchanged the Senate power to advise and consent after negotiations. The Senate could conditionally approve treaties by advancing 'advice' by way of amendments. Having obtained that advice and consent, the President then has the option of either ratifying or not ratifying the treaty. The Senate, in addition to consenting to or rejecting the treaty as submitted by the President, has the option of predicating its consent upon changes in the treaty's terms. [FN18] In fact, from the early days of the Republic, the Senate, rather than merely accepting or rejecting a treaty submitted by the President, began to request as a condition to its advice and consent that particular changes or clarifications to the treaty provisions be made.

The fact that the Senate may change a proposed treaty does not mean, however, that Senate can work its will in any way it pleases. Instead, the proper way for the Senate to attach a particular understanding to a treaty is to set forth that understanding in the resolution by which the Senate gives its advice and consnet to the treaty's ratification and to state in that resolution that its approval is given on the basis of that understanding. [FN19] And in order to ensure that any understanding or condition on which the Senate conditions its consent is given effect, the President normally must take steps to obtain and record the agreement of the other party to that understanding or condition. [FN20]

*1487 More specifically, if the President determines that the treaty, as a matter of international law, can be interpreted in accordance with the understanding reflected in the Senate ratification proceedings, he may either include that understanding in the instrument of ratification (or otherwise call it to the other party's attention) or not include it, as he sees fit. [FN21] Conversely, if the President decides that under international law, the treaty cannot be so interpreted, he then has no authority to ratify the treaty unless he accompanies it by a reservation conforming to the Senate's understanding. [FN22] In that event, of course, the treaty will *1488 not take effect unless the other party accepts that reservation.

The obvious purpose of this procedure is to allow the other treaty party to review the understanding attached by the Senate and decide whether to accept the Senate's understanding or to object to it. Should the other party assent to the treaty subject to the Senate's understanding, there then can be no doubt that the United States and the other party share the same understanding of the treaty. [FN23] By the same token, if the other party objects to the Senate's understanding, there can be no doubt that the United States and the other party do not share the same understanding of the treaty. According to the Restatement (Third): 'If a reservation is attached to a bilateral agreement at ratification, it constitutes in effect a rejection of the original tentative agreement and a counter‑offer of a new agreement. The other party must accept the agreement as revised by the reservation. . . .' [FN24]

Absent such an acceptance, of course, no meeting of minds between the treaty parties occurred, [FN25] and either negotiations will be broken*1489 without a treaty being brought into force or negotiations will continue until the parties have agreed on its terms, including any understandings on which the United States Senate still may condition its consent to the treaty. Significantly, the precise term ('reservation,' 'understanding,' 'condition' or the like) used by the Senate in its resolution of advice and consent is not dispositive; if the Senate intends to affect the legal obligations of the United States under the treaty, its action will have the same effect as a reservation, no matter what word is used. [FN26]

To ensure that Senate conditions of this sort are binding on both parties, 'in bilateral treaties, the United States has made it a practice to include in the ratification a statement by each party expressly stipulating its acceptance of the reservations, declarations, understandings, etc., of the other.' [FN27] This practice serves to ensure that the treaty to which the Senate has contested is the same treaty that the other contracting party has accepted and hence‑‑in the oft‑repeated phrase of the present Democratic Senate leadership‑‑the treaty made by the President is that treaty on which there has been 'a meeting of the minds between the Senate and the President.' Put another way, the President can make only that treaty to which the Senate has consented.

The Senate's role, however, does not extend to the implementation of a treaty and its consequent 'interpretation.' As Professor Koplow himself correctly observes, once a treaty is ratified, 'the President, as Chief Executive, bears the responsibility for faithfully implementing it.' [FN28] He alone determines in the process of implementing an international agreement what are the international obligations of the United *1490 States. It is solely the President, as the 'sole organ' of the United States in foreign affairs, who "interprets" treaties.' [FN29] The President, under the Constitution, 'has authority to determine the interpretation of an international agreement to be asserted by the United States in its relations with other states.' [FN30] The Senate's role is limited strictly to advice and consent‑‑to conditioning consent to the treaty by proposing modifications or to assenting to its ratification as originally submitted by the President.

The Senate has essentially no constitutional role in the subsequent interpretation of the implications under international law of treaties to which it earlier gave advice and consent. [FN31] As the Supreme Court stated *1491 in the leading case of Fourteen Diamond Rings v. United States, [FN32] 'the meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it.' [FN33] The same principle of construction applies to statutes. Thus, in construing legislation passed by Congress, the courts generally have refused to consider subsequent explanations proffered by members of Congress as to what the original legislative intent of Congress was or what the statute at issue was designed to accomplish. [FN34]

It follows from the above that the President, in exercising the duties of his office, from time to time may 'reinterpret' the meaning of a treaty under international law or interpret particular treaty provisions differently from prior Presidents, provided that in so doing he does not contravene an explicit understanding expressed in the Senate's resolution of advice and consent and accepted by the other treaty party. Indeed, Presidents have done so on more than one occasion. [FN35]

Contrary to this existing case law, professor Koplow maintains that Congress also "interprets" treaties when '[i]t assesses, as a domestic political and legal matter, what the document requires and what additional action should be taken within the constitutional scope of legislative *1492 powers to promote United States interests.' [FN36] This activity, however, is not 'interpretation' in the technical sense, which is determining, in the process of implementing a treaty, the international obligations of the United States. The Senate only 'interprets' treaties as anyone who reads an instrument must 'interpret' it by giving meaning to the words used. Certainly, during the advice and consent process, the Senate must construe the terms of the treaty in determining whether or not to grant its consent. Or, as Professor Koplow rightly notes, the entire Congress may construe a treaty where, for instance, it is not 'self‑executing' and requires legislation to carry out its terms. Construing the requirements of the treaty in the course of the legislative process, however, is very different from determining what the obligations of the United States are for purposes of international or domestic law and attempting to bind the President to that understanding.

In short, the law with regard to treaty interpretation is clear and straightforward: (1) only the President may definitively interpret the meaning of a treaty as a matter of international law; (2) the President can construe the treaty as a matter of domestic law, but only the courts may definitively interpret its meaning as a matter of domestic law in the context of specific cases and controversies; (3) the Senate has no authority to interpret a treaty, once it is ratified, as a matter of either international or domestic law; (4) if the Senate's resolution of advice and consent states a particular understanding of an as yet unratified treaty, the President may ratify the treaty subject to that understanding only, and the treaty will take effect only if the other treaty party accepts that understanding; (5) where, however, the Senate resolution contains no understanding, but the record of Senate deliberations establishes that the Senate attaches a particular meaning to the as yet unratified treaty, the President has the discretion to decide what, if any, international legal effect the Senate intended its record to have and to take appropriate action, or no action; (6) a Senate understanding not contained in the Senate's resolution of advice and consent and not formally accepted by the other high contracting party is not controlling in the interpretation of the treaty as a matter of either international or domestic law.

*1493 II. SACRED MYSTERIES AND TREATIES?: UNITED STATES DOMESTIC v.

INTERNATIONAL OBLIGATIONS

A. When do Minds Meet and Obligations Become Entrenched?

Professor Koplow has joined the ranks of a number of scholars who have strained to stitch together some colorable legal and constitutional arguments to support a claim of legislative supremacy with regard to treaty‑making. Their arguments differ in specifics, but are based generally upon a theory of the nature of a treaty that is little short of the mystical. With misplaced theological enthusiasm they argue that a treaty has two natures, a domestic nature as well as an international nature, the profane and the divine. As Professor Michael Glennon notes, 'the United States' domestic obligations under a given international agreement need not necessarily correspond to its international obligations.' [FN37] He argues further that whatever the international meaning of a treaty might be, for domestic purposes the President only can ratify the treaty to which the Senate consented, adopting the position of the Senate Foreign Relations Committee in Resolution 167‑‑the ABM Treaty Interpretation Resolution. [FN38]

The Committee's ABM Report deals with the problem in a startling fashion: it criticizes the Executive Branch's position on treaty interpretation, articulated by the State Department's Legal Advisor, Abraham Sofaer, and asserts that the official statements of the Soviet Union delivered through its authorized representatives during the ABM Treaty negotiations are essentially irrelevant to determining the treaty's meaning under domestic law:

The Legal Advisor's principal premise is the unequivocal assertion that a treaty's meaning derives from communications between the parties. This is true‑‑under international law. But it is not true under United States law.

. . .. The President cannot cause the United States to become a party to a treaty to which the Senate has not given its advice and consent. Nor can he cause the United States to *1494 become a party to a treaty different from the one to which the Senate has given its advice and consent. Thus, if the United States is to adhere to a given treaty, it can adhere only to the treaty concerning which a 'meeting of the minds' has occurred between the President and Senate. [FN39]

If the Committee merely intended to say that a President may bring into force only that version of a treaty to which the Senate has given its advice and consent, the point would be unobjectionable. But the Committee is saying much more. It is asserting that the Executive Branch is bound forever by a version of a treaty to which the Senate believes it gave its advice and consent, or in the case of the ABM Treaty, by that version to which the Senate Foreign Relations Committee sixteen years later says the Senate advised and consented, whether or not it is the version to which the other treaty party agreed.

It is striking that the debate has reached a point where the questionable doctrinal assumption that a treaty has two natures, one domestic and one international, imposing differing obligations upon the United States, merits so little discussion. Professor Koplow, while cautioning that 'very little is clear in this field,' [FN40] merely notes that domestic law can impose 'tougher restrictions on the United States than those compelled by our negotiating partners under the treaty.' [FN41] He then devotes himself to the practical problems of identifying when a particular senatorial 'interpretation' has become a binding species of domestic law.

Yet, the views of the Foreign Relations Committee, Professor Koplow, Professor Glennon, and others proceed from a fundamentally flawed premise. In Professor Koplow's view, an unwritten Senate understanding, so long as it is adequately 'entrenched,' becomes a part of the treaty and the law of the land. It is well accepted under the norms of international law, however, that to be binding, such 'understandings' must be 'formulated in writing and communicated to the other party or parties to the treaty,' [FN42] a point not strongly challenged even by the legislative supremacists. [FN43] According to Glennon, however, because the treaty has a domestic as well as an international nature, and they *1495 are not necessarily identical, the Senate allegedly need not formalize its understanding of the treaty's meaning. [FN44] As Professor Glennon argues, ' a t issue here is the President's obligation vis‑a‑ vis the Senate.' [FN45] Yet, as argued above, treaties have no independent domestic legal status separate *1496 from their status as international agreements; [FN46] there are not two sets of obligations, one domestic and one international. Any treaty creates only one set of international obligations, which may have a specific domestic impact; the United States may be obligated to take or refrain from certain domestic actions only in order to comply with its international obligations.

B. The Supremacy Clause Revisited

Turning to a related point, it is true that treaties are the 'supreme Law of the Land,' but the argument that any written provision of a treaty, debate in the Senate, or testimony before the Senate concerning a treaty provision is also the supreme law of the land by extension is clearly spurious. The Supremacy Clause is the wrong edifice upon which to base the two‑treaty construct suggested by Professor Koplow and others. [FN47] It grants neither the President nor the Senate any additional treaty‑making authority, and does not purport to fashion another form of domestic law‑making. As the Court of Appeals for the District of Columbia Circuit emphasized in Goldwater v. Carter, [FN48] treaties are 'sui generis,' not just another law. ' I t is thus well to distinguish between treaty‑making as an international act and the consequences which flow domestically from such act.' [FN49]

The original purpose of granting treaties the status of 'supreme law of the land' was not to create an additional vehicle for domestic legislation, one excluding the House of Representatives. Rather, as stated above, the Framers' objective was to enable the federal government to comply with the international obligations of the United States without interference from the states. [FN50] This apparently had been a serious problem during the Confederation period. To cite one interesting example, in 1783 an individual sued in the New York courts under a state statute allowing dispossessed patriots to sue loyalists for compensation. *1497 The young Alexander Hamilton represented the defendant, arguing that the state statute in issue was invalid because the Treaty of Paris provided a mutual release of such claims. The state court ruled against Hamilton's client, noting that it was required to follow the state law although it did opine that the treaty probably was controlling. [FN51]

The Framers made treaties the supreme law of the land precisely to avoid the repetition of such controversies. Once entered by the United States through the process provided in the Constitution, they take precedence over state laws and constitutions. [FN52] Neither individual states nor citizens may take actions putting the United States in violation of its international obligations. The treaty‑making process is not an independent means of domestic lawmaking, elevating part of the treaty‑making process not actually included verbatim in the text of the treaty, such as testimony, to the level of law. It does not allow the President and the Senate to circumvent the House of Representatives. [FN53] As the Goldwater court cautioned,

[t]he fact that the Constitution, statutes, and treaties are all listed in the Supremacy Clause as being superior to any form of state law does not mean that the making and unmaking of treaties can be analogized to the making and unmaking of domestic statutes any more than it can be analogized to the making or unmaking of a constitutional amendment. [FN54]

*1498 C. How the Laws are Made and Not Made

Arguing reductio ad absurdum, the key point of why the treaty‑making process cannot be used to increase the purely domestic legal obligations of the United States also can be illustrated by demonstrating the profoundly unconstitutional results of such an arrangement. First, the 'two treaty' argument would lead to the unacceptable result that the Senate could introduce new terms into a treaty and make those terms binding on the President, even though the other treaty party never agreed to those terms. Indeed, under this approach the Senate could obtain such a result merely by sprinkling the ratification record with floor speeches, hearing testimony and the like, on the basis of which one could argue later that the ratification debate supported the purported Senate understanding at issue. Such an approach would amount to unilateral senatorial treaty‑making by ambush and is clearly impermissible. As Mr. Justice Brown stated in concurring with the majority decision in Fourteen Diamond Rings v. United States:

In its essence [a treaty] is a contract. It differs from an ordinary contract only in being an agreement between independent states instead of private parties. . . . Obviously the treaty must contain the whole contract between the parties, and the power of the Senate is limited to ratification of such terms as have already been agreed upon between the President, acting for the United States, and the commissioners of the other contracting power. The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratification conditional upon the adoption of amendments to the treaty. [FN55]

Second, such an approach would make a mockery of the constitutional principles governing the enactment of legislation. Professor Koplow appears to be quite oblivious to the constitutional deficiency of the arguments advanced to support the theory of asymmetrical treaty obligations. He merely seems to assume that such a duality is a self‑evident *1499 proposition and primarily concerns himself with a secondary issue: how the Senate, the President, or both, can create or modify a domestic treaty obligation without altering the international bargain involved. Koplow's answer is that an interpretation, clarification, or understanding of the treaty terms, however, manifested and however disconnected from what the parties to the treaty agreed, acquires the status of domestic law once they become 'entrenched':

Despite these practical problems of establishing the existence and terms of an unwritten Senate understanding, once such an understanding has been shown to exist, there is no conceptual difficulty in assessing its legal status. The Senate's understandings and conditions, however evidenced, are fully binding upon the President once the treaty is 'made.' The Senate's view of the treaty, whether explicit or implicit, is an integral part of the treaty, and the President cannot proceed to ratification on any other terms. [FN56]

The implications of this astounding statement are far‑reaching indeed. Professor Koplow's theory confuses the domestic impact of a treaty with domestic law‑making and would be nothing short of revolutionary if it were accepted. In fact, the Constitution does not recognize a variety of means of domestic lawmaking, it recognizes only one: the ordinary legislative process where bills are passed by the House of Representatives and the Senate and signed by the President (or passed over his veto). There are enactments other than statutes that may have the force and effect of law, such as the rules and regulations of executive agencies. [FN57] Professor Koplow, however, posits a system where the President or the Senate, acting alone, create domestic legal obligations that would bind the President in his implementation of the treaty. The Constitution provides for no such process. [FN58] Indeed, it is ironic that *1500 modern day 'ultra‑whigs,' masquerading as defenders of legislative power, seem prepared to flout the fundamental principle of American republicanism‑‑that the only valid laws are those properly enacted by Congress, in the exercise of its enumerated powers, and brought before the President, who either acquiesces or vetoes the legislation.

If the Senate Foreign Relations Committee is to be believed, however, the Senate alone could make legislation by tacking on any provisions it wished to a treaty or by inserting an 'understanding' into the ratification debate that effectively added new provisions to the treaty, albeit purely of domestic import. [FN59] Under such a scheme the Senate *1501 could completely cut the House of Representatives from the legislative process. For that matter, the President himself could use such a scheme as a ruse for bypassing the House with legislation that expected to win Senate approval but that was unlikely to pass muster in the House. It is interesting to speculate, for example, what the reaction of congressional Democrats would have been had President Reagan decided, for example, to conclude a treaty with Honduras containing an extra domestic provision permitting the United States Government to support the Nicaraguan Democratic Resistance. In fact, one easily can envision a treaty loaded like a Christmas tree with all sorts of domestic provisions‑‑something akin to the regrettably popular omnibus continuing budget resolutions that sweep everything into their vortex. The profoundly unconstitutional nature of such arrangements should be self‑evident.

III. HOW MUCH LEGISLATIVE INTENT IS ENOUGH?

Once the interpretation is 'entrenched,' Professor Koplow asserts, '[t]he Executive's attempt to reinterpret established aspects of a treaty is an unconstitutional usurpation of power.' [FN60] Quite aside from the constitutionally flawed nature of Koplow's basic assumption, to wit, the permissibility of asymmetrical domestic and international obligations, his scheme for determining whether a particular 'interpretation' has become 'entrenched,' and therefore a part of domestic law, is also very problematic. No attempt will be made here to analyze each of Professor Koplow's eight factors to be considered in determining whether a particular interpretation has become entrenched. [FN61] Admittedly, he states that none would be necessarily dispositive alone. It is evident, however, that in his view some are more influential than others. First, Professor Koplow places particular emphasis upon the statements made during the debate on the treaty by 'key Senators,' stating that if they paid particular attention to the matter in question, and if it seemed to be an important factor inf their decisions how to vote, then this understanding 'should be more entrenched in the law.' [FN62] Here it is possible to draw 'meaningful inferences' casual comments and even from silence itself: 'a very small number of explicit comments . . . should be powerful *1502 evidence.' [FN63]

Unfortunately, Professor Koplow's method fails to take account of how legal obligations actually are brought into being. According to Koplow's statutory interpretation method, '[i]f Congress had a specific intention and a court can deduce from these secondary sources what that intent was, then that intent is binding and becomes part of the statute or treaty.' [FN64] This purely subjective approach to statutory interpretation ignores the realities, not to mention the legalities, of the legislative process. Even if intent can be proven beyond all doubt, it does not control. It is the actual language of the enacted legislation that is the law, not the unenacted intent of the legislators. [FN65] Koplow's infatuation with legislative history admirably points to the very reason that courts are wary of its use and proceed cautiously. Under the best of circumstances, as Justice Scalia aptly noted, legislative history is a 'frail substitute for bicameral vote upon the text of a law and its presentment to the President.' [FN66]

Moreover, ordinarily legislative history is far from clear and is often contradictory. As Justice Jackson once observed, '[i]t is a poor cause that cannot find some plausible support in legislative history.' [FN67] Indeed, the assumption underlying the use of all legislative history is that it may reflect legislative intent. This further presumes that there was some 'intent' upon a particular issue. As in the case of the ABM Treaty, however, when a subsequent controversy arises it is probably precisely because the Senate did not address the particular issue. An analysis following Professor Koplow's theory then must search for a few fragments of legislative history and ultimately is reduced to reliance upon the views of a few isolated members.

Clearly, the individual statements of a few Senators, however much they may care about the point in issue or however much they may repeat their views for the record, are not dispositive or even very helpful. Only the Senate as a whole, or at least two‑thirds of that body, can insist that a reservation or an understanding be attached to a treaty. Here Professor Koplow's system appears to exalt the opinions and *1503 wishes of individual Senators over that of the entire chamber, views that may well have been rejected by their colleagues. As Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit wrote not long ago, '[s]tray comments by individual legislators, not otherwise supported by statutory language or committee reports, cannot be attributed to the full body that voted on the bill. The opposite inference is far more likely.' [FN68]

The second of Professor Koplow's factors is statements made to the Senate by Executive Branch witnesses during the ratification process. These, Professor Koplow notes, 'can be especially compelling in generating a senatorial understanding or interpretation.' [FN69] Both the formal section‑by‑section analysis presented to the Senate and informal statements such as the statements of outside experts will be important. Again, this reverts to an estoppel argument.

Under this construct, representations made to the Senate by the Executive during the advice and consent process become a binding part of the treaty. This view has a certain superficial appeal: if the Executive has led the Senate to believe that a treaty means one thing and the Senate grants its consent based upon these representations, then he should not be able to change his interpretation later. [FN70] The creation of an extra‑constitutional lawmaking process scheme of senatorial control of treaty interpretation, however, is unnecessary to deal with those instances where the President has misled the Senate.

IV. POLITICAL PROCESS v. CONSTITUTIONAL SHORTCUTS

A. The Senate's Strawmen

The legislative supremacists are particularly adept at constructing a truly ingenious 'parade of horribles.' For instance, in addition to the ever present spector of a nefarious President seeking to obtain the Senate's consent by trickery favored by Professor Koplow, Professor Glennon paints a bleak picture of future treaty negotiation and ratification:

Hereafter the Senate would feel compelled to demand the negotiating record to every treaty to satisfy that nothing *1504 therein contradicted the public assurances of the Administration. Or, the Senate would feel compelled to incorporate into its approval of every treaty a reservation for every jot and title in the Administration's public statements as to what the treaty means, lest those statements later be disavowed in favor of a secret negotiating record. The impact on American diplomacy would be devastating. [FN71]

Likewise, Koplow asserts that:

Many in the Senate felt that the Sofaer Doctrine presented unpalatable choices: if authoritative administration testimony was not automatically binding, then, in order to guarantee that any particular point of interpretation would be reliable in the future, the Senate might have to recite its understanding with a condition or other explicit declaration in the resolution of ratification. There might be a great many points where the Senate would want to insist upon entrenching a durable interpretation. Accordingly, dozens or even hundreds of such conditions might be needed to expressly affix to the resolution of ratification virtually everything that Executive Branch officials had asserted to the Congress.

Moreover, under these circumstances, the Senate might additionally feel obligated to scrutinize the entire classified negotiating record itself, to ensure that the Executive Branch testimony fairly and accurately represented the true nature of the United States‑Soviet understandings. This would require elaborate inspection of voluminous, disparate negotiating documents, a laborious and time‑consuming function that the Senate would not be well‑equipped to perform. [FN72]

Koplow's basic argument is that the President cannot be free to 'reinterpret the international obligations of the United States at will, *1505 since this would allow him to circumvent the advice and consent process.' [FN73] As Glennon expounds upon this theme, the President exceeds his constitutional authority when he adopts an interpretation different from of the Senate that consented to the treaty: ' s uch an act is thus not truly an 'interpretation' at all‑‑it is a violation of the Treaty Clause.' [FN74] They argue that if the President is free to reinterpret a treaty, then he could mislead the Senate as to its meaning and obtain advice and consent under false pretenses. [FN75]

It is worth noting that these arguments are designed to guard against a threat that is likely never to arise. The chances of a President deliberately misleading the Senate regarding the meaning of a treaty are little short of fantastic. The very openness of the process, the number of people involved in the negotiation and ratification of a treaty, not to mention the attitude of the other party, make such a scenario virtually impossible. Indeed, the present controversy was not sparked by charges that either President Nixon or President Reagan misled the Senate regarding the interpretation of the ABM treaty. The issue arose from unforeseen changes of circumstance and technology, some less than precise treaty language (reflecting the failure of the parties in 1972 to agree on the issue), and an honest difference of opinion on whether America should be defended against nuclear attack. Such changes of circumstance cannot be guarded because by their very nature: they are unforeseeable. Essentially, adopting the construct advocated by the ultra‑whigs only supports the Senate's ability, under the guise of treaty interpretation, to force its foreign policy preferences upon the President at a later date; it does nothing to bring a miscreant Chief Executive to account.

B. How to Do Things Right‑‑A Primer for the Senate

In the final analysis, the Congress in general, and the Senate in *1506 particular, is not without recourse to ensure through proper constitutional means that its own interpretation of a particular treaty will prevail. [FN76] Clearly, the Senate may insist on a particular interpretation of a treaty before giving its advice and consent. This process has long been recognized in the Senate's attaching 'reservations' and 'understandings' to a particular treaty. As Professor Glennon himself wrote only five years ago, if the other party accepts these conditions, 'both the text of the treaty and the Senate's conditions take effect internationally and, if the treaty is self‑executing, become the law of the land.' [FN77] If these conditions are not accepted by the other party, the President may not proceed to ratification and the treaty is rejected. Of course, this process requires careful legislative work‑‑a task that has become increasingly unpopular these days.

In essence, the Senate has two legitimate ways to deal with a treaty. First, it can approve the treaty as is, without paying too much attention to the fine print, and rely on the Executive's good sense to have struck a good bargain for the United States. In the current atmosphere of intense partisanship and executive‑congressional tensions, however, not many important treaties are likely to be handled this way. An equally legitimate alternative is for the Senate to roll up its seleves and to cross all the 't's and dot all the 'i's in the treaty. [FN78] If they mistrust the Executive and want to limit his flexibility in interpreting the treaty, they are free to attach an endless host of conditions, clarifications and understandings. [FN79] There is a price to be paid, of course: *1507 Senate creative efforts have to be communicated to and accepted by the other treaty party. A treaty or two might be scuttled in the process and the United States might suffer international embarassment. Yet, such efforts are perfectly legitimate from a constitutional standpoint.

What is completely illegitimate, however, is to search for unconstitutional shortcuts. Yet this is precisely the approach preferred by legislative supremacists: create an all‑purpose legislative history, treat every statement by the Executive Branch witnesses as binding, and declare yourself to be the ultimate arbiter of what the original 'entrenched' interpretation is. As a result, the ultimate responsibility is avoided while ultimate power is retained. Under the guise of assuring fidelity to the original interpretation, the Senate can block any efforts by the Executive Branch pertaining to or impacting upon the subject covered by the treaty, and Fourteen Diamond Rings is avoided neatly. The net result is the unfettered power to control the Executive without any need to perform tedious legislative work or incur political costs‑‑ a veritable senatorial Shangriola.

The complaints of the critics that without the two‑treaty construct, the Senate would be a helpless victim of the Executive are also disingenuous. Even after the treaty has been ratified, the Senate at any time may join with the House of Representatives and force a President to accept its interpretation of a treaty (assuming there are sufficient votes to override the President's veto). Professor Koplow himself admits that '[o]rdinary legislation probably could have provided a suitable battle‑ground,' [FN80] and that this may be the 'superior' [FN81] method. Nor is the Congress completely unfamiliar with how to tie the Executive's hands on the treaty interpretation issue through the use of separate legislation. This is precisely what it did by prescribing the de facto compliance with the narrow interpretation of the ABM Treaty in the Fiscal Year 1988‑89 National Defense Authorization Act. [FN82] And it is certainly the 'superior' method since it is constitutionally proper. [FN83] In general, *1508 the legislative authority of Congress gives it ample tools with which to engage an overreaching Chief Executive. As Judge Bork has remarked, members of Congress who are dissatisfied with the President's performance traditionally have proceeded by 'oversight hearings, budgetary restrictions, political struggle, appeals to the electorate, and the like.' [FN84] Further, if it can be shown that the President purposefully deceived the Senate, this well may be grounds for impeachment. Finally, advice and consent on a treaty achieved by fraudulent means may be invalid and lead to a subsequent dissolution of United States treaty obligations. [FN85] The fact that this whole process is unwieldy and cannot always ensure a Senate triumph is not a valid objection. These are the means provided in the Constitution.

It is important to realize that when the President or his representatives provide certain assurances about the treaty's interpretation or related policy issues to the Senate during the treaty ratification, they are engaging in a purely political exercise. Inducements and promises are very much a part of the normal legislative process, and treaty‑making is no execution. Both the Executive and Congress regularly extract political commitments from each other to secure favorable action on legislation. Some of these promises are kept; others fall by the wayside. The key point is that the enforcement of political promises also ought to be done through the give and take, carrot and stick, of the political process. [FN86] Regrettably, the Senate in the treaty power dispute and Congress *1509 in many other confrontations with the Executive have manifested a clear desire to avoid the rigors and costs of political combat, preferring instead to cloak themselves in a pseudo‑ constitutional garb.

Legislative supremacists also would do well to acknowledge that legislative perfection, defined as a process that invariably and forever guarantees policy outcomes to the liking of every legislator, is unattainable [FN87] and has never been a part of the constitutional scheme. Thus, a statute or a treaty, no matter how careful the legislative process, might contain ambiguous provisions and, because of mistakes or unforeseen circumstances, might well fail to effect the policy goals the President and the legislators intended to effectuate. The proper recourses in such instances are to rely on the Executive to use his judgment and in good faith to execute the laws to meet new policy challenges as they arise. Should it become necessary, the Congress also may have to go back to the legislative drawing board or the negotiating table to enact new statutes or to negotiate a new treaty. It is, however, certainly inappropriate to adopt such legislative shortcuts as the creation of amorphous legislative history, to be used by the Senate in the case of treaties, or by Congress in the case of statutes to dictate to the President how to execute the duties of his office. To the ultra‑whigs, this approach may be politically expedient, yet it is neither constitutional nor good public policy because it subverts the very essence of the American democratic legislative and political process.

[FNa1] The views contained herein are those of the authors and do not necessarily represent the positions of the Department of Justice or of any other agency of the Unites States Government.

[FNd1] Senior‑Attorney Advisor, Office of Policy Development, United States Department of Justice; B.S., University College, New York University, 1976; J.D., The John Marshall Law School, 1981.

[FNdd1] Senior‑Attorney Advisor, Office of Policy Development, United States Department of Justice; B.A., Oakland University, Rochester, Michigan, 1979; J.D., University of Michigan Law School, 1982.

[FNddd1] Senior‑Attorney Advisor, Office of Policy Development, United States Department of Justice; B.S.F.S. and M.S., Georgetown University School of Foreign Service, 1980, 1983; J.D., Columbia University School of Law, 1985.