Professor David Moore publishes “The President’s Unconstitutional Treatymaking”
Professor David Moore
spent part of last year researching the constitutionality of certain aspects of U.S. treatymaking. What he found became the basis of an 80 page article that appears in the UCLA Law Review (Vol 59. p. 598, 2012) on the President’s authority to make treaties
According to international law, when the President signs a treaty subject to later ratification, the United States assumes certain treaty-based obligations until it ratifies, or communicates that it does not intend to ratify, the treaty. Moore argues that the President’s unilateral assumption of these obligations without approval by two-thirds of the Senate or a majority of both houses of Congress is unsupported by constitutional text, structure, or history.
“The main implication is that the President can’t do this,” Moore said. “The President cannot sign treaties subject to later approval by the Senate or Congress. If the United States is going to consent to a treaty, it must do so in a way that does not involve the executive unilaterally assuming obligations that it lacks constitutional authority to assume.”
One possible solution is for the United States to enter treaties through ratification without prior presidential signature. In this case, the President wouldn’t unilaterally assume international obligations.
While Moore’s main focus during his research was to contribute to scholarly and political evaluation of U.S. treatymaking, he also recognizes the benefits of his work for his teaching and for the success of students who assisted with his research.
“It gives them a better understanding of how research and writing work and provides me an opportunity to get to know them better so that I can help to further their careers,” Moore said.
Now that this project is complete, Moore is working on an article on the “one voice” doctrine in U.S. Foreign Relations Law. The piece explores the failings of this doctrine which has played a role in important foreign relations cases addressing the powers of the President, Congress, courts, and states in foreign affairs.
SSRN: "The President's Unconstitutional Treatymaking"
Posted:August 03, 2012