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This looks like a job for Shadow Government
Let me be the first FP blogger to welcome Shadow Government into the fold. As the Democrats take over the executive branch, it will be good to have some critical voices around to push and prod their foreign policies.
That said, I'd also love it if Shadow Government could also provide some evaluation on any criticism provided by other former Bush officials as the changeover commences. Do these criticisms have validity, or are they merely tactical justifications given the GOP's minority status?
For example, consider today's New York Times op-ed by John Bolton and John Yoo:
The Constitution’s Treaty Clause has long been seen, rightly, as a bulwark against presidential inclinations to lock the United States into unwise foreign commitments. The clause will likely be tested by Barack Obama’s administration, as the new president and Secretary of State-designate Hillary Clinton, led by the legal academics in whose circles they have long traveled, contemplate binding down American power and interests in a dense web of treaties and international bureaucracies.
Like past presidents, Mr. Obama will likely be tempted to avoid the requirement that treaties must be approved by two-thirds of the Senate. The usual methods around this constitutional constraint are executive agreements or a majority vote in the House and Senate to pass a treaty as a simple law (known as a Congressional-executive agreement).
Executive agreements have an acknowledged but limited place in our foreign affairs. Congressional-executive agreements are far more troubling.
Now, on the one hand, one could interpret this advice as a warning about the dangers of implementing international agreements without the broad support of Congress and the American people.
One could also, however, interpret this advice as awfully strange, as it emanates from officials who have, heretofore, been mostly concerned with the augmentation of the executive branch's power at all costs (and implemented plenty of congressional-executive agreements while in office).
It is terribly convenient, now that they are out of power, to be suddenly concerned with Obama running roughshod over the legislative branch. The domestic parallel would be if Bush officials who embraced No Child Left Behind and intervened in the case of Terry Schiavo suddenly developed a Strange New Respect for federalism.
So, Shadow Government, should one take Bolton and Yoo at face value?
UPDATE: Drezner gets results from Shadow Government. [Has the ten-year old in you has always wanted to type that sentence?--ed. Yes. Yes, he has.]






It is definitely convenient
It is definitely convenient to speak after the fact, as such, but that doesn't mean the point isn't valid. It's terrible how often the Constitution is only adhered to when convenient, or just when too many people would notice otherwise. Obama couldn't even name his cabinet without disregarding a part of it, however silly the particular issue may be.
Declaration of war is another thing that's been, I guess, permanently bypassed without anybody really caring. I haven't heard even the nuttiest of anti-war people make the simple argument that Congress never declared war (Iraq, Afghanistan, whatever). Unless that's what they mean when they call it an "illegal war", but I don't think it is.
Elections have consequences
I find it interesting that at least one thrust of their argument is that a policy with which both houses of Congress and the President agree is somehow illegitimate if it is not passed by 2/3 of the Senate, if such policy might otherwise be considered a treaty.
Some treaties are not self-executing, so must receive the approval of at least a majority of both houses and the President to even be given effect. It seems to me that the approval of both houses and the President is a higher bar than the President and 2/3 of the Senate, so there is nothing illegitimate by enacting a statute rather than ratifying a treaty.
We might also want to consider why the Treaty Clause was drafted in the way that it was. Given that, at the time, the Senators were not directly elected by the people of the states, it may be that this was intended as a way for the State governments to check treaties that would negatively effect them. Rather than a separation of powers issue, it was a federalism issue. If that were the case, then the structural basis of the Treaty Clause is undermined, and the case for passage by both houses and the President is even stronger. (I assume someone has written on that, but I don't have access to databases anymore :-) )
I think the reasoning in their piece is just not persuasive.