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Laurence Tribe on Textualism (and Congressional-Executive Agreements)
Michael Ramsey

In connection with an ongoing writing project, I have been re-reading the classic 1995 Harvard Law Review exchange on congressional-executive agreements between Laurence Tribe on one hand and Bruce Ackerman and David Golove on the other.  (108 Harv. L. Rev. 799 (1995) and 108 Harv. L. Rev. 1221 (1995)).  I was struck by this passage from Professor Tribe, which fits with some discussion on this blog last week: 

[I]t is often the case that, although there may be more than one linguistically possible interpretation of a constitutional provision, one of those possible interpretations may be the most plausible by a wide margin in light of structural considerations viewed against the backdrop of the history of the provision’s adoption.  In such an instance, one should not resort lightly to external and extraordinary theories of constitutional lawmaking such as those favored by Professors Ackerman and Golove. 

The reason is a straightforward one.  In a constitutional community devoted to government in accordance with a foundational legal text, adherence to text and structure provide immeasurably valuable safeguards.  These safeguards are best preserved by a commitment of the legal community to conduct our government in accord with the best interpretation of that text and structure.  If each textual ambiguity is viewed as an open invitation to leap outside the realm of text and structure altogether, there will be great temptation first to imagine ambiguity where little or none actually exists, and then to magnify whatever ambiguity one finds into something of far greater moment than is really there.  It is, after all, relatively simple to find indeterminacy if one looks carefully enough … As a constitutional community, we should place a high value not only on following the absolutely unambiguous commands of the Constitution, but also on seeking the best reading of any constitutional text, identified in terms of interpretive canons that are as immune as we can make them from the pushes and pulls of our own policy predilections.  (108 Harv. L. Rev., p.1279)

It’s a reminder that, although many conservatives identify Professor Tribe with living constitutionalism, he can – in certain moments anyway, and especially with regard to structural provisions – sound like a disciplined textualist.

I think Tribe had it right on the merits of the particular debate as well.  The question was whether congressional-executive agreements (international agreements made by the President and approved by majorities of both Houses of Congress but not two-thirds of the Senate) are constitutional under the original meaning, given Article II, Section 2’s statement that “He [the President] shall have Power, by the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur....”

Ackerman and Golove argued that Article II, Section 2 isn’t an exclusive means to make international agreements, principally because (i) Article II, Section 2 doesn’t say the President has this power “only” if two thirds of the Senate approves; and (ii) Congress’ power to make necessary and proper laws, especially read in light of McCulloch v. Maryland, is broad enough to encompass laws approving international agreements.

I think Tribe is right that both arguments, while perhaps “possible” readings of the text, are not the most plausible readings in light of text, structure and contemporaneous history.  As to the first, there are lots of places in the text where an exclusive power is intended but the text doesn’t say “only” – for example, the declare war clause doesn’t say “only” Congress has power to declare war, but basically everyone reads it this way.  (Even John Yoo, the most aggressive advocate of presidential war power, reads it this way – he just thinks “declaring” war means something different from initiating it).  In the founding period, it was well accepted (as it is now) that an affirmative grant of power to one entity can have the negative implication that other entities can’t exercise that power.  It’s true that in the founding era negative implications were disfavored – Hamilton said (Federalist 32) that to find a negative implication the concurrent exercise of the power had to be “contradictory and repugnant.”  But the treaty power, like the war power, seems to fit Hamilton’s description.  Making a treaty (like declaring war) creates an international situation that can’t easily be undone, so the exercise of power by one entity effectively removes the decision from the other.  Most importantly, as with war power, the historical evidence is overwhelming that essentially everyone in the founding era who expressed a view on the matter read the Article II, Section 2, power to be exclusive.

More importantly, on Ackerman and Golove’s second point, Congress has no power to make international agreements.  Congress exercises only legislative power (except where the text specifically says otherwise, as with declaring war).  In 18th century terms making international agreements was an executive power.  And if Congress itself can’t make international agreements, surely it also can’t authorize the President to make them.  Congress may be able to delegate some of its own power to the President, but it can’t delegate a power it doesn’t have in the first place.  Therefore, a law giving the President power to make treaties without the consent of two-thirds of the Senate isn’t “proper” because it alters the basic allocations of power in the text.  (Per INS v. Chadha, as Tribe emphasizes).  Note this is true even if Article II, Section 2, read in isolation, isn’t necessarily exclusive.  Regardless of what the negative implications of Article II, Section 2 may be, no other entity has an affirmative grant of power to make treaties.

Tribe makes a number of additional more sophisticated textual and structural arguments in his article, some of which work better than others, but the basic points are, I think, hard to parry.  (David Golove makes an attempt, in a reply article published at 73 N.Y.U. L.Rev. 1791 (1998), but I don’t think he makes much headway against them).

This conclusion in turn raises a question for originalists, though.  At least since the end of Second World War, Congress has approved a wide range of very important international agreements without the assent of two-thirds of the Senators present.  The North American Free Trade Agreement [NAFTA], which was the focal point of the debate among Tribe, Ackerman and Golove in the 1990s, is one example.  But the issue isn’t about NAFTA alone – the practice is a core element of modern U.S. foreign relations.  The Supreme Court hasn’t approved the practice directly in the modern era, but the “precedent” of the executive and legislative branches is very strong.  To what extent, then, should originalists push for a return to the original meaning in this area?  Or should they accept the change as in effect a constitutional amendment (which is what Ackerman and Golove contend)?