Renegotiating NAFTA: A Response to Professor RamseyRyan Scoville

[Editor's note:  For this guest post we welcome Professor Ryan Scoville of the Marquette University Law School.]

Recently on Lawfare I argued that, from an originalist perspective, the President probably lacks power to renegotiate NAFTA without specific, prior approval from the Senate. The basis for this argument is that the Framers appear to have understood treaty negotiators as “public Ministers” and “Officers of the United States” for purposes of the Appointments Clause, and thus as individuals whose appointment requires the Senate’s advice and consent. In taking this position, I acknowledged the contemporary practice whereby the Senate endorses the selection of a handful of top officials at the Office of the U.S. Trade Representative, and I suggested that this practice helps to honor the original understanding insofar as it implies Senate consent to the initiation of any negotiations the appointees might pursue. But I also argued that the practice is materially different from the original model, which was for the President to obtain Senate approval in designating negotiators on the occasion of each and every separate negotiation. For this reason, I suggested that the contemporary approach is contrary to the original understanding of the Appointments Clause.

Last week Professor Ramsey took issue with part of this analysis. While agreeing that an official negotiator of a trade agreement would qualify as a public minister, he disagreed that fresh advice and consent is necessary on the eve of each new negotiation. As he put it, “Nothing in the Constitution says that offices cannot be created with general negotiation powers (as opposed to only specific ones).” I appreciate his response and admit that his argument is sensible. But I also think that Professor Ramsey dismisses my position too quickly. Consider a few points:

First, Professor Ramsey’s interpretation seems weaker in view of historical constraints on states’ discretion to ratify agreements. A number of leading writers on the law of nations (Grotius, Martens, and Bynkershoek, among others) held that signature triggers an obligation to ratify as long as the negotiator had followed his instructions in drafting the text. This principle operated in considerable tension with Article II’s provision for Senate advice and consent in the making of treaties, which is significant only if discretionary. But there is evidence that early U.S. officials were familiar with and at times invoked the principle anyway. If that evidence reflects a broader Founding-era acknowledgement of the obligation to ratify—either as a binding rule of international law or as a moral precept by which to satisfy the expectations of European governments—then it is at least plausible that the Founders perceived meaningful Senate involvement at the front end of the adoption process as the best opportunity for Congress to shape U.S. treaty obligations. It is precisely that involvement, however, that the conferral of general negotiating authority renders less frequent. Is it possible that the Founders would have nevertheless accepted such a practice? Certainly. But doing so would have further marginalized a Senate that already faced considerable international constraints on its discretion to advise and consent to ratification.

Second, Professor Ramsey’s position would seem to disserve the original purposes of the Appointments Clause. As I read his argument, a single act of advice and consent could suffice regardless of the number, content, importance, and foreseeability of the trade agreements the appointee might negotiate. As I read his argument, a single appointment could also suffice regardless of the succession of foreign governments with which the appointee negotiates and the domestic and international implications of those negotiations. But this would make it much harder for the Senate to vet nominees for competency. It would also complicate the task of policing for conflicts of interest. And it would limit opportunities for public debate over important questions of foreign policy.

Finally, it bears emphasis that the current model is not the original model. In the late eighteenth century, as Professor Ramsey seems to concede, the President did not nominate and the Senate did not approve the appointment of any individual to exercise roving, general authority to negotiate treaties. Instead, the Senate approved the designation of each negotiator shortly prior to each new negotiation. This approach enabled Senators to advise and consent to the appointments in an informed manner, with a specific negotiation in mind. True, the Constitution does not specifically say that such case-by-case approval is necessary, and the mere existence of a pattern of early practice does not necessarily mean that the Founders understood it as constitutionally required. But this practice was not merely occasional. It was the custom throughout the administrations of Washington, Adams, and Jefferson, and it manifested in relation to over two-dozen international negotiations. It is hardly a stretch to imagine that the practice would have acquired a certain normative gravity in these circumstances, such that departures would have been viewed with suspicion and even opposed on constitutional grounds.