President Obama has scored his first foreign policy triumph by persuading the Russians to join him in a major reduction of nuclear arms. But if his initiative is to succeed, he must gain the support of another skeptical bargaining partner: the U.S. Congress. His fate in this second round will probably depend on the constitutional path he takes in gaining legislative approval.
He has two choices. He can ask two-thirds of the Senate to ratify the agreement as a treaty under Article II of the Constitution. Or he can ask a simple majority of both the House and the Senate to approve it as a congressional executive agreement under Article I. President Nixon took the latter path when he negotiated our first arms agreement with the Soviet Union in 1972.
In reviving nuclear arms control for a new age, Obama should follow Nixon’s constitutional example. Otherwise, he will confront the familiar prospect of Senate obstructionism. It was hard enough for Obama to get the 60 senators he would have needed to prevent a filibuster on healthcare. Going the treaty route would require 67 votes to approve the pact.
If Obama submits the agreement to both houses for approval, he will still need 60 Senate votes to avoid a filibuster, but that is a far more manageable number, and final approval will only require a simple majority vote. In these partisan times, passing the agreement won’t be easy, but there is a reasonable chance that Obama’s initiative will carry the day.
Senate opponents will undoubtedly cry foul and try to portray the two-house option as a devious trick to deprive the Senate of its exclusive authority to advise and consent on international agreements. They will note that every president since Nixon has used the treaty route on major nuclear arms accords. But the Arms Control and Disarmament Act recognizes the equal legitimacy of the two-house process, and explicitly gives the president the authority to determine which of the two options he should exercise in respect to an agreement. And the congressional executive agreement has been used in other defense-related matters.
Obama can invoke two basic principles to justify taking this path as well.
First, he can note that the two-house procedure is more democratic. Given Senate malapportionment, members representing only 8% of Americans could provide the 34 votes needed to reject a treaty. By comparison, the 41 required to mount a successful filibuster against a congressional executive agreement seems a large step in the democratic direction.
The two-house process is also more efficient. Even if the Senate does consent to a treaty, the entire lawmaking process must start all over again to approve the necessary implementing legislation, and at that point the Constitution requires the House to function as the Senate’s equal partner. Although Article II authorizes the Senate to ratify treaties, Article I requires all legislation to go through both chambers.
In contrast, if Obama calls for a congressional executive agreement, the House is involved from the get-go. This allows him to package the agreement with the Russians and the implementing legislation together for a single vote -- permitting the president and Congress to move on to other pressing business.
The congressional executive agreement is more democratic and less time-consuming than the treaty alternative. Consequently, it has increasingly become the vehicle of choice for many kinds of international agreements.
Consider NAFTA. After an intense nationwide debate catalyzed by Ross Perot, the Senate voted 61 to 38 to approve President Clinton’s initiative. Clinton had submitted NAFTA as a congressional executive agreement, so this vote sufficed to assure final passage because the House also passed the measure, 234 to 200. If Clinton had proposed NAFTA as a treaty, the Senate vote would have killed the entire effort.
With creative leadership, Obama and Senate Majority Leader Harry Reid (D-Nev.) might well win 61 Senate votes for arms control. It would be a tragedy if their political success were translated into legal failure because they failed to follow Nixon and Clinton down the right constitutional path.
Bruce Ackerman and Oona Hathaway are professors of law at Yale University.