Whether Uruguay Round Agreements Required Ratification as a Treaty

• Decision Date: 22 November 1994
• Docket Number: 94-27
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Whether Uruguay Round Agreements Required Ratification as a Treaty

18 Op. O.L.C. 232

Whether Uruguay Round Agreements Required Ratification as a Treaty

No. 94-27

United States Department of Justice

November 22, 1994

WALTER DELLINGER Assistant Attorney General Office of Legal Counsel.

Whether Uruguay Round Agreements Required Ratification as a Treaty

The Uruguay Round Agreements concluded under the auspices of the General Agreement on Tariffs and Trade did not require ratification by the Senate as a treaty, but could constitutionally be executed by the President and approved and implemented by Act of Congress

MEMORANDUM OPINION FOR THE UNITED STATES TRADE REPRESENTATIVE

This memorandum supplements our earlier opinion on the question whether the Uruguay Round Agreements concluded under the auspices of the General Agreement on Tariffs and Trade (the "GATT") must be ratified as a treaty.^[1] It replies to two later papers by Professor Laurence H. Tribe, and his testimony before the Senate Committee on Commerce, Science and Transportation, that have disputed our conclusion on that subject.^[2] After considering Professor Tribe's arguments, we again conclude that the Uruguay Round Agreements may constitutionally be adopted by the passage of implementing legislation by both Houses of Congress, together with signing by the President.

I. The Treaty Clause

Professor Tribe argues that there exists, for constitutional purposes "a discrete subset of international agreements properly categorized as treaties."^[3] Professor [ 233] Tribe "readily admit[s], " however, "that the Constitution itself provides little guidance about the content of this category."^[4] He also concedes that "[t]he Supreme Court has never addressed directly the constitutionality of using the congressional-executive agreement to deal with matters that fall within the Constitution's 'treaty' category."^[5] Nor does he attempt "to construct any sort of general test for determining whether any given agreement should be considered a treaty.^[6] Despite that Professor Tribe insists that "[the Uruguay Round] warrants the high level of deliberation and consensus that the formal requirements of the Treaty Clause guarantee."^[7]

Like Professor Tribe, we find that neither the text of the Constitution, nor the materials surrounding its drafting and ratification, nor subsequent Supreme Court case law interpreting it, provide clear-cut tests for deciding when an international agreement must be regarded as a "treaty" in the constitutional sense, and submitted to the Senate for its "Advice and Consent" under the Treaty Clause, U.S. Const, art. II, § 2, cl 2.^[8] In such circumstances, a significant guide to the interpretation of the Constitution's requirements is the practical construction placed on it by the executive and legislative branches acting together. See, e.g., The Pocket Veto Case, 279 U.S. 655, 689-90 (1929) ("[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character. Compare . . . State v. South Norwalk, 77 Conn. 257, 264 [(1904)], in which the court said that a practice of at least twenty years duration 'on the part of the executive department, acquiesced in by the legislative department, while not absolutely binding on the judicial department, is entitled to great regard in determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning.'"); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) [ 234] (Frankfurter, J., concurring) ("The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature."). Indeed, the Court has been particularly willing to rely on the practical statesmanship of the political branches when considering constitutional questions that involve foreign relations. See, e.g., United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); see also Harold H. Koh, The National Security Constitution 70-71 (1990) (historical precedent serves as "quasi-constitutional custom" in foreign affairs); Griffin B. Bell & H. Miles Foy, The President, the Congress, and the Panama Canal: An Essay on the Powers of the Executive and Legislative Branches in the Field of Foreign Affairs, 16 Ga. J. Int'l & Comp. L. 607, 640-41 (1986); Gerhard Casper, Constitutional Constraints on the Conduct of Foreign and Defense Policy: A Nonjudicial Model, 43 U. Chi. L. Rev. 463, 478 (1976).

Such practical construction has long established (and Professor Tribe acknowledges) that "there are many classes of agreements with foreign countries which are not required to be formulated as treaties" for constitutional purposes.^[9] Most pertinently here, practice under the Constitution has established that the United States can assume major international trade obligations such as those found in the Uruguay Round Agreements when they are negotiated by the President and approved and implemented by Act of Congress pursuant to procedures such as those set forth in 19 U.S.C. §§ 2902 & 2903.^[10] In following these procedures, Congress acts under its broad Foreign Commerce Clause powers, ^[11] and the President acts pursuant to his constitutional responsibility for conducting the Nation's foreign affairs.^[12]The use of these procedures, in which both political branches deploy sweeping constitutional powers, fully satisfies the Constitution's requirements; the Treaty Clause's provision for concurrence by two-thirds of the Senators present is not constitutionally mandatory for international agreements of this kind.^[13] [ 235]

Professor Tribe recognizes the existence of these decades-old practices, which have resulted in the approval of such fundamental trade pacts as the North American Free Trade Agreement (the "NAFTA")^[14] But he disparages the use of Congressional-Executive agreements as merely a matter of "political leaders' casual approach to the Constitution."^[15] This dismissive characterization gives virtually no weight to the considered constitutional judgments of the political branches.^[16] We believe that that approach is mistaken. Disagreements and uncertainties surrounding the scope of the Treaty Clause — including its interaction with Congress's power to regulate commerce — are two centuries old. See below. Congress's Foreign Commerce Clause authority and the President's responsibility for foreign affairs are unquestionably broad. In such circumstances, the political branches can fairly conclude — and have in fact concluded — that even major trade agreements such as the Uruguay Round Agreements may be approved and implemented by Acts of Congress, rather than ratified as treaties.^[17] Indeed, Professor Tribe himself wrote in 1988 that "it does appear settled that a hybrid form of international agreement — that in which the President is supported by a Joint Resolution of Congress — is coextensive with the treaty power. Such Congressional-Executive [ 236] agreements are the law of the land, superseding inconsistent state or federal laws." Laurence H. Tribe, American Constitutional Law 228 n.18 (2d ed. 1988) (emphasis added).

Historically, the scope of the Treaty Clause, and its interplay with other constitutional clauses, have provoked controversies of several different kinds. The persistence of these controversies (which trace back to the eighteenth century), and the nearly complete absence of judicial decisions resolving them, underscore the necessity of relying on congressional precedent to interpret the relevant constitutional provisions. No one could deny that "congressional practice alone cannot justify abandonment of the Constitution's structural provisions, "^[18] but it begs the question to assume that the treaty ratification process is structurally required by the Constitution in cases such as this.^[19] Like other "great ordinances of the Constitution, " the Treaty Clause "do[es] not establish and divide fields of black and white." Springer v. Government of the Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J., joined by Brandeis, J., dissenting).

One recurring kind of dispute over the Treaty Clause has been whether international agreements could be given effect by Executive action alone, or whether they required submission to the Senate for its concurrence. See, e.g., 2 Messages and Papers of the Presidents 33 (James D. Richardson ed., 1896) (President Monroe's message to the Senate of April 6, 1818, expressing uncertainty whether the Executive alone could make an international agreement for the naval disarmament of the Great Lakes, or whether Senate advice and consent was required).^[20] A second type [ 237] of recurring dispute, more pertinent here, centered on the respective powers of the Senate and the House of Representatives in such areas as the regulation of foreign trade, where different clauses of the Constitution assign responsibilities either to one House alone or to both Houses together. As Secretary of State Dulles explained in testimony before the Senate Judiciary Committee in 1953, there is an

undefined, and probably undefinable, borderline between international agreements which require two-thirds Senate Concurrence, but no House concurrence, as in the case of treaties, and agreements which should have the majority concurrence of both Chambers of Congress. . . . This is an area to be dealt with by friendly cooperation between the three departments of Government which are involved, rather than by attempts at constitutional definition, which are futile, or by the absorption, by one branch of Government, of responsibilities which are presently and properly shared.

Treaties and Executive Agreements:...