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- Title
Presidential Power over International Law: Restoring the Balance.
- Authors
Hathaway, Oona A.
- Abstract
The vast majority of U.S. international agreements today are made by the President acting alone. Little noticed and rarely discussed, the agreements are concluded in a process almost completely hidden from outside view. This state of affairs is the result of a long-term transformation. Over the course of more than a century, Congress gradually yielded power to the President to make international agreements. Each individual delegation of authority relinquished only a small measure of power, while freeing members of Congress to focus on matters that were more likely to improve their reelection prospects. But the cumulative effect over time left Congress with little power over international lawmaking. As a result, the President is now able to make law over an immense array of issues - including issues with significant domestic ramifications - by concluding binding international agreements on his own. This imbalance of power violates democratic principles and may even lead to less effective international agreements. To correct this imbalance, this Article proposes a comprehensive reform statute that would normalize U.S. international lawmaking by reorganizing it around two separate tracks. International agreements that are now made by the President alone would proceed on an administrative track and would be subject to what might be called the "Administrative Procedure Act for International Law." This new process would offer greater openness, public participation, and transparency, but not overburden lawmaking. A legislative track would include two existing methods for concluding international agreements: Senate-approved Article II treaties and congressional-executive agreements expressly approved by both houses of Congress. In addition, it would include an expanded "fast track" process that would permit streamlined congressional approval of agreements. Together, these proposals promise to create a more balanced, more democratic, and more effective system for international lawmaking in the United States.
- Subjects
UNITED States; PRESIDENTS of the United States; INTERPRETATION &; construction of American law; TREATIES; INTERNATIONAL obligations; INTERNATIONAL law; UNITED States. Congress. Senate; ADMINISTRATIVE procedure
- Publication
Yale Law Journal, 2009, Vol 119, Issue 2, p140
- ISSN
0044-0094
- Publication type
Article