In his Op-Ed article on the U.S.-Iraq Declaration of Principles for Friendship and Cooperation, Bruce Ackerman overly minimizes the place of sole executive agreements in American constitutional law. The agreement in question appears far less controversial than Ackerman suggests when considered in light of presidents' constitutional diplomatic powers.
Ackerman claims that "there is no constitutional provision or precedent authorizing this new form of Bush unilateralism," and calls the Declaration of Principles a "constitutional farce." But executive agreements declaring principles or establishing a diplomatic framework pose no crisis for either the rule of law or the separation of powers. Even scholars and policymakers most jealous of congressional prerogatives generally concede that under the Constitution the president is the chief diplomatic officer of the United States.
Still, what a president can accomplish in carrying out an executive agreement is limited by what he can do under the Constitution he cannot, for example, withdraw money from the U.S. Treasury except pursuant to statute. Bases require congressional appropriations, and should a president wish to begin (or maintain) a base abroad, he would have to go to Congress. Inasmuch as any agreement with Iraq might involve bases, it would surely be what is known as a "non-self-executing" agreement. On the other hand, if it is merely a statement of policy or establishing a framework for "normalized bilateral relations," it would seem to be well within the president's constitutional authority as chief diplomatic officer.
Ackerman claims "the administration's approach here could tie the hands of the victor of the 2008 presidential election. If a Democrat wins and seeks a new course in Iraq, he or she would be obliged to break an international commitment." This concern seems misplaced. The president acting alone quite simply does not have the power to bind the nation to do anything that he alone cannot carry out. Or would Ackerman regard as inappropriate the Clinton administration's 1994 "framework" with North Korea?
As for precedents, many sole executive agreements were made with Far Eastern and Caribbean nations in the first two decades of the 20th century, some rather important and without senatorial advice and consent. For basing precedents specifically, one may also look to Cold War agreements with Spain, Bahrain, Portugal and Britain. The well known 1940 Destroyers-for-Bases agreement was another such executive agreement. Formally, it made no legal commitment and made no expenditure. Was this also a "farce"?
Under both constitutional and international law, a sole executive agreement merely declaring principles would be "binding" on this administration alone. Any subsequent administration can break or revise such a sole executive agreement at any time (or discontinue relations with Iraq, if it so wishes).
Let the president make as many agreements as he pleases. And let coming generations, Congress and future administrations resist or support their implementation as they please.
Tom Karako is a doctoral candidate at Claremont Graduate University and director of programs for the Claremont Institute.Copyright © 2015, Los Angeles Times