Ryan Scoville on Renegotiating NAFTAMichael Ramsey

At Lawfare, Ryan Scoville (Marquette): The Appointments Clause as a Hurdle to the President’s Trade Agenda.  From the core of the argument:

As I see it, there is a fair argument that the President cannot renegotiate a trade agreement without specific, prior approval from the Senate.

The argument is based on the Appointments Clause, which requires the Senate’s advice and consent for the appointment of “Ambassadors” and “other public Ministers.” Many contemporary observers assume that the President holds independent power to appoint any and all U.S. negotiators of international agreements. On this assumption, President Trump need not, at least as a constitutional matter, seek advice and consent in selecting those who would renegotiate NAFTA or any other trade agreements because the negotiators would not qualify as “public Ministers” and “Officers of the United States” under the Appointments Clause.  

This assumption is not unreasonable. It draws support from the Justice Department’s Office of Legal Counsel and an apparently significant volume of modern practice. It is one that the Senate has done little to oppose in recent years. And it is functionally sensible as a position that facilitates the making of international agreements.

But it is likely at odds with original meaning. As I explain in much greater detail elsewhere, there is ample evidence that the Framers expected the President not only to obtain the Senate’s advice and consent in appointing those who would negotiate an international agreement, but also to do so for each and every separate negotiation. On this understanding, President Trump cannot pursue any new trade negotiations without first obtaining fresh advice and consent for the designation of those who would serve as the negotiators.

The logic of this position is straightforward: “public minister” is a term of art under the historical law of nations; the definition of that term plainly encompassed treaty negotiators; and the Framers appear to have understood that one who qualifies as a public minister for the U.S. government under the law of nations constitutes both a “public Minister[]” and an “Officer[] of the United States” as a matter of domestic constitutional law. Thus, the advice and consent of the Senate is necessary for the appointment of such officials.

I highly recommend Professor Scoville's article (linked in the above excerpt) on the original meaning of officers and public ministers. It has caused me to rethink and perhaps retreat from some strong positions I took in this article about the President's power to appoint informal representatives.  In particular, I think he is right that a person negotiating a trade agreement on behalf of the U.S. would be a "public minister" requiring Senate confirmation.

However, I don't follow the next step in the argument, namely that confirmation is required "for each and every separate negotiation" such that "President Trump cannot pursue any new trade negotiations without first obtaining fresh advice and consent for the designation of those who would serve as the negotiators."  Suppose there is an office that's created by Congress for the general purpose of overseeing trade negotiations, and a person is confirmed to that office by the Senate.  And suppose also that person has deputies (again, offices created by Congress) and people have been confirmed to those offices (or appointed as "inferior officers" pursuant to statute, as the Constitution allows).  Why can't those people negotiate specific trade agreements, as part of their general duties to oversee the negotiation of trade agreements?  I do not see anything in the Constitution that requires the appointment/confirmation to be done on a negotiation-by-negotiation basis.  It may well be true that in the immediate post-ratification period the Senate did confirm negotiators on a negotiation-by-negotiation basis.  But that does not prove it was constitutionally required.  It only proves that at that time there were no offices, apart from the Secretary of State,  with general negotiation powers.

Now, there are such offices, namely the Secretary of Commerce and the Secretary's deputies (and the U.S. Trade Representative (USTR), although currently the Senate has not confirmed a USTR and the status of the acting USTR is more complicated).  I do not see why the Commerce Secretary (the person appointed for the purpose of coordinating the U.S. negotiations on trade issues) and his deputies can't renegotiate trade deals such as NAFTA as part of their existing duties.  (This probably goes for the acting USTR as well).  If Congress creates a general office of trade negotiator, and the Senate confirms a person to that office, the appointments clause seems satisfied.  Nothing in the Constitution says that offices cannot be created with general negotiation powers (as opposed to only specific ones).

In sum, the best argument for the President isn't that trade negotiators would be informal and thus not subject to confirmation (which is wrong for the reasons Professor Scoville says it is); it's that there are already officers in place with general powers to negotiate on behalf of the United States, and nothing in the Constitution says that those officers must be appointed for specific negotiations rather than for negotiations in general.

(But again, the key to assessing this debate is Professor Scoville outstanding article).