Against free-form formalism

New York University Law Review

Volumn 73, Issue 6, 1998, Pages 1791-1941

  Golove, David M ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 22444451908     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (487)

1. Ronald Dworkin, The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 65 Fordham L. Rev. 1249, 1261 (1997).
2. Ronald Dworkin, Law's Empire 62 (1986) [hereinafter Dworkin, Law's Empire];
3. see also Ronald Dworkin, Freedom's Law 11 (1996) [hereinafter Dworkin, Freedom's Law] (declaring that when more than one construction "fits" the relevant constitutional materials, interpreters are to "decide on their own which conception does most credit to the nation").
4. See Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995) [hereinafter Tribe, Taking Text].
5. Professor Ackerman's theory is given its fullest presentation in 1 Bruce Ackerman, We the People: Foundations (1991), and in 2 Bruce Ackerman, We the People: Transformations (1998).
6. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799 (1995) (tracing rise of congressional-executive agreement and so-called interchangeability doctrine, whereby Congress may approve by majority vote any international agreement that President could submit for two-thirds approval by Senate under Article II, Section 2 of Constitution);
7. see also Bruce Ackerman & David Golove, Is NAFTA Constitutional? (1995) (reprinting same as book).
8. See U.S. Const. art. I, § 2, cl. 2.
9. See North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993) (authorizing by two-house majority vote the North American Free Trade Agreement, Dec. 17, 1992, 32 I.L.M. 605 (1993)).
10. See Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994) (authorizing by two-house majority vote the Agreement Establishing the World Trade Organization, opened for signature Apr. 15, 1994, 33 I.L.M. 1144 (1994)).
11. See, e.g., Restatement (Third) of Foreign Relations Law § 303(2) (1987) [hereinafter Restatement] (upholding constitutionality of interchangeability doctrine); id. § 303 cmt. e (elaborating on same); Louis Henkin, Foreign Affairs and the United States Constitution 215-18 (2d ed. 1996) (same); Memorandum of Law from Professors Bruce Ackerman, Abram Chayes, Kenneth Dam, Thomas Franck, Charles Fried, David Golove, Louis Henkin, Robert Hudec, John H. Jackson, Harold Hongju Koh & Myres McDougal to Members of Congress and Executive Branch Officials (Nov. 11, 1994) (on file with the New York University Law Review) (same); see also Ackerman & Golove, supra note 5, at 805 n.12 (citing authorities).
12. For a number of examples, see the discussion in Ackerman & Golove, supra note 5, at 875-907; see also Executive Agreements, 14 Whiteman Digest § 22, at 196, 210 (noting that vast bulk of our international commitments since World War II have been concluded as congressional-executive agreements).
13. See Laurence H. Tribe, American Constitutional Law § 4-5, at 228 n.18 (2d ed. 1988) [hereinafter Tribe, Constitutional Law] (endorsing interchangeability doctrine).
14. For numerous examples, see Ackerman & Golove, supra note 5, at 861-907.
15. Even Professor Tribe has excused those who might find "some amusement" in his endorsement of textualism. Tribe, Taking Text, supra note 3, at 1248 n.91 (citing Sanford Levinson, Authorizing Constitutional Text: On the Purported Twenty-Seventh Amendment, 11 Const. Commentary 101, 105 (1994));
16. see also Jordan Steiker et al., Taking Text and Structure Really Seriously: Constitutional Interpretation and the Crisis of Presidential Eligibility, 74 Tex. L. Rev. 237, 243-52 (1995) (parodying, I believe, Professor Tribe's original meaning textualism).
17. Tribe, Taking Text, supra note 3, at 1247 & n.90; see also infra notes 35-37 and ac-companying text (elaborating on Tribe's distinction between architectural and aspirational provisions).
18. Indeed, the two have recently canvassed the commonalities, and differences, in their perspectives. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3 (Amy Gutmann ed., 1997) [hereinafter Scalia, Common-Law Courts];
19. Laurence H. Tribe, Comment, in A Matter of Interpretation, supra, at 65 [hereinafter Tribe, Comment];
20. Antonin Scalia, Response, in A Matter of Interpretation, supra, at 129, 133-43 [hereinafter Scalia, Response].
21. See infra note 38 and accompanying text.
22. I make a determined effort to address all of Professor Tribe's arguments addressed to the interpretation of the Treaty Clause. I do not address all of his arguments against Professor Ackerman's larger constitutional views nor the other interpretive disputes between Professors Tribe and Ackerman, and between Professors Tribe and Amar. Compare Tribe, Taking Text, supra note 3, at 1243-47, 1288-92 (criticizing Ackerman's and Amar's interpretive methods generally, and their interpretations of Article V specifically), with Bruce Ackerman, Higher Lawmaking, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 63, 71-82 (Sanford Levinson ed., 1995) (describing non-Article V process of "higher lawmaking" whereby "We the People," acting as national sovereign, may amend Constitution),
23. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. 457 (1994) (defending reading of Constitution that allows amendment outside Article V),
24. Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043 (1988) (same). Although I touch on some of the main points, especially as they relate to my larger argument, see infra notes 403; 415-33, and accompanying text, I leave a fuller defense to those who have made the arguments under siege, who are fully capable of defending their own views. For Professor Ackerman's most extended textual defense of his construction of Article V, see 2 Ackerman, supra note 4, at 71-92.
25. See U.S. Const. art. II, § 2, cl. 2.
26. As a sidelight, our accounts have importantly different implications for the constitutional underpinnings of the third category, the unilateral executive agreement, as well, but that is a secondary, though not necessarily less important, concern in the present controversy. For further discussion, see infra notes 358, 376; 327-29, 340-43, and accompanying text.
27. There is a fourth type of agreement, sometimes known as the executive agreement ancillary to a treaty. In these cases, the President, without further authority, concludes a special agreement that is more or less explicitly called for in a treaty that has already received the Senate's advice and consent. In effect, this is a kind of ex ante agreement, approved by the Senate at the time it gives its advice and consent to the treaty. There is, no doubt, a cognate executive agreement ancillary to a congressional-executive agreement. By a parity of reasoning, moreover, although there is little if any practice to confirm the view, it may be the case that the Senate could give its ex ante consent authorizing the President to conclude treaties on particular subjects in accordance with its stipulated requirements. To my knowledge, it has never done so, and in the famous dispute over the Hague arbitration treaties around the turn of the century, the Senate adamantly refused to go even half way there. For further discussion, see John Bassett Moore, Treaties and Executive Agreements, 20 Pol. Sci. Q. 385 (1905). Some senators did worry that the 1943 Connally Resolution, which called for the creation of an international organization to keep the peace, might be construed as the Senate's ex ante consent to the then forthcoming United Nations Charter. See 89 Cong. Rec. 9066 (1943) (remarks of Sen. Connally) (noting concerns of senators to this effect). In any case, the constitutional question raised, as in the case of ex ante congressional-executive agreements, would be the scope of the Senate's power to delegate its treaty responsibilities to the President. Cf. Field v. Clark, 143 U.S. 649, 693-94 (1892) (upholding congressional delegation of authority).
28. See Ackerman & Golove, supra note 5, at 805 n.12 (citing authorities); supra notes 9-10 (same).
29. This common formulation of the interchangeability doctrine is not entirely precise. In fact, the doctrine asserts that Congress may approve any international agreement submitted by the President that falls within one of its enumerated (or implied) powers in Article I, Section 8 of the Constitution or elsewhere. For further discussion and some additional refinements, see infra notes 28-49, 56, and accompanying text.
30. Henkin, supra note 9, at 216.
31. Indeed, it is the only account that has seriously been offered in the literature.
32. We did note that important, though circumscribed, inroads were made upon the traditional understanding during the early New Deal period, when limited uses of the ex ante congressional-executive agreement were first made. See Ackerman & Golove, supra note 5, at 845-61. Further, we left open the degree to which this more limited practice might have been legitimized as part of the sweeping domestic transformations that were realized in 1937 of the commerce and other powers. We nevertheless did make unmistakably clear our view that whatever status these changes may have achieved, they in no way approached the modern interchangeability doctrine. See id. at 851-56, 860-61.
33. See id. at 813-45.
34. See id. at 808-13.
35. See id. at 861-96. There are actually two versions of the interchangeability doctrine, one stronger and the other weaker. We explicitly defended the weaker version, but the stronger is probably also consistent with our argument. The weaker claims only that Congress has the power under the Necessary and Proper Clause to approve international agreements that are within the reach of its enumerated and implied powers. The stronger claims, without support in the text, that Congress has the power to approve any international agreement. For all practical purposes, there seems to be no difference between the two. Congress's foreign affairs powers are very broad, perhaps plenary. See Henkin, supra note 9, at 64-80 (detailing source and breadth of Congress's foreign affairs power); Louis Henkin, The Treaty Makers and the Law Makers: The Law of the Land and Foreign Relations, 107 U. Pa. L. Rev. 903, 928-29 (1959) (arguing that any agreement that is beyond Congress's enumerated powers would nevertheless fall within its implied foreign affairs powers). Thus, the two versions tend to collapse into one another. If some gap still remains, moreover, it might be filled by the President's independent powers. Some have argued that because the President and Congress together are the repositories of American sovereignty, all agreements they make together must be within their combined powers. See Henkin, supra note 9, at 216. But this argument overlooks the fact that there is another relevant alternative to be considered - the President and the Senate acting as the treaty makers. It is theoretically possible, then, that an agreement would be beyond both Congress's, the President's, and their combined authority. While the textual arguments I make in this Article are consistent only with the weaker version, it is by no means clear that the constitutional compromise reached in 1945 is not best read as supporting the stronger view. In that case, it would be completely clear that the interpretive points Professor Tribe raises are irrelevant to our argument. There is, however, no need to consider this possibility here.
36. See infra Part IV.
37. See Tribe, Taking Text, supra note 3, at 1278-79 (concluding that "textual and structural considerations leave no genuine doubt as to the exclusivity of the Treaty Clause," and charging that we strained to find ambiguity in text).
38. According to Professor Tribe, our NAFTA article . . . presents a significant threat to the whole enterprise of constitutional dialogue and decisionmaking - a threat implicit in [Professor Ackerman's] earlier works but made manifest here. The danger arises from a facile treatment of constitutional text and structure and a free-form approach to saying what they mean . . . . Id. at 1233.
39. See id. at 1235-49.
40. Id. at 1237.
41. Id. at 1242 n.66.
42. Id. at 1247 n.90.
43. Id. at 1247.
44. See id. Professor Tribe, however, has not been entirely consistent in his attitude towards the text. For example, despite his frequent affirmations of the text's primacy and of the imperative to seek "the best reading . . . identified in terms of interpretive canons that are as immune as we can make them from the pushes and pulls of our own policy predilections," id. at 1279, he suggests at other points that the text exerts only a much looser constraint on the interpreter. It is only that "nothing irreconcilable with the text can properly be considered part of the Constitution." Tribe, Comment, supra note 15, at 77; see also Tribe, Taking Text, supra note 3, at 1237 (describing his topological model which, taken literally, allows for bending and stretching, just not cutting or tearing text). Of course, there is a world of difference between these views. If his searching efforts at Treaty Clause exegesis suggest a commitment to the former, then the glibness with which he affirms modern Commerce Clause jurisprudence, the shift in substantive due process doctrine from Lochner v. New York, 198 U.S. 45 (1905), to the contemporary privacy decisions, and the expansion of the President's unilateral agreement-making powers (as well as his past interpretive efforts in a variety of other areas), see infra notes 420-23, 449-50, and accompanying text, suggest the latter. Despite these apparent inconsistencies, I shall take him at his word and assume that he endorses the stricter view.
45. See Tribe, Taking Text, supra note 3, at 1242 n.66 (declaring that concerning "consultation of the Framers, it should be axiomatic that it is enacted law - whether in the form of a statute or a constitution - that governs, never the unenacted intentions of any lawgiver"); see also Tribe, Comment, supra note 15, at 65-66 (stressing primacy of text's meaning over lawmakers' expectations or intentions). Only to the limited extent that the latter would point us toward "the linguistic frame of reference within which the people to whom those words or phrases were addressed would have 'translated' and thus understood them" might they be relevant in determining the original meaning of the text the lawmakers actually adopted. Id. at 65.
46. See Tribe, Taking Text, supra note 3, at 1281-82. In addition to these three commitments, Professor Tribe's "topological" model enjoins us to beware the hazards of construing the sounds of constitutional silences, see id. at 1241, to avoid the pitfall of mistaking gaps in the Constitution's text as holes in constitutional space to be filled in at will, see id. at 1239-45, and to attend to how the entities created by the Constitution connect and interlock, see id. at 1248-49. It enjoins us as well to take not only text but structure and architecture seriously, "the pattern and interplay in the governmental edifice that the Constitution describes and creates, and in the institutions and practices it propels." Id. at 1236. As with regard to the text, Professor Tribe is not wholly consistent in his attitude towards the use of history. In the past, he has been unwilling to articulate his own methodological commitments, expressing skepticism about the possibility of defending a global account, including textualism. See Laurence H. Tribe, Constitutional Choices 3-6 (1985) [hereinafter Tribe, Choices] (finding "all legitimating theories not simply amusing in their pretensions but, in the end, as dangerous as they are unconvincing"). Try as I may, however, I am unable to discern a coherent view other than textualism that could underlie his Treaty Clause argument. Most tellingly, he eschews the use of historical evidence in determining the meaning of the Treaty Clause, even though that evidence would decisively bolster his case. That is one of the central points of the article by Professor Ackerman and me, and with our history, if nothing else, Professor Tribe fully concurs. See Tribe, Taking Text, supra note 3, at 1230-31, 1270, 1280-81 (acknowledging that post-War rise of congressional-executive agreement marked break with prior, longstanding constitutional understanding). On the other hand, he at one point affirms that "constitutional interpretation would certainly be robbed of much if it were conducted in an historical vacuum - or even through historical lenses that could see only up to the point of a constitutional provision's adoption and not a moment beyond." Id. at 1280; see also id. at 1280-81 (affirming importance of early practice extending back to nation's founding). At another, he offhandedly makes passing reference to the understandings during the first century-and-a-half to support one of his textual claims. See id. at 1270; see also infra notes 223-24 and accompanying text (discussing page 1270 at length). And at still others, he supports the President's textually doubtful sole organ power and his power to conclude unilateral executive agreements by reference to early practice. See id. at 1255, 1265; see also infra notes 308-18 and accompanying text (discussing source and scope of sole organ power). Notwithstanding these apparent inconsistencies, I have assumed that Professor Tribe's basic position, at least as to the Treaty Clause, is textualist. Any other explanation would be inconsistent with the main thrust of his argument and would seem to trivialize the interpretive dispute between us.
47. Tribe, Taking Text, supra note 3, at 1276.
48. See Tribe, Constitutional Law, supra note 11, § 4-5, at 228 n.18 (endorsing interchangeability); Letter from Laurence H. Tribe, Professor, Harvard Law School, to Sen. Robert Byrd (July 19, 1994) (on file with the New York University Law Review) [hereinafter Tribe Letter to Sen. Byrd of July 19, 1994] (suggesting that only extremely important agreements need be submitted as treaties to Senate); Memorandum from Laurence H. Tribe, Professor, Harvard Law School, to Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, et al. 8 (Oct. 5, 1994) (on file with the New York University Law Review) [hereinafter Tribe Memo of Oct. 5, 1994] (same); GATT Implementing Legislation: Hearings on S. 2467 Before the Senate Comm. on Commerce, Science, and Transportation, 103d Cong. 301 (1994) (prepared statement of Laurence H. Tribe, Professor, Harvard Law School) [hereinafter GATT Hearings] (widening net to include NAFTA and other important congressional-executive agreements); Tribe, Taking Text, supra note 3 (arguing for exclusivist view under which congressional-executive agreement form is unconstitutional). There is, of course, nothing wrong with changing one's view. Indeed, Professor Ackerman and I made some claims during the debate on the WTO Agreement that I would not now defend. See Ackerman & Golove, supra note 5, at 812 & n.45 (providing different interpretation of early comment by Madison than we had during debate on WTO Agreement, as Professor Tribe has pointed out, see Tribe, Taking Text, supra note 3, 1264 n.146). A radical shifting of views such as Professor Tribe's, however, does at least raise doubts about the clarity of the text in question.
49. See Tribe Memo of Oct. 5, 1994, supra note 41, at 8 (noting that if "one looks at the agreements other than NAFTA that have a remotely comparable impact [to that of the WTO Agreement], one will only find the United Nations Treaty [sic] itself and perhaps the establishment of the North Atlantic Treaty Organization," and implying constitutionality of all other congressional-executive agreements); see also GATT Hearings, supra note 41, at 301 (similar).
50. See Ackerman & Golove, supra note 5, at 922: Both the modern and traditional readings have a clarity and elegance to them - either (as moderns think) Congress can create binding international obligations whenever it thinks it 'necessary and proper' under Article I, or (as was generally believed before Versailles) Article I is never a source of this power and the Senate must always give its advice and consent.
51. The consequence of his current view is that the congressional-executive agreement form, not any particular congressional-executive agreement, is unconstitutional, and while he obscures the point, see Tribe, Taking Text, supra note 3, at 1234-35 & 1234 n.47, 1265 (attempting to imply that only ex post agreements are affected), this applies to both ex ante and ex post agreements. This result is breathtaking in its potential implications: It means not only that NAFTA, the WTO Agreement, and a host of other foundational ex post agreements are presumptively unconstitutional, but that the vast bulk of all agreements the United States has entered during the past fifty years are as well, since approximately 90% of our post-War commitments have been concluded as ex ante congressional-executive agreements. See Executive Agreements, 14 Whiteman Digest § 22, at 210; supra note 10 and accompanying text. Given the enormity of this view, Professor Tribe unsurprisingly attempts to soften the blow, but the points he musters in mitigation are neither convincing nor particularly comforting. He notes first that some congressional-executive agreements actually received more than two-thirds support in the Senate, and, while carefully avoiding endorsing the argument, he suggests that this might cure any constitutional defect. See Tribe, Taking Text, supra note 3, at 1227 & n.18, 1276. The reason for his equivocation is evident: The ex ante choice of the applicable voting rule may well influence the ultimate outcome, and it cannot be assumed that an agreement that generated a two-thirds majority as a congressional-executive agreement would necessarily have won the same support had it been submitted as a treaty. Moreover, Powell v. McCormack, 395 U.S. 486 (1969), at least arguably stands for the proposition that a congressional vote premised on the incorrect assumption that a simple majority rule applies must be invalidated even though there were enough affirmative votes to prevail under the properly applicable supermajority rule. See id. at 508 (refusing to validate vote in excess of two-thirds to exclude Representative Powell from House because vote was taken under misapprehension that simple majority vote was sufficient when in fact two-thirds rule for expulsions applied). More importantly, Professor Tribe intimates that many of the agreements concluded under congressional authorization may well have been within the President's unilateral authority in any case, and hence valid on that basis. See Tribe, Taking Text, supra note 3, at 1269, 1276-77. This portentous expansion of contemporary and historical understandings of the scope of the President's unilateral powers is hardly comforting. It is precisely the dangers posed by such broad conceptions of independent executive authority that have been the preoccupation of foreign relations scholars for decades. In any case, Professor Tribe does not explain how he squares this view with his commitment to the frozen-in-time character of architectural provisions. It is scarcely imaginable that he thinks such broad unilateral powers accord with the best interpretation of the text of 1787. For further discussion, see infra notes 423; 374-77 and accompanying text. None of this, moreover, addresses the potentially devastating impact that requiring senatorial advice and consent for large numbers of international agreements may have on the conduct of our foreign relations in the future.
52. U.S. Const. art. II, § 2, cl. 2.
53. Actually, Professor Tribe's position is slightly different than I have indicated in the text. He believes that some agreements are not significant enough to rise to the level of an Article II "treaty." See infra Part III.D.2. Although he denies the implication, this would appear to mean that the treaty power is not fully coextensive with the agreement-making power, and so some portion of Areas B and C would not be covered by the Senate's powers. The gap belongs neither to the Congress nor to the Senate but to the President acting alone. See infra Part III.D.2. As will become evident, this claim is wholly fallacious. See infra Part III.D.2.
54. See Thomas Jefferson, A Manual of Parliamentary Practice § 52 (1801),
55. reprinted in Constitution, Jefferson's Manual and Rules of the House of Representatives, H.R. Doc. No. 104-272, at 115, 298-99 (1997).
56. According to Jefferson, the Framers must have meant "to except those subjects of legislation in which it gave a participation to the House of Representatives." Id. § 52, at 299. Admittedly, though, it is uncertain whether Jefferson would have allowed Congress the power to approve agreements, only added the House as an additional participant along with two-thirds of the Senate, or denied altogether that the agreement-making power extends to subjects within Congress's legislative authority and required that those subjects be regulated purely through domestic statutes. See id. I assume the first alternative, but if I am wrong, the only point affected is the attribution to Jefferson. In any case, the somewhat awkward latter two positions, with different variations, were held by a number of early authorities. See, e.g., 1 Charles Henry Butler, The Treaty-Making Power of the United States §§ 300-316 (1902) (discussing early debates); Treaties, 5 Moore Digest § 735, at 164 (reprinting response by Secretary of State Calhoun to assertion of this kind in Senate Foreign Relations Committee report that recommended rejecting a tariff reciprocity treaty on ground that it infringed on Congress's power over foreign commerce). For Hamilton's vigorous attack on these positions during the Jay Treaty controversy, see Alexander Hamilton, The Defence Nos. 36-38 (Jan. 2, 6, 9, 1796),
57. reprinted in 20 The Papers of Alexander Hamilton 3, 5-10, 13-34 (Harold C. Syrett ed., 1974) (writing as Camillus).
58. For further discussion, see supra note 28; infra notes 49-52, 298, 301-05, and accompanying text.
59. See U.S. Const. art. I, § 8, cl. 18.
60. See id. art. I, § 8, cl. 3.
61. See id. art. I, § 8, cl. 11.
62. See id. art. I, § 8, cl. 12.
63. 17 U.S. (4 Wheat.) 316 (1819).
64. See id. at 421 ("Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.").
65. U.S. Const. art. I, § 8, cl. 18.
66. See infra notes 112, 238, and accompanying text.
67. See U.S. Const. art. VI, cl. 2.
68. Id.
69. For further discussion of the Necessary and Proper Clause, see infra Part III.B.1. For further discussion of the Supremacy Clause, see infra note 250.
70. Missouri v. Holland, 252 U.S. 416, 434 (1920) (Holmes, J.) (rejecting any implicit limits on treaty power emanating from Tenth Amendment).
71. Professor Tribe relies upon the maxim heavily, although he also relies on a number of other textual and structural arguments. I consider all of these arguments in Part III, infra.
72. The only other procedure for making agreements specified in the text applies strictly to the states. See U.S. Const. art. I, § 10, cls. 1, 3 [collectively referred to hereinafter as the "Compact Clause"].
73. See id.
74. For further discussion, see infra notes 378-79 and accompanying text.
75. See infra notes 329, 351-55, and accompanying text.
76. For further discussion, see infra Part III.D.2.
77. For further discussion, see infra text accompanying note 100.
78. For further discussion, see infra notes 273-75 and accompanying text. It might further be supposed that the two-thirds rule reflected the Framers' wish to make entering treaties difficult. The supermajority requirement would encourage the young country to avoid entangling alliances. Although this is certainly a plausible interpretation, I do not discuss it explicitly in the text hereafter. The same arguments that respond to the federal-ism argument - that the two-thirds rule embodies special protections for the states - also reply to the isolationism argument.
79. James Madison, Letter of Helvidius No. 1 (Aug.-Sept. 1793), in 6 The Writings of James Madison 138, 148 (Gaillard Hunt ed., 1906) [hereinafter Helvidius No. 1]. I quote Madison's views not as evidence of the Framers' intent, but of a leading Framer's construction of the text itself. Indeed, I assume that Madison held a contrary "intent," in the sense that, as a participant in the founding and state ratifying conventions, he was fully aware that one of the central purposes of the two-thirds rule was to protect sectional interests.
80. See U.S. Const. art. I, § 7, cls. 2, 3.
81. See Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 378-379, 382 (1798) (affirming that President has no role in amendment proposal process).
82. See U.S. Const. art. V.
83. See I.N.S. v. Chadha, 462 U.S. 919, 955 & n.21 (1983) (citing U.S. Const. art. II, § 2, cl. 2). Likewise, to substitute for the absence of the House and the President, conviction on impeachment, the sole prerogative of the Senate, requires the concurrence of two-thirds of the members present. See id. (citing U.S. Const. art. I, § 3, cl. 6). For further discussion, see infra note 186.
84. See Henkin, supra note 9, at 494 n.156 (suggesting similar reading of Framers' purposes). The Compact Clause provides further support for this view, as discussed infra note 378.
85. For further discussion, see infra notes 183-88 and accompanying text.
86. Despite Professor Tribe's heavy reliance on it, the Court's decision in Chadha is not to the contrary. The Court repeatedly made clear that the legislative veto was entitled to a presumption of validity. See Chadha, 462 U.S. at 944, 951-52. The Court simply believed that the original intent and the text were not open to more than one plausible and persuasive construction, characterizing them as "crystal clear," id. at 958-59, as providing an "unmistakable expression," id. at 959, and as "[e]xplicit and unambiguous," id. at 945. In addition, presidents had from the beginning protested against the legislative veto on constitutional grounds. See id. at 942 n.13 (noting that 11 presidents from Wilson to Reagan objected to legislative veto). In contrast, the Senate has long acquiesced in the congressional-executive agreement form - indeed, a congressional-executive agreement cannot be approved without the consent of at least a majority of the Senate. See Ackerman & Golove, supra note 5, at 889-916 (providing history).
87. Perhaps Justice Scalia fits this description, but despite some rather strong statements denigrating the use of history in favor of text, see Scalia, Common-Law Courts, supra note 15, at 29-37, and affirming textualism, see id. at 23-25, in practice he seems far more willing than Professor Tribe to consider at least the early precedents. His recent opinion in Printz v. United States, 117 S. Ct. 2365 (1997), among many others, is a case in point. See id. at 2370-71 (considering early federal statutes that imposed certain administrative and judicial duties on state courts in determining whether federal government may require state law enforcement officers to perform background checks on purchasers of handguns). In response to Professor Tribe's comment on his recent Tanner Lectures, Justice Scalia placed some distance between himself and Professor Tribe on a closely related point, emphasizing the unduly narrow character of Tribe's version of original meaning methodology. See Scalia, Response, supra note 15, at 133-34 (highlighting differences with Professor Tribe on role of contemporary understandings of text); see also Scalia, Common-Law Courts, supra note 15, at 38 (explaining his view on role of contemporary understandings).
88. The Court may yet get a chance to consider the issue. Suit was recently brought challenging the constitutionality of NAFTA. See Made in the U.S.A. Found, v. United States, No. CV-98-PT-1794-M (N.D. Ala. filed July 13, 1998).
89. In this respect, however, Chadha presents a contrary indicator. There, the Court resisted the force of the New Deal revolution in refusing to uphold the legislative veto. See Chadha, 462 U.S. at 959.
90. At my request, Professor Tribe was gracious enough to provide me with detailed comments on the manuscript of this Article after it was accepted for publication. See Letter from Laurence H. Tribe, Professor, Harvard Law School, to David M. Golove, Professor, University of Arizona College of Law (Apr. 30, 1998) (on file with the New York University Law Review) [hereinafter Tribe Letter to Golove of Apr. 30, 1998]. In his letter, he pointed out that at a few points I had attributed to him arguments which he had not intended to make. See id. In response, I have in most cases accepted his comments at face value and modified my arguments accordingly. In one instance, however, I comment in a footnote on why I believe his text strongly lends itself to my interpretation, but I still avoid in my text any attribution of that view to Professor Tribe. See infra note 104. In another instance, I have continued to attribute to Professor Tribe a view which he has now disowned because, notwithstanding his subjective intentions, I believe that the argument is unequivocally articulated in his original text. I do indicate in a footnote that Professor Tribe has now stated that in fact he did not intend to make that argument, see infra note 105, and I have added some additional material responding to how he now articulates his position on that point, see infra notes 124-38 and accompanying text.
91. U.S. Const. art. II, § 2, cl. 2.
92. Id. art. I, § 10, cls. 1, 3.
93. For example, consider the Court's unwillingness in Springer v. Philippine Islands, 277 U.S. 189, 206 (1928), to apply the maxim in the face of the most compelling textual considerations. The inference must yield, said the Court, "whenever a contrary intention on the part of the law-maker is apparent." Id. (construing Organic Act for Philippine Islands during period of United States colonial rule); see also infra notes 175-77 and accompanying text (discussing Springer).
94. Professor Tribe himself recognizes that expressio unius arguments "have their limits." Tribe, Taking Text, supra note 3, at 1273.
95. See, e.g., Springer, 277 U.S. at 206 (rejecting application of expressio unius); The Legal Tender Cases, 79 U.S. (12 Wall.) 457, 544-47 (1870) (same); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 232-33 (1821) (same).
96. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation 278-79 (1994) (observing that legislators do not always, and sometimes cannot, draft in accordance with interpretive canons such as expressio unius);
97. Richard A. Posner, The Federal Courts: Crisis and Reform 282 (1985) (criticizing expressio unius canon as relying on mistaken assumption that all legislative omissions are deliberate and warning that misuse of canon may defeat legislative objectives);
98. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 455-56 (1989) (warning that "[t]he expressio unius canon should not be used mechanically").
99. J.G. Sutherland, Statutes and Statutory Construction 410 (Chicago, Callaghan & Co. 1891).
100. Nor for Jefferson was it any objection that this might leave precious little for the President and the Senate. See Jefferson, supra note 47, § 52, at 299 ("The less the better, [some] say . . . . The Constitution thought it wise to restrain the Executive and Senate from entangling and embroiling our affairs with those of Europe."). On the other hand, he seems to have believed that this was not actually so. See id. (pointing out that most matters would still properly remain as subjects of treaties). This latter point reflects a constricted view of the scope of Congress's legislative powers that can no longer be sustained today.
101. See Treaties, 5 Moore Digest § 735, at 164 (reprinting note by Secretary of State Calhoun stating that "[i]f this be the true view of the treaty-making power, it may be truly said that its exercise has been one continual series of habitual and uninterrupted infringements of the Constitution"). Nonetheless, arguments of this kind were still current as late as the early part of this century and formed the principal basis of Senator Lodge's constitutional objections to the Covenant of the League of Nations. See the report of the Senate Foreign Relations Committee, of which Senator Lodge was the Chairman, S. Rep. No. 66-176, pt. 1, at 5-6 (1919) (claiming that Article X of Covenant unconstitutionally purported to limit Congress in exercise of its Article I war powers). For a contemporary discussion of the constitutional issue, see Quincy Wright, Treaties and the Constitutional Separation of Powers in the United States, 12 Am. J. Int'l L. 64, 65-85 (1918) (responding implicitly to Senator Lodge's arguments);
102. see also Quincy Wright, The Control of American Foreign Relations, § 54, at 97-98 (1922) [hereinafter Wright, Control] (arguing that treaty may constitutionally limit Congress's discretion in future exercise of power to declare war).
103. This is not to claim that the two views cannot be harmonized. Indeed, Jefferson might well have thought that the expressio unius inference was properly applied to support both the exclusivity of the treaty power and its limitation to matters not falling within Congress's legislative authority. I assume, however, that Professor Tribe would not find this an appealing solution to the textual dilemma posed by Jefferson's argument. He supports application of expressio unius in the one case (i.e. to the Treaty Clause) but not in the other (i.e. to Congress's foreign affairs powers).
104. See Tribe, Taking Text, supra note 3, at 1242-43 (citing The Federalist No. 83, at 496 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
105. See The Federalist No. 83, at 497 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Hamilton wrote: "Even if these maxims had a precise technical sense, corresponding with the ideas of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government." Id.
106. Hamilton is not alone among the early greats to hold this view. Chief Justice Marshall, for example, made the same point in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174-75 (1803) (reasoning that "in this case, a negative or exclusive sense must be given to [the words of the Original Jurisdiction Clause], or they have no operation at all"), and then again in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-401 (1821) (explaining that expressio unius was properly applied in Marbury because "otherwise, the [Original Jurisdiction Clause] would have no meaning whatever"). For further discussion, see infra Part III.E.
107. As Hamilton explains in regard to congressional powers: "This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended." The Federalist No. 83, supra note 92, at 497. Likewise as to judicial power: "The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority." Id. See also his discussion in The Federalist No. 32, at 199-200 (Alexander Hamilton) (Clinton Rossiter ed., 1961), in which he argued that the power to tax domestic articles must be interpreted as being nonexclusive as between the federal and state governments to avoid rendering Article I, Section 10, Clause 2's prohibition on state taxation of imports and exports surplusage.
108. Sutherland, supra note 87, at 412. For criticisms of this common sense view, consider Posner, supra note 86, at 281 (rejecting "no surplusage" canon as resting on mistaken assumption of "legislative omniscience").
109. Tribe, Comment, supra note 15, at 75.
110. See Tribe, Taking Text, supra note 3, at 1250 n.98 (conceding this point).
111. Witness, for example, the resistance of the early nineteenth-century executive to efforts by the House to end the practice of making treaties with Indian tribes and to require congressional approval of Indian agreements instead. See 2 Asher C. Hinds, Hind's Precedents of the House of Representatives of the United States § 1534 (1907) (recounting President Jackson's opposition to House participation in negotiation of Indian treaties); Jefferson, supra note 47, § 52, at 300 (noting that "in earlier times, [the Indian treaty] prerogative had been jealously guarded by the Executive"). For a discussion of the history of Indian agreement-making, see infra note 241.
112. To the extent that the Framers believed that there was any ambiguity about whether approving agreements is properly regarded as a legislative or an executive function, the latter concern would have been more pressing. For discussion of the view of a number of key Framers that the power to approve agreements is properly legislative in character, see infra notes 247-62 and accompanying text.
113. See supra note 67 and accompanying text.
114. See Tribe, Taking Text, supra note 3, at 1241-43, 1269-71, 1273.
115. Id. at 1243.
116. See supra notes 93-94 and accompanying text.
117. In a letter, Professor Tribe indicates that the view stated in the passage quoted in the text is solely his own and that he did not intend to attribute it to Hamilton. See Tribe Letter to Golove of Apr. 30, 1998, supra note 80, at 3-4 (commenting, at my request, on this Article after its acceptance for publication). Without questioning this assertion, I note that there are strong textual reasons for interpreting the quoted passage otherwise. It is the final sentence in a paragraph devoted to discussion of Hamilton's view, and although that sentence never mentions Hamilton explicitly, the previous three sentences, along with an extended block quote from The Federalist No. 83, do so expressly, leaving the reader with a strong impression that Hamilton's discussion supports the principle asserted in the concluding sentence. See Tribe, Taking Text, supra note 3, at 1241-43. This effect is dramatically heightened by Professor Tribe's description of Hamilton's position as supporting the application of expressio unius "to provisions enumerating the limited powers of Congress and the limited jurisdiction of the federal courts." Id. at 1242 (citing The Federalist No. 83, supra note 92, at 496-97). While strictly accurate, this statement omits Hamilton's reasons for holding these views. Without such an explanation, not only is it a misleading description of Hamilton's position, but it also creates the impression that Hamilton's view supports Professor Tribe's immediately subsequent conclusion that expressio unius "applies to provisions of the Constitution that both create entities and describe the powers those entities may wield." Id. at 1243. The important point, however, is that Professor Tribe and I are in agreement that nothing in Hamilton's discussion in The Federalist supports the broad view expressed in the passage quoted in the text.
118. Indeed, in his letter, Professor Tribe indicated that he actually meant to endorse neither of these views and in fact supports only a narrower principle of exclusivity. See Tribe Letter to Golove of Apr. 30, 1998, supra note 80, at 1-3. According to Professor Tribe, what he meant to rest on is the more limited proposition "that constitutional provisions specifying how law is to be made should be presumed to be setting forth exclusive means of lawmaking." Id. at 1-2 (citing Tribe, Taking Text, supra note 3, at 1244). Notwithstanding this subjective intention, however, Professor Tribe's text virtually compels the far broader construction I have suggested. The quoted passage culminates his most sustained and explicit discussion of the maxim, and I am uncertain what other construction it, or a number of other passages, could be given. They all seem to express unequivocally the view that expressio unius should be applied generally to architectural provisions of the Constitution - provisions "that both create entities and describe the powers those entities may wield." Tribe, Taking Text, supra note 3, at 1243; see also id. at 1242 (attributing to Hamilton with apparent approval view that expressio unius is "properly applied to provisions enumerating the limited powers of Congress and the limited jurisdiction of the federal courts"); id. at 1246 (implicitly applying expressio unius to attack Professor Amar's claim that explicit, "architectural" provision granting immunity from civil arrest to members of Congress might be read to invite similar constitutionally-based immunity for President, and noting defects in Professor Ackerman's and Professor Amar's treatment of "architecture-defining, power-conferring provisions of the Constitution as merely suggestive"); id. at 1273 (applying expressio unius to Appointments Clause and arguing that Treaty Clause should be similarly construed); id. at 1274 n.181 (arguing that it is "a wiser course in constitutional interpretation to begin with the presumption that those provisions of the Constitution that call into being the very architecture of our government provide specific and exclusive instructions, not mere options"). Professor Tribe's apparent support for strict application of the expressio unius canon is further suggested by other arguments he presses at various points. See, e.g., id. at 1269-70 (arguing for application of expressio unius to provisions of Article I enumerating various consent-giving powers of Congress, thereby rendering them exclusive set); id. at 1271 (arguing for application of expressio unius to Compact Clause, thereby rendering Congress's power to approve state agreements and compacts exclusive of any other congressional power over agreement-approving); id. at 1275-76 (arguing implicitly for application of expressio unius to Original Jurisdiction Clause and approving Chief Justice Marshall's controversial application of canon in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discussed in Part III.E, infra). To be sure, Professor Tribe's article also made the narrower argument he now articulates in his letter. See, e.g., id. at 1244 (arguing that "the most plausible way of reading the Constitution . . . would be to read as exclusive those provisions that specify how elements of the supreme law of the land are to be adopted"). But in his original text, that argument was additional to, and separate from, the broader expressio unius argument that he also articulated at numerous points in his discussion. It was cast, moreover, as a structural argument resting principally upon federalism grounds. As so understood, I criticize this view at length in Part III.C.1, infra. See also infra note 126 (noting Professor Tribe's emphasis on Framers' concern for state sovereignty). Because the broader expressio argument is so strongly suggested by his text, I continue to attribute it to Professor Tribe. In doing so, however, I do not mean to question his characterization of his subjective intention. This confusion over the "plain meaning" of Professor Tribe's text is itself an ironic commentary on the very hazards of textualism I hope to illustrate.
119. See Alexander Hamilton, Pacificus No. 1 (June 29, 1793), reprinted in 15 The Papers of Alexander Hamilton 33, 39 (Harold C. Syrett ed., 1969) [hereinafter Pacificus No. 1]. Writing as Pacificus in the celebrated Pacificus-Helvidius debate with Madison, Hamilton claimed that the enumerated powers were "intended by way of greater caution, to specify and regulate the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of power." Id. at 39.
120. U.S. Const. art. II, § 1.
121. See Pacificus No. 1, supra note 106, at 39.
122. See Tribe, Taking Text, supra note 3, at 1269 & n.165 (explicitly endorsing Hamilton's view); see also Tribe, Constitutional Law, supra note 11, § 4-2, at 210-11 & 210 n.1 (same). In contrast to Professor Tribe, many still find Hamilton's position unsettling (myself among them), see infra note 342 and accompanying text, but it is difficult to deny its force without casting doubt upon important aspects of the modern presidency. See Henkin, supra note 9, at 39-41 (describing difficulty of accounting for President's expansive power over foreign affairs on basis of enumerated powers alone). Like Hamilton, Professor Tribe rests his view largely on differences in the wording of the vesting clauses of Articles I and II. Article I provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," U.S. Const. art. I, § 1 (emphasis added), whereas Article II begins: "The executive Power shall be vested in a President of the United States of America," id. art. II, § 1. On this basis, Professor Tribe argues that the Framers intended thereby to limit Congress to its enumerated powers (i.e., the powers "herein granted") but to allow the President to exercise full executive powers, the express enumerations in Article II apparently being merely exemplary of, or in some manner limiting, the more general grant. See Tribe, Constitutional Law, supra note 11, § 4-2, at 210-11 & 210 n.1; Tribe, Taking Text, supra note 3, at 1269. There are numerous and obvious textual difficulties with the argument. Not the least of these is its inability to explain persuasively why the Framers would have burdened Article II with a list of enumerated powers that would obviously have been subsumed under the Hamiltonian Executive Power Clause - such as, for example, the commander-in-chief power, see U.S. Const. art. II, § 2, cl. 1; the power to require written opinions of the heads of departments, see id.; the pardon power, see id.; and the duty to faithfully execute the laws, see id. art. II, § 3. Curiously, given his reliance on the expressio unius maxim, Professor Tribe never confronts this powerful expressio unius objection. Equally important, Article III, like Article II but unlike Article I, unreservedly vests the "judicial Power of the United States . . . in one supreme Court." Id. art. III, § 1. Yet, it is settled that the judicial power extends only to the jurisdictional grants enumerated in Article III, Section 2. See, e.g., Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) (holding that Congress may subtract from, but not add to, jurisdiction granted to lower federal courts in Article III). But see Kansas v. Colorado, 206 U.S. 46, 81-84 (1907), in which Justice Brewer argued in obscure dicta for a Hamiltonian reading of Article III on the same textual grounds Hamilton advanced in relation to Article II - an opinion no doubt meriting in this respect the appellation "derelict on the waters of the law." Ironically, the wording of all three articles was the same until late in the Convention when Gouveneur Morris, charged with making purely stylistic revisions, surreptitiously slipped the qualifying language into Article I. Some have thought, with substantial justification, that he did so in an effort to work substantive changes without calling the Convention's attention to his handiwork. See Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins 37 (1976). In any event, Professor Tribe's acceptance of the Hamiltonian reading simply suggests how weak the expressio unius principle is even in his constitutional universe. If the compelling case for its application presented by Article II can be overcome by the admittedly weak textual case which both he and Hamilton accept as sufficient, then surely the far weaker expressio unius inference from the Treaty Clause - which cannot take strength from the imperative to avoid rendering constitutional language nugatory - can be overcome by the considerably more persuasive textual basis for authorizing agreements found in the Necessary and Proper Clause.
123. If powers are expressly enumerated in other parts of the Constitution, as they in fact are in a number of cases, Congress can of course exercise them even if we were to give Article I an exclusive reading. Consider, for example, the powers listed in Article IV, which include certain authority over the implementation of the Full Faith and Credit Clause, see U.S. Const. art. IV, § 1; the power to admit new states, see id. art. IV, § 3, cl. 1; the power to dispose of and make all needful rules and regulations respecting the territory and property of the United States, see id. art. IV, § 3, cl. 2; and whatever powers are implied in the obligation to guarantee each state a republican form of government, see id. art. IV, § 4. The powers enumerated in Article I would be exclusive of any powers not included in that article or in any other part of the Constitution.
124. See id. amend. X. The Tenth Amendment directs that the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Id.
125. Under the Necessary and Proper Clause, the Court has permitted Congress to charter banks and other corporations, see McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (upholding Congress's power to charter second Bank of United States); The Pacific Railroad Removal Cases, 115 U.S. 1, 14-15 (1885) (upholding Congress's power to charter railroad corporations); to make paper money a legal tender, see The Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1870) (upholding implicitly Congress's power to make treasury notes legal tender in payment of all debts and obligations); and to undertake investigations with the power to issue subpoenas and punish contempts, see McGrain v. Daugherty, 273 U.S. 135 (1927) (upholding Congress's investigatory power, including its power to compel testimony by subpoena); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821) (upholding Congress's power to hold nonmembers in contempt of Congress for attempting to bribe member).
126. 299 U.S. 304 (1936).
127. Id. at 318.
128. Perhaps the most famous instance was the Court's opinion in the Chinese Exclusion Case, 130 U.S. 581, 603-04 (1889) (upholding power to exclude aliens on ground that it is an incident of every independent nation). But there are many others. See, e.g., Perez v. Brownell, 356 U.S. 44, 57-60 (1958) (upholding power of Congress to withdraw citizenship of citizens who vote in foreign elections), overruled on other grounds in Afroyim v. Rusk, 387 U.S. 253 (1967); Blackmer v. United States, 284 U.S. 421, 436-38 (1932) (upholding power to compel U.S. citizens to return from abroad to testify in criminal proceedings); Fong Yue Ting v. United States, 149 U.S. 698, 705-14 (1893) (finding power to exclude or expel aliens inherent in sovereignty); Jones v. United States, 137 U.S. 202, 212 (1890) (finding authority to acquire territory by discovery and occupation and exercise jurisdiction over it in rights of nations under international law); Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42 (1890) (upholding power to acquire territory by conquest or treaty); American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542-43 (1828) (Marshall, C.J.) (same). The latter three cases, among others, resolved any doubts about whether the Constitution permitted the United States to acquire new territory, a question that had been opened by President Jefferson's ruminations over the constitutionality of the Louisiana Purchase.
129. This reading is supported by Professor Tribe's sweeping but unsupported assertion that "those provisions of the Constitution that call into being the very architecture of our government provide specific and exclusive instructions, not mere options." Tribe, Taking Text, supra note 3, at 1274 n.181. If this were true, how could we explain, as discussed below, independent executive agencies, Article I courts, federal common law, and the President's legislative powers in foreign affairs? See infra notes 117-18 and accompanying text. Here, too, I suspect that Professor Tribe would not now endorse the apparent implications of his text.
130. Humphrey's Executor v. United States, 295 U.S. 602 (1935), is the leading case, from which the Supreme Court has never substantially retreated. See id. at 629-31 (affirming power of Congress to restrict presidential removals of officers of quasilegislative agencies); Wiener v. United States, 357 U.S. 349, 353-56 (1958) (discussing and following Humphrey's Executor in context of quasijudicial agency); Morrison v. Olson, 487 U.S. 654, 687-91 (1988) (same). In Morrison, the Court upheld the power of Congress to restrict the removal of even some core executive officers, in that case independent counsel appointed pursuant to the Ethics in Government Act. For further discussion of the Appointments Clause, see infra Part III.A.2. Despite the unambiguous grant of the executive power to the President, Professor Tribe himself agrees that "there is nothing to stop the legislature from vesting executive authority in officers substantially independent of the White House." Tribe, Constitutional Law, supra note 11, § 4-10, at 253. For good discussions of the issues posed by the independent agencies, see Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev. 596 (1989);
131. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984).
132. For recent debates about the Framers' intentions, compare Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 642-45 (1994) (arguing that members of First Congress conceived of executive as unitary branch and agreed that President either had power to remove all inferior executive officers or none),
133. with Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1788-92 (1995) (disputing idea that Framers shared any clear conception of scope of executive branch and hence of Congress's power to create independent agencies),
134. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 106-08 (1994) (arguing that insulating offices such as Federal Reserve Board from presidential authority is consistent with Framers' intended scheme).
135. See U.S. Const. art. III, § 1. Federal judges, of course, are entitled to life tenure and salary protection. See id. The leading contemporary case is Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 69-70, 83-84 (1982) (striking down bankruptcy courts but affirming wide area for Article I courts in cases arising under federal law). The earlier cases begin with Chief Justice Marshall's opinion in Canter, 26 U.S. (1 Pet.) at 545 (upholding congressional power to assign territorial courts jurisdiction over admiralty cases), and have continued unimpeded since. See, e.g., Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 275, 282-85 (1856) (distinguishing between matters that are inherently judicial and those raising questions of public right that may be assigned to non-Article III tribunals); Ex parte Bakelite Corp., 279 U.S. 438, 458-59 (1929) (holding that Court of Customs Appeals was Article I court); O'Donoghue v. United States, 289 U.S. 516, 551 (1933) (holding courts of District of Columbia to be Article III courts); Williams v. United States, 289 U.S. 553, 581 (1933) (holding Court of Claims to be Article I court); Glidden v. Zdanok, 370 U.S. 530, 541-43 (1962) (holding Court of Claims and Court of Customs and Patent Appeals to be Article III courts). The Court's decisions may be "landmarks on a judicial 'darkling plain' where ignorant armies have clashed by night." Northern Pipeline, 458 U.S. at 91 (Rehnquist, J., concurring) (characterizing Justice White's view of Court's past precedents). Nevertheless, even in the midst of the epochal battle between Justices Brennan and White over how to preserve the soul of Article III, neither called into question the very substantial power of Congress to give cases arising under federal law over to Article I tribunals and administrative agencies. Compare id. at 69-70, 83-84 (Brennan, J.), with id. at 113-15 (White, J., dissenting). Justice Brennan, speaking for a plurality, sought to confine the nonexclusivity of Article III to three categories: territorial courts, courts-martial, and courts or agencies adjudicating claims falling under the vaguely drawn "public rights" doctrine (i.e., cases between the government and others which could have been resolved solely by the executive without any judicial role). See id. at 63-70 (Brennan, J.). Justice White thought the Court's past precedents could not be so easily cabined and preferred to recognize far more discretion in Congress to assign matters within the judicial power to non-Article III tribunals. See id. at 103-05, 114-15 (White, J., dissenting) (arguing for loose balancing test under which Congress would be free to assign cases to non-Article III tribunals so long as Article III values are not substantially undermined). Both, however, sought to assure Congress that the administrative state as we know it was not under a constitutional cloud. See id. at 69-70, 83-84 (Brennan, J.) (affirming that Congress may provide that persons seeking to enforce particular statutorily created rights must do so before administrative tribunals); id. at 113-15 (White, J., dissenting) (concluding, in light of large body of precedent, that it was "too late" to deny constitutionality of administrative agencies). Even the careful limits Justice Brennan sought to establish in Northern Pipeline for state law actions, moreover, have not been strictly respected by the Court in subsequent decisions. See Commodity Futures Trading Comm'n v. Shor, 478 U.S. 833 (1986) (allowing non-Article III tribunal to adjudicate state law claims in certain cases); cf. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568 (1985) (expanding public rights exception). Furthermore, when we turn from legislative intrusions on the executive and judicial realm to judicial and executive trespasses on the legislative function, we continue to discover overlapping powers. The quasilegislative powers of the federal courts to promulgate federal common law are well known if still controversial. For recent examples, see Boyle v. United Techs. Corp., 487 U.S. 500, 511-13 (1988) (fashioning federal common law defense for federal contractors sued in state law products liability actions); Westfall v. Erwin, 484 U.S. 292, 295-98 (1988) (considering limits of the federal common law immunities of federal officials); United States v. Little Lake Misere Land Co., 412 U.S. 580, 592 (1973) (applying Clearfield Trust federal common law test, see Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67 (1943), to determine law applicable to contract suits brought by United States). The federal courts often create a kind of quasiconstitutional common law. The dormant Commerce Clause cases, among others, are probably best understood in this light. See Henry P. Monaghan, The Supreme Court, 1974 Term - Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 17 (1975) (arguing in favor of this view).
136. That is the point, I take it, of Justice Jackson's famous tripartite division of executive activities in the Steel Seizure Case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring): "[T]here is a zone of twilight in which [the President] and Congress may have concurrent authority . . . ." Id. at 637. Nowhere is the overlap more extended than in foreign affairs. As Professor Henkin puts it: Jackson wrote in the Steel Seizure Case, which the Court treated as domestic, not as involving foreign affairs. Even in domestic matters, Jackson implies, there is a "twilight zone" clearly within the constitutional domain of Congress in which the President could also act. In foreign affairs, surely, where the President admittedly has large power, the fact that Congress can act does not, of itself, prove that the President could not; Presidents, we have seen, have acted unilaterally in foreign affairs matters which Congress might undoubtedly have regulated, where Congress had not in fact done so. Henkin, supra note 9, at 95 (footnote omitted); see also id. at 92-123 (describing some areas of overlap in foreign affairs). Specific examples are discussed infra notes 120-23, 131-35, 138, 197-209, 398-403, and accompanying text. Of course, exclusivity, in the constitutional context, lies more on a spectrum than in two opposite poles. The question is usually better stated as exclusivity as to what and as against whom, rather than exclusivity per se. Even the concepts of exclusivity and nonexclusivity have many variegated meanings depending upon context. The Appointments Clause, U.S. Const. art. II, § 2, cl. 2, is a case in point. Professor Tribe believes that it is common ground that the senatorial advice and consent procedure is exclusive as to other means of appointment in the case of principal officers. See Tribe, Taking Text, supra note 3, at 1272. But even this much is not entirely so. Congress has long purported to insist that (some) appointees meet specified qualifications. See Henkin, supra note 9, at 122 & 400 nn.104-05. More significant, although the Appointments Clause explicitly mandates the senatorial advice and consent procedure for "Ambassadors, other public Ministers and Consuls," U.S. Const. art. II, § 2, cl. 2, presidents, with the acquiescence of senates and congresses, have from the beginning disregarded this command for certain presidential appointees charged with carrying out foreign policy tasks on his behalf. As Corwin put it nearly a century ago: Such agents have been justified as "secret agents," yet neither their existence nor their mission is invariably secret. They have been called "private agents of the President," his "personal representatives," yet they have been sometimes commissioned under the great seal. They have been justified as organs of negotiation and so as springing from the Executive's power in negotiating treaties, yet this is also a normal function of our regular representatives. They have been considered as agents appointed for special occasions, but, as we have seen, the term "public ministers" of the Constitution is broad enough to include all categories of diplomatic agents. . . . In short, the only test which is generally available for distinguishing this kind of agents [sic] from the other kind is to be found in the method of their appointment. Edward S. Corwin, The President's Control of Foreign Relations 65 (1917) [hereinafter Corwin, President's Control];
137. see also Edward S. Corwin, The President: Office and Powers, 1787-1984, at 236-37 (Randall W. Bland et al. eds., 5th rev. ed. 1984) [hereinafter Corwin, The President] (noting that beginning with George Washington presidents have appointed "secret agents" without advice and consent of Senate); Corwin, President's Control, supra, at 58-66 (same); Henkin, supra note 9, at 42 & 340 n.22 (same). See generally Henry Merritt Wriston, Executive Agents in American Foreign Relations (1929). For an early Attorney General opinion upholding the practice, see 7 Op. Att'y Gen. 186, 204-06, 212-13 (1856). This practice, with its roots in President Washington's administration, ought to provide a clear warning against categorical thinking and rigid demarcations in the field of foreign affairs. In any case, it is not only the Appointments Clause's procedure for appointing principal officers that is nonexclusive in part. The same applies to the President's power to remove principal officers. While Congress may not participate directly in removals, it may in some cases limit the substantive grounds on which the President may remove. See, e.g., Morrison, 487 U.S. at 685-91 (holding that Congress has power to establish a "good cause" requirement for removal of independent counsel). In others, however, where it would undermine the President's ability to carry out his constitutional duties, it cannot. See id. (stating test).
138. Consider, for example, Congress's power to make rules for the government and regulation of the land and naval forces. See U.S. Const. art. I, § 8, cl. 14. Despite the explicit grant to Congress, presidents have asserted, and the Court has held, that the President has inherent power as Commander-in-Chief to constitute courts-martial and impose other rules for governing military life. See Swaim v. United States, 165 U.S. 553, 557-58 (1897) (upholding President's power to constitute courts-martial); see also Kurtz v. Moffitt, 115 U.S. 487, 503 (1885) (giving effect to regulations providing rewards for apprehension of deserters promulgated on President's own authority); United States v. Eliason, 41 U.S. (16 Pet.) 291, 301 (1842) (stating that "power of the executive to establish rules and regulations for the government of the army, is undoubted," although in that case there was act of Congress); Berdahl, supra note 118, at 138-42 (stating that Commander-in-Chief Clause empowers President to convene and regulate courts-martial); Henkin, supra note 9, at 46 (noting that presidents have claimed authority to make rules for government and regulation of land and naval forces based on commander-in-chief power). Likewise, under his powers as sole organ of the nation in conducting its foreign affairs and as Commander-in-Chief, the President has invaded the spheres of many other congressional powers, including even the power to regulate foreign commerce. See Henkin, supra note 9, at 41-46, 54-61, 92-96, 103-05 (providing examples). Consider, for example, the case of foreign sovereign immunity, the international law doctrine that affords foreign sovereigns immunity from suit in United States courts. Until 1976, when Congress enacted the Foreign Sovereign Immunities Act, Pub. L. No. 94-583 § 4(a), 90 Stat. 2892 (1976) (codified as amended at 28 U.S.C. §§ 1602-1611 (1994)), the State Department could in any case involving a foreign sovereign submit a "suggestion" as to immunity that would bind the court. See Hoffman, 324 U.S. at 36 (upholding Executive Branch's power); Ex parte Republic of Peru, 318 U.S. at 589 (same). In 1976, however, Congress dethroned the Executive and, promulgating an elaborate regulatory scheme, asserted its right, presumably at least in part under its foreign commerce powers, to control the field. See Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602, 1611 (1994) (removing presidential authority to make suggestion of immunity and replacing it with objective standards for judicial application). Several presidents, without statutory authority, have permitted the landing of foreign submarine cables, see 22 Op. Att'y Gen. 13 (1898); Corwin, The President, supra note 119, at 226-27, and the introduction of electricity from abroad, see 30 Op. Att'y Gen. 217 (1913); Corwin, The President, supra note 119, at 227. Without statutory authority, President Wilson ordered the closure of a foreign radio station because of noncompliance with naval censorship regulations. See 30 Op. Att'y Gen. 291 (1914) (justifying closure of Marconi station under commander-in-chief power); Corwin, The President, supra note 119, at 227 (noting same); Henkin, supra note 9, at 345 n.43 (same). Under his power to make unilateral executive agreements, the President has frequently done the same. See Henkin, supra note 9, at 43, 219, 225-26 (giving examples). The war powers of the two branches are also substantially overlapping, see infra note 209; so too may be the commander-in-chief power and the power to make rules for captures on land and water. See infra note 209; infra notes 197-98 and accompanying text.
139. The pardon power is entirely nonexclusive, see infra notes 199-201 and accompanying text, while the power to require written opinions by the heads of departments seems largely, if not entirely, so, see infra notes 202-04 and accompanying text. For other examples, see infra note 209 and accompanying text.
140. See the discussion of the admiralty and maritime power infra notes 131-34 and accompanying text.
141. Perhaps an even more telling example is the immigration power. Not only has the Court long recognized it as an unenumerated power of Congress implied in the nation's sovereign status under international law, see supra note 115 and accompanying text, it has also found that the President has a partially concurrent implied power over the subject. See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542-43 (1950) (holding that power to exclude aliens is "inherent in the executive department of the sovereign"). For further discussion, see Henkin, supra note 9, at 44 & 342 n.32. Thus, even unenumerated powers can be overlapping.
142. So Professor Tribe indicates in his letter commenting on the manuscript of this Article after it was accepted for publication. See Tribe Letter to Golove of Apr. 30, 1998, supra note 80, at 1-3.
143. See id.
144. In his most explicit statement of this narrower claim, Professor Tribe argued: [T]he most plausible way of reading the Constitution as a legal text, in light of the historical background against which it was adopted - and particularly in light of the overarching concern with state sovereignty that both Article II and Article V reflect - would be to read as exclusive those provisions that specify how elements of the supreme law of the land are to be adopted. Tribe, Taking Text, supra note 3, at 1244.
145. See infra Part III.C.1.
146. See Tribe Letter to Golove of Apr. 30, 1998, supra note 80, at 1-3 (stating that his expressio argument is limited to lawmaking provisions of Constitution, but not mentioning federalism concerns in support of this version of argument).
147. See American Trucking Ass'n v. United States, 344 U.S. 298, 310-13 (1953) (upholding power of Congress to delegate power to make binding regulations).
148. For further discussion of these two questions, see supra note 118.
149. U.S. Const. art. III, § 2, cl. 1. This is the only mention of the admiralty and maritime power in the Constitution.
150. 141 U.S. 1 (1891).
151. Id. at 12; see also Panama R.R. Co. v. Johnson, 264 U.S. 375, 385-86 (1924) (reaffirming holding in Garnett). The Court in Garnett held that Congress's legislative authority over admiralty and maritime law is "coextensive with that law. . . . [I]n maritime matters, it extends to all matters and places to which the maritime law extends." Garnett, 141 U.S. at 12. The admiralty power is a good case in point because of its close parallels to the treaty power. Although it has long been an area of plenary federal control, Article I is silent on the subject, just as it is on the power to authorize agreements. In contrast, just as Article II grants the treaty power to the President and the Senate, Article III expressly grants the admiralty power to the federal courts. The Article III grant led the Court in early decisions to limit Congress's authority over admiralty to what it could otherwise reach under the Commerce Clause. See, e.g., The Daniel Ball, 77 U.S. (10 Wall.) 557, 564-65 (1871) (holding that Congress has no power to regulate intrastate shipping over navigable waters); Moore v. American Transp. Co., 65 U.S. (24 How.) 1, 39 (1860) (holding that Limitation of Liability Act can only apply to vessels engaged in foreign commerce or commerce between states); The Passenger Cases, 48 U.S. (7 How.) 283, 400 (1849) (opinion of McLean, J.) (stating that Congress could not impose licensing requirements on vessels engaged in intrastate commerce). Moreover, the Court initially viewed the judicial role as limited to applying the maritime law of nations. See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 335 (1816) (reasoning that Constitution vests admiralty jurisdiction in federal courts because "the law and comity of nations" form an "essential inquiry" in such cases); see also American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 545-46 (1828) (Marshall, C.J.) (denying that maritime cases arise under Constitution or laws of United States but rather are ruled by "the law admiralty and maritime, as it has existed for ages"). As time went on, however, the Court took a more assertive role. See, e.g., The Lottawanna, 88 U.S. (21 Wall.) 558, 576-77 (1874) (asserting expanded conception of Court's role in declaring maritime law, while affirming traditional view that only Congress can "make the law"). For an excellent historical account of the various metamorphoses in the construction of the admiralty and maritime power, see Note, From Judicial Grant to Legislative Power: The Admiralty Clause in the Nineteenth Century, 67 Harv. L. Rev. 1214, 1230-37 (1954);
152. see also Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 45-47 (2d ed. 1975) (detailing sources of U.S. admiralty law). Apparently, Gilmore and Black thought the expressio inference linguistically strong, referring to the "constitutional puzzle" of plenary congressional power over general maritime law and to the Court's reasoning in later cases affirming plenary congressional power as "forced." Gilmore & Black, supra, at 47. Of course, this troubled them not an iota. See id. (affirming modern practice). Nor has it troubled Professor Tribe. See Tribe, Constitutional Law, supra note 11, § 5-3, at 304 & n.13 (same). One might seek to overcome the expressio inference by arguing that Congress's necessary and proper power to carry into execution the jurisdictional power granted to the courts gives it power to prescribe the law to be applied by the courts in maritime cases, although such a view might have problematic implications for the Diversity Jurisdiction Clause, see U.S. Const. art. III, § 2, cl. 1. Presumably, something like this line of reasoning underlies Professor Tribe's view. But the linguistically powerful retort, from the expressio unius side, would be that the Framers, had they intended a plenary authority in Congress, would hardly have specified the jurisdictional grant but failed to mention the substantive power. In this sense, the expressio unius argument against a necessary and proper congressional power over maritime law is stronger than the argument against congressional power to authorize agreements. Another difference between the admiralty power and the power to approve agreements is that the former implies congressional supremacy, whereas the latter does not. Indeed, given general limits on the legislative powers of the courts, implied congressional power is not only supreme over the explicit judicial power but may even outstrip it in extent. Thus, for example, there may well be changes in maritime law that Congress may make, but that would be seen as beyond the proper authority of the courts. In contrast, like statutes and treaties, congressional-executive agreements and treaties are equal in status. As a result, the last in time controls. See The Chinese Exclusion Case, 130 U.S. 581, 599-600 (1889) (applying later-in-time statute which was inconsistent with earlier treaty obligation and declaring that treaties and statutes have equal constitutional status); Whitney v. Robertson, 124 U.S. 190, 194 (1888) (declaring that treaties and statutes have equal constitutional status and that later in time controls); Restatement, supra note 9, § 115(1), (2) (affirming later-in-time principle); id. § 115 cmt. c (indicating that congressional-executive agreements supersede inconsistent prior law or agreement).
153. See supra note 133.
154. Professor Tribe does not tell us why this should be so, but a number of arguments suggest themselves. From an historical perspective, the lawmaking provisions - particularly those dealing with statutemaking - were carefully honed to protect a number of fiercely competing interests, and the balance struck might be undermined by permitting the use of textually unspecified procedures: "Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only 'be exercised in accord with a single, finely wrought and exhaustively considered, procedure.'" Clinton v. City of New York, 118 S. Ct. 2091, 2103-04 (1998) (quoting I.N.S. v. Chadha, 462 U.S. 919, 951 (1983)). This conclusion is also supported by more theoretical concerns. Consider the perspective of the drafters of any well-framed constitution. Arguably, they would be vitally concerned to establish the basic rules governing lawmaking. This would be necessary to avoid endless contestation over lawmaking procedures and to ensure the realization of the procedural protections built into the legislative process. See Christopher I. Eisgruber, Should Constitutional Judges Be Philosophers? 13 (1997) (unpublished manuscript) (on file with the New York University Law Review) (arguing that ideal framers would adopt fixed concrete provisions so as to establish basic rules of political game and avoid prolonged destructive contestation over procedures). For this reason as well, then, it might be reasonable to assume that when a constitution does define those procedures, they ought to be deemed exclusive of any textually undefined alternatives. As a corollary to this principle, moreover, it is equally sensible to presume that the legislature cannot create alternative lawmaking procedures under its general legislative powers, e.g., under the Necessary and Proper Clause. Otherwise, a temporary majority could extend or even entrench its own power by assigning legislative powers to, say, its preferred political party, or, less dramatically, it could undermine the procedural safeguards built into the text-based procedures. The Supreme Court seems to agree. See Clinton, 118 S. Ct. at 2102-03, 2107 (striking down Line Item Veto Act on ground that Article I, Section 7's procedure for adopting, amending, and repealing laws is exclusive, thereby ruling out any textually unspecified repeal power in President, and noting that "Congress cannot alter the procedures set out in Article I, § 7, without amending the Constitution"); cf. A.L.A. Schlechter Poultry Corp. v. United States, 295 U.S. 495, 521-23, 537 (1935) (striking down congressional delegation of legislative authority in National Industrial Recovery Act in part because delegatees were private parties, viz., representatives of affected industries). Although I cannot pursue the matter here, I believe that the grounds for applying the presumption discussed in the text to provisions for constitutional amendments are far weaker than the grounds for applying it to basic lawmaking provisions.
155. The Court's recent decision in Clinton v. City of New York illustrates the distinction between these two questions. None of the justices, including the three dissenters, believed there was any plausible textual basis for a presidential power to repeal acts of Congress. In the absence of any textual basis for the line item veto, they all agreed, unsurprisingly, that the Article I, Section 7 procedure for making and repealing laws was exclusive. See Clinton, 118 S. Ct. at 2103-04; id. at 2115-16 (Scalia, J., concurring in part and dissenting in part); id. at 2121 (Breyer, J., dissenting). The dissenters sought to uphold the Line Item Veto Act on entirely different grounds - that it did not authorize the President to repeal acts of Congress within the meaning of Article I, but only to exercise delegated legislative power, which Congress could properly delegate under its Article I, Section 8 powers. See id. at 2116-18 (Scalia, J., concurring in part and dissenting in part); id. at 2125-31 (Breyer, J., dissenting). Consider, in contrast, the President's legislative powers in foreign affairs. See supra note 118. In this area, the President acts not on the basis of a delegation from Congress, but on the basis of his own substantive powers over foreign affairs and the implied powers doctrine. See infra notes 328-29 and accompanying text for further discussion of the implied powers doctrine as applied to the President's powers. Incident to his diplomatic powers, for example, the President has the implied power to determine on a case-by-case basis whether the courts should invoke sovereign immunity to dismiss suits against foreign states. For further discussion, see supra note 118. Here, then, there is an arguable textual basis for overlapping legislative powers in both Congress and the President. As a consequence, Professor Tribe's principle of presumptive exclusivity is inapplicable, and the Court has found, pace Professor Tribe, that all things considered, the President should have concurrent legislative powers in this context. See supra note 118. Ironically, Professor Tribe takes no note of the far stronger textual grounds for congressional power to authorize the President to approve agreements, given its status as the national legislative body and the explicit incorporation of the implied powers doctrine in the Necessary and Proper Clause, see supra notes 49-56, 67, and accompanying text; infra notes 235-37 and accompanying text, than for the President to make law in the field of foreign affairs. For a middle ground example - and one closely related to the line item veto controversy - consider the much vexed question of impoundments. Presidents have sometimes claimed an executive power, even in the absence of an act of Congress, to decline to spend funds appropriated for specific purposes by Congress. Here, the claim is that the President's explicit Article II power to execute the law gives him the authority to impound. For further discussion, see Tribe, Constitutional Law, supra note 11, § 4-12, at 258 (discussing issue and relevant Supreme Court decisions). While I agree that this argument ought properly to be rejected, as the Court implicitly did in Train v. City of New York, 420 U.S. 35, 41-49 (1975) (refusing to construe congressional statute to permit impoundment), this position cannot be persuasively defended on the basis of any presumption of exclusivity but only on a contextual assessment that textual and structural considerations argue strongly against recognizing the power. See Tribe, Constitutional Law, supra note 11, § 4-12, at 258-59 (arguing against presidential impoundment power not on basis of any presumption of exclusivity but on historical, structural, and textual grounds, including conflict impoundment power would create with veto provisions of Article I, Section 7). As Professor Tribe has always seemed to recognize in the past, there is simply no way to avoid the difficult interpretive questions these kinds of cases present, and categorical presumptions will not advance the effort.
156. For further discussion of Congress's foreign affairs authorities, see supra notes 28, 49-52, and accompanying text; infra notes 298-304 and accompanying text.
157. As Justice Breyer recently put it in reaffirming the pervasiveness of overlapping powers: This Court has frequently found that the exercise of a particular power, such as the power to make rules of broad applicability or to adjudicate claims, can fall within the constitutional purview of more than one branch of Government. The Court does not "carry out the distinction between legislative and executive action with mathematical precision" or "divide the branches into watertight compartments," for as others have said, the Constitution "blend[s]" as well as "separat[es]" powers in order to create a workable government. Clinton, 118 S. Ct at 2123 (1998) (Breyer, J., dissenting) (citations omitted) (quoting Springer v. Philippine Islands, 277 U.S. 189, 211 (1928) (Holmes, J., dissenting)); see also 1 Kenneth Culp Davis, Administrative Law Treatise § 1.09, at 68 (1958) (observing that solutions to contemporary administrative challenges may require that executive, legislative, and judicial powers be blended in a single agency).
158. Specifically, the Appointments Clause provides that the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. U.S. Const. art. II, § 2, cl. 2.
159. As we have already seen, however, this claim is not in fact accurate. See supra note 119. From the outset, presidents have appointed various diplomatic agents qualifying in all relevant respects as ambassadors or public ministers, without obtaining the Senate's advice and consent. See supra note 119. Of course, the fact that the procedure for appointing principal officers is not, as Professor Tribe blithely assumes, wholly exclusive seriously undermines his Appointments Clause argument. I nevertheless leave this point aside. Even were the Appointments Clause exclusive, as he claims, his argument fails on the various other grounds that I elaborate below.
160. See Tribe, Taking Text, supra note 3, at 1272-73.
161. Id. at 1272.
162. See id. at 1273.
163. Id. at 1274.
164. On the ambiguity of the concept of exclusivity, see supra note 119.
165. Indeed, he believes that placing any weight on these differences is "particularly odd." Tribe, Taking Text, supra note 3, at 1274 n.182.
166. U.S. Const. art. II, § 2, cl. 2.
167. Id.
168. Reading the Appointments Clause as not excluding a congressional role in principal appointments would not literally render the proviso surplusage. Other reasons for retaining the language can be imagined; they are just implausible for textual and structural reasons. For example, it might be suggested that the Framers wanted Congress to retain plenary authority over principal appointments but to have a more limited authority over inferior appointments. Under this view, the language of the proviso would be limiting, specifying a more constricted range of options for Congress over inferior appointments. This interpretation, however, stands the Framers' evident intention on its head, turning the appointments power into a largely legislative rather than executive function. In any case, it founders on the shoals of the text itself. Finding a limitation rather than an augmentation in a clause that begins "but the Congress may . . .," id. art. II, § 2, cl. 2, is not just linguistically awkward, but virtually textually absurd. The structure of the clause, moreover, is inconsistent with this reading. It authorizes - "but the Congress may . . ." - but does not require Congress to treat some officers as inferior. Congress, however, would have no reason ever to do so if by deeming an officer inferior it thereby limited its range of options. In other words, if the proviso was a limitation on, rather than an expansion of, Congress's powers, then the Framers would certainly not have left the invocation of those limits entirely to Congress's discretion. Alternatively, it might be argued that the Framers assumed that under Article I Congress would have the power to vest appointments in itself, either by reserving to itself the power to appoint or by requiring its approval of the President's nominations, but that it would not have power to delegate the appointments power to any other organ of government. The proviso, then, would expand Congress's power over appointments of inferior officers by giving it vesting options that would not apply to principal officers. This argument, however, simply trades one implausibility (that the proviso constricts rather than expands congressional power) for another: If the Framers had intended to give Congress Article I legislative power to make appointments, Congress would have as much authority to delegate this power to, say, the President or the heads of departments, as to retain the power in itself. Its Article I powers, then, would engulf the proviso, rendering it surplusage. As above, of course, this reading of the text would also stand the principle of the separation of powers on its head.
169. The Federalist No. 32, supra note 94, at 199 (referring to clause in Article I, Section 10 barring states without consent of Congress from laying any imposts or duties specifically on imports or exports, and arguing that it would not have been included had affirmative Article I, Section 8 power of Congress to lay and collect taxes, duties, and imposts implicitly prohibited states from imposing taxes on any articles whatsoever). This answers Professor Tribe's concern about Congress vesting the appointment of a Trade and Commerce Secretary, a principal officer, in the Supreme Court. See Tribe, Taking Text, supra note 3, at 1274-75. Such a power is excluded because of the clear implications of the proviso. The Framers would not have expressly granted Congress the power to vest the appointment of inferior officers in, inter alia, the courts, if Congress had in any case retained general Article I authority to vest appointments of both principal and inferior officers in the courts. For further discussion, see infra note 319.
170. 272 U.S. 52 (1926).
171. Id. at 127, 129.
172. See Freytag v. Commissioner, 501 U.S. 868, 883-84 (1991) (holding that Congress may only vest appointments of inferior officers in three ways specified in Appointments Clause); cf. Buckley v. Valeo, 424 U.S. 1, 127 (1976) (noting that "[w]hile the Clause expressly authorizes Congress to vest the appointment of certain officers in the 'Courts of Law,' the absence of similar language to include Congress must mean that neither Congress nor its officers were included within the language 'Heads of Departments' in this part of cl. 2").
173. See Tribe, Taking Text, supra note 3, at 1272-75.
174. See id. at 1273 (noting that "Clause 2's affirmative authorization for Congress to alter the procedures for appointing inferior officers suggests that the Constitution would be explicit if the prescribed methods of confirming principal officers were not exclusive").
175. See id. at 1272 (arguing that "there is a telling difference between the Treaty Clause and the immediately adjacent Appointments Clause: only the Appointments Clause provides for alternative consent procedures").
176. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (Marshall, C.J.).
177. U.S. Const. art. I, § 3, cl. 6 (emphasis added). Consider as well Article I, Section 2, Clause 5 which declares that the House "shall have the sole Power of Impeachment." Id. art. I, § 2, cl. 5 (emphasis added).
178. Similarly, the Exclusive Legislation Clause, id. art. I, § 8, cl. 17, empowers Congress to "exercise exclusive Legislation" over the district ceded by states for the seat of the government and likewise over places purchased from states for the purpose of erecting forts, government buildings, and the like. Id. (emphasis added). Presumably, this was meant to emphasize that the states which ceded the district or sold the places would have no continuing legislative authority over them. See generally Tribe, Constitutional Law, supra note 11, § 5-11, at 327-29 (discussing interpretation of Exclusive Legislation Clause). Would Professor Tribe conclude, then, that all of the other grants in Article I, Section 8 are nonexclusive, permitting concurrent state regulation of their subject matter in the absence of congressional preemption? After all, none contain similarly explicit language of exclu-sivity. For further discussion, see infra note 209. Ironically, despite the explicit language of exclusivity in the Exclusive Legislation Clause, the Supreme Court has permitted states to exercise concurrent legislative authority in certain respects. See, e.g., United States v. State Tax Comm'n, 412 U.S. 363, 369-71 (1973) (holding that previously enacted state law continues to govern state property acquired by federal government with state's consent unless inconsistent with federal policy or preempted by Congress); Pacific Coast Dairy, Inc. v. Department of Agric., 318 U.S. 285, 294 (1943) (same); Tribe, Constitutional Law, supra note 11, § 5-11, at 328-29 (discussing cases). These holdings only suggest again how far Professor Tribe's current approach is out-of-step with our tradition of constitutional interpretation. It is notable as well that Article III, Section 3, Clause 1 provides that treason against the United States "shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." U.S. Const. art. III, § 3, cl. 1 (emphasis added). Does this mean that when the Framers wished to make an exclusive list they used the word "only"? Professor Tribe's approach certainly makes constitutional interpretation simpler. Yet, it is hard to believe that even he would defend the results. See infra note 403 for further discussion of Professor Tribe's concerns about missing "only[s]."
179. See supra notes 117-23, 131-34, and accompanying text (discussing numerous examples of both exclusive and overlapping powers); infra notes 194-209, 398-403, and accompanying text (same).
180. There is an additional irony here. As we shall see, Professor Tribe goes to some lengths to defend the unilateral executive agreement even as he attacks the congressional-executive agreement. He claims that the President may make less important agreements on his own authority but that important agreements must receive senatorial advice and consent. See infra Part III.D.2. If a linguistic analysis of the Appointments Clause teaches us anything about the Treaty Clause, however, it is that we ought to be skeptical about the President's claimed unilateral agreement-making powers - and likewise about any effort to restrict Congress to approving only less important agreements. Recall that the Treaty Clause says nothing about the power to conclude undertakings other than through the Senate supermajority method, whereas the Appointments Clause carefully distinguishes between principal (read, "important") and inferior (read, "less important") officers and explicitly allows inferior officers to be appointed through alternative less burdensome procedures, viz., by the President alone. The absence of a comparable distinction in the Treaty Clause argues against finding that the President has the power to conclude agreements on his own authority, so long as they are, in effect, "inferior" rather than "principal" agreements, and it likewise argues against limiting Congress to approving such "inferior" agreements. Under Professor Tribe's approach, the proviso to the Appointments Clause strongly suggests that the Framers would have been express about authorizing the President to make inferior agreements on his own. Likewise, they would have been express had they wished either, depending upon one's view of congressional Article I power, to limit Congress to approving only inferior agreements or, conversely, to authorize it to approve only inferior agreements. Despite these textual implications, however, when the WTO Agreement was pending before Congress, Professor Tribe, even while relying upon the Appointments Clause, made precisely the argument that it seems to rule out - that the President and the Congress may make less important agreements but not important treaties. See GATT Hearings, supra note 41, at 301 (suggesting that only most important agreements need be submitted to Senate rather than Congress); Tribe Letter to Sen. Byrd of July 19,1994, supra note 41, at 2 (same); Tribe Memo of Oct. 5, 1994, supra note 41, at 8 (same). In response, Professor Ackerman and I pointed out the textual inconsistency. See Ackerman & Golove, supra note 5, at 923 n.517. Although Professor Tribe now derides our argument as "downright silly," Tribe, Taking Text, supra note 3, at 1274 n.182, he has in the meantime changed his view about congressional power to meet our point: Professor Tribe now concedes that Congress can either approve all agreements falling within its substantive powers or none; it is the middle ground that is untenable. He has simply chosen none where we chose interchangeability. With respect to unilateral presidential agreements, moreover, he charges us with silliness only because he persists in thinking that the Treaty Clause implicitly incorporates a distinction between "treaties" and "agreements," and that the clause applies only to the former. The President, he says, cannot make unimportant "treaties," only "agreements," although the latter are just unimportant treaties. As we will see, this premise is entirely untenable, see infra Part III.D.2, and is even contradicted by Professor Tribe himself, see infra note 366 and accompanying text. Professor Tribe's unwillingness to accept the obvious linguistic implications of the Appointments Clause from the point of view of his own interpretive methodology is, of course, a consequence of the imperative to uphold the unilateral executive agreement. That imperative teaches another lesson that he seems to miss: We ought to be skeptical about the strength of any inferences drawn on the basis of the kinds of purely linguistic considerations that he purports to find definitive. At this level of abstraction, the text simply refuses to cooperate. In my view, whether the President has unilateral powers to make some kinds of agreements cannot be intelligently resolved by a close parsing of the Appointments Clause. Nor - and this is the crucial point - can Congress's powers to approve international agreements.
181. See Tribe, Taking Text, supra note 3, at 1235-49.
182. As Justice Scalia put it: "[T]he basic separation-of-powers principles . . . are what give life and content to our jurisprudence concerning the President's power to appoint and remove officers." Morrison v. Olsen, 487 U.S. 654, 715 (1988) (Scalia, J., dissenting). It is not the case, of course, that Professor Tribe is unaware of these structural and architectural considerations. He has insightfully discussed them on numerous past occasions. See, e.g., Tribe, Constitutional Law, supra note 11, at 213-18, 244-54 (discussing separation of powers concerns underlying appointment and removal powers).
183. 272 U.S. 52 (1926).
184. See, e.g., 1 Annals of Cong. 496-97, 581-82 (Joseph Gales ed., 1789) [hereinafter Annals] (remarks of Rep. Madison) (indicating that appointments and removals are executive functions); 1 id. at 557 (remarks of Rep. Baldwin) (same); 1 id. at 561 (remarks of Rep. Sylvester) (same); see also Myers, 272 U.S. at 115-32 (reviewing removal debate in First Congress); id. at 136-57 (reviewing subsequent practice and judicial decisions).
185. See Myers, 272 U.S. at 115-29 (holding that removal is an executive function).
186. As Madison put it: Perhaps there was no argument urged with more success, or more plausibly grounded against the Constitution, under which we are now deliberating, than that founded on the mingling of the Executive and Legislative branches of the Government in one body. It has been objected, that the Senate have too much of the Executive power even, by having control over the President in the appointment to office. Now shall we extend this connexion between the Legislative and Executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the Executive? . . . . . . . [The legislature] ought to have nothing to do with designating the man to fill the office. That I conceive to be of an Executive nature. Although it be qualified in the Constitution, I would not extend or strain that qualification beyond the limits precisely fixed for it. We ought always to consider the Constitution with an eye to the principles upon which it was founded. 1 Annals, supra note 165, at 380, 582 (remarks of Rep. Madison); see also Myers, 272 U.S. at 120-21, 128-29 (endorsing Madison's argument); 1 Annals, supra note 165, at 557 (remarks of Rep. Baldwin) (concurring with Madison).
187. These separation of powers concerns have underwritten the Court's several decisions in this area, which develop the separation of powers theme at great length. See Weiss v. United States, 510 U.S. 163, 183-89 (1994) (Souter, J., concurring) (upholding procedure for appointing military judges); Freytag v. Commissioner, 501 U.S. 868, 882-92 (1991) (upholding procedure for appointing special Tax Court trial judges); id. at 901-08 (Scalia, J., concurring); Morrison, 487 U.S. at 685-96 (upholding independent counsel law); Bowsher v. Synar, 478 U.S. 714, 721-27 (1986) (striking down certain provisions of Gramm-Rudman-Hollings Act on ground that congressional control over removal of Comptroller General violated separation of powers); Buckley v. Valeo, 424 U.S. 1, 120-29 (1976) (per curiam) (striking down Federal Election Campaign Act procedure for appointing commissioners to Federal Election Commission); Myers, 272 U.S. at 116-32 (striking down provision that President could remove certain postmasters only upon senatorial consent); see also Tribe, Constitutional Law, supra note 11, §§ 4-9 to 4-10 (affirming centrality of separation of powers concerns in this area). Even in his article, Professor Tribe notices the separation of powers underpinnings to the Appointments Clause but only when he is not actually discussing his Appointments Clause argument. See Tribe, Taking Text, supra note 3, at 1238 (noting separation of powers concerns embodied in Appointments Clause in context of discussion of legislative veto as example of distortion of constitutional topology).
188. See Myers, 272 U.S. at 119-22, 163-64. Indeed, the Court was willing to abide congressional supervision only over removals of inferior officers whose appointments Congress, in accordance with the proviso, had vested outside the normal senatorial procedure. Here, the power to vest the appointment yielded the power to control removals as well. See id. at 160-61. Even within this narrow category, however, the Court doubted strongly whether Congress could exercise removal power over appointments it had vested in the President alone. Instead, Congress's power applied only to appointments the proviso permitted Congress to vest in the heads of departments, and, the Court insisted, the power applied only in cases where Congress had in fact vested the appointment in the head of a department. It was not enough that Congress could have vested the appointment but had chosen not to do so. See id. at 161-62, 164. Even in these cases, moreover, the Court implied what later cases confirmed - that Congress itself can play no direct role in removals. While in these cases it may vest the removal power elsewhere than in the President and restrict its exercise to specified causes, Congress may not itself participate in the removal process. See id. at 161; see also Morrison, 487 U.S. at 685-86 (noting that Congress has historically been denied the right to remove officers directly); Bowsher, 478 U.S. at 722-26 (declaring that "[a] direct congressional role in the removal of officers charged with the execution of the laws . . . is inconsistent with separation of powers").
189. Myers, 272 U.S. at 161; see also Morrison, 487 U.S. at 685-86 (affirming same); Bowsher, 478 U.S. at 722-26 (same); Buckley, 424 U.S. at 129, 134-36 (same).
190. Note that subsequent decisions have retreated somewhat from the Myers highwater mark of exclusive executive powers. In Humphrey's Executor v. United States, 295 U.S. 602 (1935), the Court disapproved Myers in this respect and recognized that Congress could restrict the grounds upon which the President can remove even certain principal officers, provided their functions are quasilegislative or quasijudicial, rather than purely executive, in character. See id. at 629-31. More recently, the Court has abandoned the effort to draw bright line distinctions and has permitted Congress to impose limits on removals so long as these do not interfere with the President's ability to accomplish his executive responsibilities. See Morrison, 487 U.S. at 690-91. Implicitly, then, the Court has recognized that Congress has a reserve of Article I authority over removals that permits it some supervisory role where the separation of powers does not compel otherwise. On the other hand, in deference to the core separation of powers issues at stake, the Court has continued to insist that Congress itself never play any direct role in removals. See id. at 685-86; Bowsher, 478 U.S. at 722-26. The Court's concerns are not limited to ensuring that the President has sufficient control over executive officers to carry out his executive duties effectively. In accordance with the Madisonian theory of separated powers, it has also worried about the dangers posed by congressional power over the execution of the laws. Much like the legislative veto struck down in I.N.S. v. Chadha, 462 U.S. 919 (1983), Congress's holding of the removal power, the Court has feared, would give it effective control over executive officers and thereby over the execution of the laws. See Bowsher, 478 U.S. at 726. Such control would enable Congress to usurp the executive function and would pose the dangers of unitary, parliamentary government the Framers so carefully sought to avoid. See Tribe, Constitutional Law, supra note 11, § 4-10, at 253-54; Tribe, Choices, supra note 39, at 74-76. No doubt, these concerns, combined with the textual points noted above, would continue to rule out any congressional role over appointments beyond that specified in the proviso.
191. See Springer v. Philippine Islands, 277 U.S. 189 (1928) (construing Phillipine Organic Act).
192. Section 21 of the Organic Act provided: "He shall, unless otherwise herein provided, appoint, by and with the consent of the Philippine Senate, such officers as may now be appointed by the Governor General, or such as he is authorized by this Act to appoint, or whom he may hereafter be authorized by law to appoint." Act of Aug. 29, 1916, ch. 416, § 21, 39 Stat. 545, 552 (emphasis added), made obsolete by Proclamation No. 2695, 3 C.F.R. 64 (Supp. 1946) (recognizing Philippine independence), reprinted in 22 U.S.C. § 1394 (1994). This provision contrasts with the language of Article II, Section 2 of the Constitution, which provides that the President shall appoint, by and with the advice and consent of the Senate, "all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." U.S. Const. art. II, § 2, cl. 2. Thus, under the U.S. Constitution, Congress's power is clearly limited to creating the office, at which point the President's appointment power automatically kicks in, whereas in the Organic Act, the legislature seemed to have the power both to create the office and to decide whether to vest the appointment in the Governor General. Note further that the Organic Act also vested the supreme executive power in the Governor General, granted him general supervision and control over all departments and bureaus of the Philippine government, charged him with faithfully executing the laws, and provided that all executive functions must be directly under the Governor General or within one of the executive departments under his supervision and control. See Springer, 277 U.S. at 200-01.
193. See Springer, 277 U.S. at 197-99.
194. 277 U.S. 189 (1928).
195. Id. at 202.
196. Id. The Court nevertheless went on to hold that the Organic Act, particularly the section requiring all executive functions to be under the Governor General or within one of the executive departments under his supervision and control, prohibited legislative appointments. In the process, the Court expressly rejected the application of expressio unius to the listing of the Governor General's appointment powers in Section 21 - despite the fact that its interpretation seemed to render that listing mere surplusage and thus presented a particularly compelling linguistic case for application of the canon. See id. at 206.
197. See Bowsher, 478 U.S. at 722-26 (striking down certain provisions of
198. See infra notes 244-58 and accompanying text.
199. This does not mean that the two clauses ought invariably to be interpreted in parallel but opposite fashion. Formal symmetries and oppositions rarely recommend themselves in constitutional interpretation. Consider the cognate issues of the removal of executive officers and the termination of treaties. Myers and its progeny, as we have seen, strictly limit congressional participation in removals of executive officers. See supra notes 169-71 and accompanying text. Somewhat similarly, although the issue is still unsettled, see Goldwater v. Carter, 444 U.S. 996, 996 (1979) (Powell, J., concurring) (dismissing on justiciability grounds challenge to a unilateral presidential treaty termination); id. at 1002 (Rehnquist, J., concurring) (same), the leading though still highly controversial modern view is that the power to terminate treaties belongs solely to the President. See Restatement, supra note 9, § 339 (affirming President's unilateral power); id. § 339 cmt. a & reporters' note 1 (elaborating on same); Henkin, supra note 9, at 211-14 (same); Louis Henkin, Litigating the President's Power to Terminate Treaties, 73 Am. J. Int'l L. 647, 651-54 (1979) (same); see also Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.) (en bane) (per curiam) (ruling in favor of President on narrow grounds in hodgepodge opinion rehearsing wide range of proExecutive arguments), vacated, 444 U.S. 996 (1979) (mem.). But see Goldwater, 444 U.S. at 1004 n.1 (Rehnquist, J., concurring) (noting various procedures, including congressional authorization or direction, that have been used to terminate treaties); Van der Weyde v. Ocean Transp. Co., 297 U.S. 114, 117-18 (1936) (upholding termination pursuant to congressional direction and appearing to approve practice). Presidents and their boosters, unsurprisingly, have from time to time been unable to resist the temptation to cite Myers in support of unilateral presidential authority. See, e.g., Points and Authorities in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, Goldwater v. Carter, 617 F.2d 697 (D.C. Cir. 1979) (No. 78-2412), reprinted in 2 United States Foreign Relations Law 532, 551-52 (Michael J. Glennon & Thomas M. Franck eds., 1980). However, the more authoritative commentators reach this conclusion concededly not on the basis of the text's original meaning but on "the nature of his office as it has become," Henkin, supra, at 652, and "as it has developed over almost two centuries," Restatement, supra note 9, § 339 reporters' note 1 (citing, inter alia, United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)). Indeed, the original understandings, which far better reflect the original meaning of the text, were quite to the contrary and strongly confirm the vast gulf between the appointments and treaty powers. The decision of 1789, as Myers referred to the famous debate in the First Congress, confirmed the view that appointments and removals are core executive functions in which Congress may not participate. See Myers v. United States, 272 U.S. 52, 163 (1926). In sharp contrast, Congress quickly claimed for itself the power to terminate treaties when, in 1798, it unilaterally abrogated our alliance with France formalized in the Treaties of 1778. See Act of July 7, 1798, ch. 67, 1 Stat. 578 (declaring "the United States are of right freed and exonerated from the stipulations of the treaties, and of the consular convention, heretofore concluded between the United States and France"). While that precedent has, strictly speaking, never been repeated, the predominant practice until at least President Wilson and perhaps until the New Deal was either for Congress, or less commonly for two-thirds of the Senate, to authorize or direct the President to terminate treaties. For historical accounts, compare Goldwater, 617 F.2d at 716, 723-32 (MacKinnon, J., dissenting in part, concurring in part) (concluding that "Congressional participation in termination has been the overwhelming historical practice"), vacated, 444 U.S. 996 (1979) (mem.), with David Gray Adler, The Constitution and the Termination of Treaties 149-90 (1986) (concluding there has been "no predominant method of termination, or even a discernible trend," and that there is "no support" for contention that unilateral executive termination has dominated since 1920s), and Memorandum from Herbert J. Hansel, Legal Adviser, Dep't of State, to Secretary of State (Dec. 15,1978) (concluding that while early precedent is mixed, practice since 1920 confirms President's unilateral power to terminate treaties), reprinted in 2 United States Foreign Relations Law, supra, at 377, 382-404.
200. Helvidius No. 1, supra note 69, at 149-50. Corwin appears to have shared Madison's view on this point. See Corwin, President's Control, supra note 119, at 29-30 (acknowledging force of Madison's argument on this point). Washington also distinguished between the nature of the appointments and treaty powers, stating in a communication to the Senate: "In the appointment to offices, the agency of the Senate is purely executive, and they may be summoned to the President. In treaties, the agency is perhaps as much of a legislative nature and the business may possibly be referred to their deliberations in their legislative chamber." George Washington, Sentiments Expressed to the Senate Committee at a Second Conference on the Mode of Communication Between the President and the Senate on Treaties and Nominations (Aug. 10, 1789), in 30 The Writings of George Washington 377, 378 (John C. Fitzpatrick ed., 1931).
201. Although interchangeability expands rather than contracts executive power, Congress might well provoke conflict were it to go a step further and attempt to restrict the President's authority to enter into agreements falling within his independent constitutional powers. Indeed, Congress and the Executive fought a heated war of words over this issue in the 1970s during the heroic period of congressional efforts to rein in executive unilateralism in foreign affairs. Congress claimed expansive authority for restrictive framework legislation under its Necessary and Proper Clause power to carry into execution the powers of the other departments of government. Compare H.R. 4438, 94th Cong. (1975) (requiring President to submit executive agreements to Congress for review and possible rejection), S. 3830, 93d Cong. (1974) (similar), and S. Rep. No. 93-1286, at 4, 7 (1974) (articulating congressional position), with Congressional Review of International Agreements: Hearings on H.R. 4438 Before the Subcomm. on International Security and Scientific Affairs of the House Comm. on International Relations, 94th Cong. 163-200 (1976) (testimony of Monroe Leigh, Legal Advisor, Dep't of State, and Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Dep't of Justice) (opposing congressional position). Ultimately, not with a bang but a whimper, Congress's resolve fizzled, and it failed to adopt proposed legislation which would have required congressional approval of all executive agreements, even those falling within the President's sole powers. The important point here is that the interchangeability doctrine in no way implies a resolution of this conflict in favor of one or the other of the contending branches. Interchangeability asserts only that Congress may authorize the President to enter into agreements, not that it may limit him in the exercise of his independent constitutional authority. On the other hand, whether Professor Tribe's view would undermine congressional efforts to limit presidential unilateralism in this way is unclear, though his emphatic insistence that Congress has no power to approve international agreements certainly seems to suggest a pro-Executive position.
202. See United States v. Munoz-Flores, 495 U.S. 385, 394-95 (1990) (discussing importance of bicameralism in protecting liberties of people from legislative overreaching and tyranny); I.N.S. v. Chadha, 462 U.S. 919, 948-50 (1983) (same); The Federalist No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961) (same); The Federalist No. 62, at 378-79 (probably James Madison) (Clinton Rossiter ed., 1961) (same); The Federalist No. 63, at 385-90 (probably James Madison) (Clinton Rossiter ed., 1961) (same).
203. See Chadha, 462 U.S. at 955-56 (noting that exceptional cases in which one house may act independently of other house are "narrow, explicit, and separately justified"); Henkin, supra note 180, at 652-53 (arguing that no unenumerated powers should be inferred for Senate acting alone); cf. The Head Money Cases, 112 U.S. 580, 598-99 (1884) (suggesting that if Supremacy Clause were absent from Constitution, lack of participation of House in treatymaking would militate in favor of according superior status to laws).
204. What is really at stake is not the prerogative of the Senate itself, since a majority of the Senate must still approve any congressional-executive agreement.
205. Of course, bicameralism is itself a modification of a purely majoritarian system. In any case, there are four other instances in which the Constitution requires supermajority votes, all of which involve the absence of one or more of the three usual lawmaking institutions. See supra notes 69-73 and accompanying text. In addition, in each case there are specialized considerations that seem to underlie the Framers' adoption of an extraordinary voting requirement. The first is the adoption and amendment of the Constitution itself. See U.S. Const. art. VII (requiring ratification by nine states); id. art. V (requiring, alternatively, congressional amendment proposals to be adopted by two-thirds of both houses and approved by three-quarters of states or calling of a convention by Congress upon application of twothirds of state legislatures and approval of proposed amendments by three-quarters of states, and prohibiting any amendment depriving a state of its equal suffrage in Senate without its consent). Without entering into the amendments debate, it seems evident that the Framers held the view, widely shared even today, that there is something unique in the nature of a constitution such that its adoption and/or amendment should be supported by a strong majority of the population. The second case is the power to try impeachments, which, in the absence of the House and President, requires a two-thirds vote in the Senate for conviction. See id. art. I, § 3, cl. 6. Since impeachment is in the nature of a criminal charge, it seems unremarkable that the Framers required a qualified majority of the triers of fact to be persuaded. Additionally, there is the need to prevent those holding a majority of seats from abusing the minority through political uses of the impeachment power. Third, each House may expel a member only upon a two-thirds vote. See id. art. I, § 5, cl. 2. Here, again, there is not only the criminal analogy but the need to prevent obvious abuses of majoritarian democracy. Cf. Powell v. McCormack, 395 U.S. 486, 547-48 (1969) (considering two-thirds requirement for expulsion). Finally, the fourth case is the veto override provision, which allows two-thirds of both houses of Congress to pass a law over the objections of the President. See U.S. Const. art. I, § 7, cls. 2, 3. In part, the President's veto power enables him to guard his own institutional position against an overreaching legislature and to protect the minority against majoritarian excesses. In this context, the President's role is comparable to that of the Supreme Court in exercising the power of judicial review, except that the Framers allowed the President to be overruled by two-thirds of both houses (whereas the Court must be overruled not only by two-thirds of both houses, but three-quarters of the states as well). In part, when the President vetoes a bill, he throws in doubt not only the constitutionality and/or the wisdom of the measure, but the assumption that Congress has faithfully executed the will of the majority. As the Court in Myers put it: The President is a representative of the people just as the members of the Senate and of the House are, and it may be, at some times, on some subjects, that the President elected by all the people is rather more representative of them all than are the members of either body of the Legislature whose constituencies are local and not countrywide . . . . Myers v. United States, 272 U.S. 52, 123 (1926). Hence, requiring two-thirds of both houses for an override helps to ensure that the law passed actually represents the majority's considered views. See Chadha, 462 U.S. at 948.
206. See 2 Records of the Federal Convention of 1787, at 540 (Max Farrand ed., 1911) [hereinafter Records of the Convention] (remarks of James Wilson) (objecting to twothirds rule because it "puts it in the power of a minority to controul the will of a majority"); The Federalist No. 75, at 453 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (noting that "all provisions which require more than the majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority").
207. My larger point, of course, is that they cannot be resolved on the basis of text alone. Take the House/Senate conflict, for example. From a purely textual perspective, the question is whether the apparent (though necessarily speculative) institutional reasons for excluding the House - the large number of representatives and their short terms of office, see supra text accompanying notes 68-69 - require their exclusion in all cases, or whether it is sufficient to allow the President the option of avoiding the House in those instances when he believes that these institutional characteristics might prejudice his foreign policy initiatives, say, because of the need for secrecy and dispatch. See supra notes 68-74 and accompanying text. The text alone does not aid in resolving the ambiguity, although, as I argue above, there are persuasive grounds for narrowly construing exceptions to the usual bicameral legislative procedure. Similarly, consider the President/Senate minority conflict. From a textual perspective, the question is whether the Framers empowered the Senate minority in order to provide a sectional veto over treaties or as an added protection in those cases where the President concludes that the House cannot safely participate. Again, the constitutional text does not resolve the issue, but, as the text above suggests, there are persuasive grounds here as well for strictly construing the scope of extraordinary supermajority voting requirements, such as the two-thirds rule.
208. Another closely-related structural difference that undermines the effort to import the exclusivity of the Appointments Clause to the Treaty Clause is the contrast between the simple majority rule for appointments and the supermajority requirement for treaties. In both cases, the reasons for the choice of the Senate, at least insofar as one can infer from the text alone, appear similar. The Senate, among other things, would ensure a more equitable geographical distribution of appointments, see Myers, 272 U.S. at 119-20, and likewise would ensure that the interests of all states be considered equally in undertaking international commitments. However, the Framers' reasons for excluding the House appear quite different in the two contexts. In the case of appointments, at least one persuasive textual inference is that they wished to avoid placing any further obstacles in the President's path. Having already introduced the legislature into a core executive function, the Framers sought to avoid compounding the problem by requiring the President to run the gauntlet not just of the Senate but of the differently configured House as well. This, in turn, provides a strong structural argument for reading the Appointments Clause to prohibit any congressional involvement beyond that expressly granted to the Senate. In contrast, the two-thirds supermajority requirement for treaties suggests a different basis for the House's exclusion. Given the extraordinary burden placed upon the President in seeking the Senate's consent (as well as the Framers' view that approving agreements is a legislative function, see infra notes 246-58 and accompanying text), there is little basis for inferring that they excluded the House to avoid placing an additional obstacle on the President. Limiting the burden on the President in the one case was apparently not the point in the second, and the reasons that underwrite a narrow, exclusive reading of the Appointments Clause simply do not apply to the Treaty Clause. See infra note 247 and accompanying text. For this reason as well, the interpretation of the Appointments Clause does not shed any light on the proper interpretation of the Treaty Clause.
209. That clause requires senators to be 30 years of age. See U.S. Const. art. I, § 3, cl. 3. To make the hypothetical work, Professor Tribe asks us to assume that the text uses numerals rather than spelling out, as it does, the words "nine" and "thirty." See Tribe, Taking Text, supra note 3, at 1274.
210. Id. at 1274 (citing U.S. Const. art. I, § 3, cl. 3).
211. In a footnote, Professor Tribe concedes that the Appointments Clause argument does not provide "a fail-safe proof of the exclusivity of the Treaty Clause procedure." Id. at 1274 n.181. Perhaps, then, his hypothetical is designed just to demonstrate the importance for constitutional interpretation of reading whole sentences rather than just fragments. After all, the latter part of a sentence might reflect on the proper interpretation of the first part. This point, however, is so obviously uncontroversial it seems unlikely he would have belabored it with an elaborate hypothetical illustration. On the other hand, he does charge Professor Ackerman and me with deriding his suggestion that the Appointments Clause "should be considered in deciding the issue of the Treaty Clause's exclusivity," id. at 1273-74, and uses this as an occasion to provide a lecture on the importance of reading sentences as a whole. Needless to say, Professor Ackerman and I have not criticized him for "considering" the Appointments Clause. Every provision in the Constitution that might shed light on the interpretation of the Treaty Clause, including the Appointments Clause, ought obviously to be consulted, and spreading the net as widely as possible is laudable. The Appointments Clause in particular is a good candidate for inclusion because of the linguistic and formal structural similarities to the Treaty Clause. We simply argued that having consulted and analyzed the Appointments Clause, it has no real bearing on interpreting the Treaty Clause. Everything should be consulted, but arguments should be based only on clauses that turn out, on examination, to be relevant. Indeed, a slight variation on Professor Tribe's base eight story illustrates our point: Suppose that Senators need be citizens only seven, not nine years. Then reading the sentence as a whole, in Professor Tribe's sense, would be unhelpful. The latter portion would not give us any further evidence as to whether base eight, nine, or ten were intended, and it would not be worth pointing to as an argument for the base ten view. That is exactly the status of the Appointments Clause in our view.
212. Alternatively, returning to Professor Tribe's textual argument, are we to conclude that these powers are all exclusive because none of them contains any language of nonexclusivity, as does the proviso? See supra notes 157-61 and accompanying text.
213. See U.S. Const. art. II, § 2, cl. 1.
214. Id.
215. See id.
216. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) ("[The war] power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief."); see also Berdahl, supra note 118, at 116-30 (describing President's wide-ranging and exclusive power to conduct wartime military operations); Corwin, The President, supra note 119, at 262-63, 293-94 (same); cf. Fleming v. Page, 50 U.S. (9 How.) 603, 615-16 (1850) (holding that custom house in conquered territory was validly established under President's authority as Commander-in-Chief where duties imposed were part of military strategy to burden commerce with enemy); Tribe, Constitutional Law, supra note 11, § 4-4, at 220 & n.6 (acknowledging President's exclusive authority over military policy decisions, though locating source of authority in President's "inherent" power over foreign policy rather than Commander-in-Chief Clause). Henkin is less certain but says "[i]t would be unthinkable for Congress to attempt detailed, tactical decision, or supervision, and as to these the President's authority is effectively supreme." Henkin, supra note 9, at 103-04.
217. See Corwin, The President, supra note 119, at 263-93 (describing historical expansion of President's commander-in-chief power); Henkin, supra note 9, at 45-50, 97-112 (same).
218. Acting under its Article I, Section 8 powers, Congress may vest the pardon power in executive officers other than the President, see The Laura, 114 U.S. 411, 414-16 (1885) (upholding power of Congress to vest in Secretary of Treasury power to remit fines, penalties, and forfeitures for violations of laws of United States against claim that pardon power is exclusively President's), or it may grant amnesty for any offense against the United States. "Although the Constitution vests in the President 'power to grant reprieves and pardons for offences against the United States, except in cases of impeachment,' this power has never been held to take from Congress the power to pass acts of general amnesty . . . ." Brown v. Walker, 161 U.S. 591, 601 (1896) (quoting U.S. Const. art. II, § 2, cl. 1).
219. See United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1871) (striking down congressional attempt to limit scope of pardon power); Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866) (holding that "Congress can neither limit the effect of [the President's] pardon, nor exclude from its exercise any class of offenders").
220. Brown v. Walker, 161 U.S. at 601. The difference, the Court said, was "One rather of philological interest than of legal importance.' 'Amnesty' is defined by the lexicographers to be an act of the sovereign power granting oblivion, or a general pardon for a past offence, and is rarely, if ever, exercised in favor of single individuals . . . ." Id. at 601-02 (quoting Knote v. United States, 95 U.S. 149, 152-53 (1877)); see also Burdick v. United States, 236 U.S. 79, 94-95 (1915) (describing further incidental differences between amnesties and pardons); Nix v. James, 7 F.2d 590, 593-94 (9th Cir. 1925) (holding that Probation Act does not encroach on President's pardon power). Despite the holdings of Brown v. Walker and The Laura, however, one might still doubt whether there really are no limits on Congress's powers to grant amnesty in individual cases or to vest a pardon power concurrently in other executive officers.
221. See Act of Sept. 2, 1789, ch. 12, 1 Stat. 65, 66 (establishing Treasury Department and requiring Secretary of Treasury "to make report, and give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office"). For a very pro-Executive recounting of the early history, see Subcommittee on Constitutional Rights of the Senate Comm. on the Judiciary, 85th Cong., The Power of the President to Withhold Information from the Congress - Memorandums of the Attorney General pt. 1, at 2-42, 74-82 (Comm. Print 1958 & 1959) [hereinafter Attorney General's Memorandums]. But cf. H.R. Rep. No. 86-2207 (1960) (describing historical conflicts over executive privilege). Although Congress's investigatory power, like its power to approve international agreements, is not mentioned in the text, it has long been recognized as an implied power incident to the power to legislate and includes the power to compel testimony through subpoena. See, e.g., McGrain v. Daugherty, 273 U.S. 135, 160-75 (1927) (upholding powers of House and Senate to compel testimony of witnesses when needed to enable them to perform their legislative functions); see also James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153 (1926) (recounting early history of congressional exercises of its investigatory powers). The issues take on some added separation of powers complications when Congress wishes to compel the testimony of heads of the executive departments or to require them to make reports. See Tribe, Constitutional Law, supra note 11, § 4-16 (describing interplay between congressional investigatory power and executive privilege to withhold information). The Supreme Court has suggested that the power to require reports is incident to the legislative function. See Morrison v. Olsen, 487 U.S. 654, 694 (1988) (indicating that receiving reports from executive officers is "incidental to the legislative function"). The real issue is the existence and scope of executive privilege and its impact on Congress's implied investigatory power. Thus far, the Supreme Court has managed largely to stay out of the fray, although in United States v. Nixon, 418 U.S. 683 (1974), it did recognize the constitutional status of executive privilege but ruled that the courts could overrule the President's judgment at least in the context of a criminal prosecution. The Court left open whether executive privilege could be invoked in a legislative setting. See id. at 712 n.19. In any case, Congress has always required principal officers of the executive departments to provide written reports on subjects of congressional interest. Although there was some early confusion, see Thomas Jefferson, Diary Entries (Mar. 12 & Apr. 2, 1792), in 4 Memoir, Correspondence, and Miscellanies, from the Papers of Thomas Jefferson 463-65 (Thomas Jefferson Randolph ed., Charlottesville, F. Carr & Co. 1829) (revealing early misgivings of first cabinet); William Rawle, A View of the Constitution of the United States 171-72 (Philadelphia, Philip H. Nicklin 2d ed. 1829) (describing practice); 3 Joseph Story, Commentaries on the Constitution of the United States 371 n.1 (Boston, Hillard, Gray & Co. 1833) (describing early confusion but noting that practice is accepted), the practice is settled and has become even more widespread today than in the past. Indeed, it is impossible to glance through a volume of the United States Code without noticing some of the scores, even hundreds of statutes ordering executive branch officials to submit regular reports to Congress on every conceivable subject. For an example close to home, consider the elaborate report Congress requires the United States Trade Representative to submit annually on the subject of the World Trade Organization. See 19 U.S.C. §§ 3534, 3535 (1994). Perhaps the most widely known instance is the State Department's annual Country Reports on Human Rights Practices. See, e.g., U.S. Dep't of State, Country Reports on Human Rights Practices for 1995 (Comm. Print 1996). The State Department submits these elaborate reports in accordance with a number of different statutory mandates. See, e.g., 22 U.S.C. § 2304(b) (1994 & Supp. 1996) (prescribing content of reports); see also U.S. Dep't of State, supra, at ix (noting statutory compliance). There are countless other examples. By statute, Congress has charged the standing committees of both houses with evaluating the execution of the laws by the executive branch and authorized them to "require a Government agency to [carry out the necessary analysis, appraisal, and evaluation themselves] and furnish a report thereon to the Congress." 2 U.S.C. § 190d(a) (1994).
222. See the comprehensive listing of precedents in Attorney General's Memorandums, supra note 202, pt. 1, at 30-32; id. pt. 2, at 120-21; see also Corwin, The President, supra note 119, at 125-33, 212-13, 473-76 (discussing precedents); Henkin, supra note 9, at 115-16 (same).
223. In fact, most of the controversy has been over presidential refusals to produce records, rather than refusals to make reports. It has not been unusual for one or the other house of Congress to decide that to assess the accuracy of executive branch reporting, it is necessary to have access to the underlying records and not just to formal reports and opinions. See Attorney General's Memorandums, supra note 202, pt. 1, at 4-30 (citing instances); id. pt. 2, at 91-121 (same); Corwin, The President, supra note 119, at 126-31 (same).
224. At least so far as my admittedly less than complete historical research reveals. See, e.g., Attorney General's Memorandums, supra note 202, pt. 1, at 1-4, 69-72 (resting on separation of powers grounds rather than President's power to require opinions); 40 Op. Att'y Gen. 45 (1941) (resting on separation of powers and protection of public interest); Roman L. Hruska, Executive Records in Congressional Investigations - Duty to Disclose - Duty to Withhold, 35 Neb. L. Rev. 310 (1955) (resting on executive prerogative and need to protect public interest). Professor Tribe never mentions this power in his discussion of executive privilege. See Tribe, Constitutional Law, supra note 11, §§ 4-15 to 4-16.
225. It is hardly plausible, for example, to suggest that we can substantially advance our thinking about conflicts between the political branches over the war powers by examining the pardon power. Nor does the status of the power to require written opinions seem to have any bearing on whether Congress may limit the President from the use in war, say, of certain kinds of weapons, or on whether a congressional amnesty for a named individual ought to be upheld.
226. Compare Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (construing commander-in-chief power), Corwin, The President, supra note 119, at 262-63, 293-94 (same), and Henkin, supra note 9, at 45-50, 97-112 (same), with Brown v. Walker, 161 U.S. 591, 601-02 (1896) (construing pardon power).
227. See Tribe, Constitutional Law, supra note 11, § 4-7 (construing Commander-in-Chief Clause); id. § 4-11 (construing pardon power); id. §§ 4-15 to 4-16 (construing scope of executive privilege).
228. Nor would matters improve were we to apply Professor Tribe's methodology outside Article II, say, to Article I. The latter introduces a new worry - we have to determine not only whether the powers granted are exclusive of the executive but also whether they are exclusive of the legislative powers of the states. See supra note 115 (discussing exclusivity vis-a-vis states); infra notes 278-79 and accompanying text (same). To compound matters, all of the grants contained in Section 8 are contained within a single sentence! In the Constitution a 1a Tribe, this would appear to mean that all should be given the same construction in these two respects. Thus, for example, as to exclusivity vis-a-vis the states, compare Congress's power to borrow money on the credit of the United States, see U.S. Const. art. I, § 8, cl. 2, to establish post offices and post roads, see id. art. I, § 8, cl. 7, and to constitute tribunals inferior to the Supreme Court, see id. art. I, § 8, cl. 9, with its power to lay and collect taxes, duties, imposts, and excises, see id. art. I, § 8, cl. 1, to regulate commerce with foreign nations and among the several states, see id. art. I, § 8, cl. 3, and to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries, see id. art. I, § 8, cl. 8. While the former seem clearly exclusive, the latter, however different in detail, are nonexclusive to a significant extent (although congressional supremacy, in the event of conflict, is clear at least as to the latter two). See Goldstein v. California, 412 U.S. 546, 552-60 (1973) (holding that copyright power is concurrent but that federal legislation controls in event of conflict); Tribe, Constitutional Law, supra note 11, §§ 6-2 to 6-5 (describing Court's negative Commerce Clause jurisprudence); see also The Federalist No. 32, supra note 94, at 199 (arguing for nonexclusivity of taxation power as well as its nonhierarchical character). Similarly, the grants in Article I cannot be read as uniformly exclusive of executive power. In this context, compare Congress's power to lay and collect taxes, see U.S. Const. art. I, § 8, cl. 1, and to borrow money on the credit of the United States, see id. art. I, § 8, cl. 2, and to provide for the punishment of counterfeiting the securities and current coin of the United States, see id. art. I, § 8, cl. 6, with its power to make rules for the government and regulation of the land and naval forces, see id. art. I, § 8, cl. 14, and to provide for organizing, arming, and disciplining the militia, see id. art. I, § 8, cl. 16, and to regulate commerce with foreign nations, see id. art. I, § 8, cl. 3. Again, the former are clearly exclusive, while the latter present more complexities. As to presidential intrusions on Congress's power to make rules for the regulation of the land and naval forces, see supra note 120. As to invasions of the power to regulate foreign commerce, see supra note 120. As to presidential overlaps with a variety of congressional powers through the conclusion of treaties and unilateral executive agreements, see supra note 120 and accompanying text. If we were more generous to Professor Tribe, we might assume that he would limit his presumption only to powers listed in a single clause - the same sentence rule being a necessary, but not a sufficient condition, to the operation of his presumption. But this too is of little help, as careful consideration of the relevant provisions reveals. The Framers were far more careful in Article I, Section 8 than in Article II to group together into single clauses powers that are similar in their nature and purposes. They were also more reluctant to group powers at all. Nevertheless, the single clause rule quickly runs into difficulties in this Article as well. Take the power to establish a uniform rule of naturalization and uniform laws on the subject of bankruptcies. See U.S. Const. art. I, § 8, cl. 4. The requirement of national uniformity in both cases might well have led the Court to conclude that both powers are exclusive of the states. In fact, however, the Court early held that the bankruptcy power was concurrent and that state laws on the subject would not be preempted unless Congress occupied the field (which, in fact, it did not for many decades). See Stellwagen v. Clum, 245 U.S. 605, 615 (1918); Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 196 (1819). The naturalization power proved more difficult to interpret. An early case seemed to suggest that the naturalization power was also nonexclusive, leaving the states free in the absence of contrary federal legislation to naturalize citizens. See Collet v. Collet, 6 F. Cas. 105, 106-07 (C.C.D. Pa. 1792) (per curiam). But later cases, understandably, criticized this view.
229. Tribe, Taking Text, supra note 3, at 1269.
230. Id. at 1270. In Professor Tribe's view, of course, approving agreements is not a "normal lawmaking" function. For an extended reply to this assumption, implicit in the cited passage, but made explicit elsewhere, see infra notes 244-62 and accompanying text.
231. Professor Tribe cites Article I, Section 9, Clause 8 (prohibiting any person holding any office under United States from accepting any present, emolument, office, or title from foreign state without consent of Congress); Article I, Section 10, Clause 2 (prohibiting states from taxing imports or exports without consent of Congress); Article I, Section 10, Clause 3 (prohibiting states, without consent of Congress, from laying any duty of tonnage, keeping troops or ships of war in time of peace, entering into any agreement or compact with another state or with foreign power, or engaging in war unless actually invaded or in imminent danger); Article IV, Section 1 (granting Congress power to regulate public records); Article IV, Section 3, Clause 1 (granting power to admit new states or consent to formation of new states from other states or parts thereof); Article IV, Section 3, Clause 2 (granting power to make all needful rules and regulations respecting territory or property of United States); and Article V (granting Congress power to propose constitutional amendments by two-thirds vote in each house). See Tribe, Taking Text, supra note 3, at 1270 & n.170.
232. Consider, for example, Article I, Section 8, Clause 5 (granting Congress power to coin money), Clause 11 (granting power to declare war and to grant letters of marque and reprisal), and Clause 12 (granting power to raise and support armies). 214 The stronger expressio unius argument rests on the grant of the treaty power to the President and the Senate, not on the nature of the expressly enumerated powers granted to Congress. McCulloch's expansive reading of the Necessary and Proper Clause undermines the force of the latter. See supra notes 49-56 and accompanying text; infra notes 228-31, 235-38, and accompanying text. Of course, I consider the former weak as well. See supra notes 93-100,116-23, and accompanying text.
233. See, e.g., U.S. Const. art. IV, § 1 (granting power to regulate public records); id. art. IV, § 3, cl. 2 (granting power to make all needful rules and regulations for territory and property of United States).
234. See supra note 212.
235. See Tribe, Taking Text, supra note 3, at 1270.
236. Article I, Section 10, Clause 1 prohibits the states from entering into any treaty, alliance, or confederation; granting letters of marque and reprisal; coining money; emitting bills of credit; making any thing but gold and silver coin a legal tender; passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or granting any title of nobility. Professor Tribe has recognized these as absolute prohibitions. See Tribe, Constitutional Law, supra note 11, § 6-33, at 521, 527 n.42; see also infra note 362 (discussing implications and rationale for structure of Section 10). For the provisions of Clauses 2 and 3, see supra note 212.
237. See supra note 218; infra note 362. Perhaps, the Court would have determined on a case-by-case basis whether a particular power included in Article I, Section 10 required absolute prohibition in light of its peculiar nature or whether the prohibition could be overcome by congressional consent. This, too, however, would not necessarily have achieved what the Framers had in mind - the particular division they made among the powers included in Clauses 1, 2, and 3.
238. Indeed, as Professor Tribe has previously recognized, the Framers were not in fact express on other occasions when they did wish Congress to have a power of consent. Consider, for example, Congress's power to "consent" to state regulations of interstate commerce that would otherwise be beyond state authority because they unduly discriminate against out-of-state commerce. See Tribe, Constitutional Law, supra note 11, § 6-33, at 524-27 (discussing source and scope of power). More generally, although he has recognized that Congress may not override the absolute prohibitions on state regulation contained in the first clause of Article I, Section 10, Professor Tribe has affirmed that there are implied congressional consent powers over state action in two broad areas which go beyond the express consent powers specified in the second and third clauses of Section 10: [C]ongressional consent or ratification may suffice to validate otherwise unconstitutional state action in three different settings: first, where the Constitution expressly makes congressional consent a prerequisite of state action, as in the provisions of article I, § 10, with respect to import and export duties, interstate compacts, and certain other topics; second, where the existence of a constitutional ban on state action is inferred entirely from a grant of legislative power to Congress, as in the case of the commerce clause; and third, where the constitutional prohibition against state intrusion is thought to follow from concerns of federalism that may properly be entrusted to Congress, as in the case of federal immunity from state taxation. Id. § 6-33, at 521. His current argument, then, appears to be wholly inconsistent with his previous views. Furthermore, the analysis in the text above applies as well to the provision prohibiting any person holding office under the United States from accepting any present, office, or title from a foreign state without the consent of Congress. See U.S. Const. art. I, § 9, cl. 8. That provision likewise appears among a list of powers, in this case denied to the federal government, including those holding office under it. It would have been impossible to determine which activities were absolutely prohibited and which prohibited except with congressional consent had the Framers failed to include explicit language in those instances where they intended the latter. Professor Tribe's reliance on Article V is likewise misplaced. The need to make Congress's power to propose amendments explicit arose from at least two considerations. It was at least doubtful whether a power to amend the constituent text could be inferred from Congress's implied legislative powers. The Framers, moreover, wished to limit Congress's role to proposing amendments rather than adopting them and to require a two-thirds vote in both houses rather than the usual simple majority with the concurrence of the President.
239. Tribe, Taking Text, supra note 3, at 1271.
240. Id.
241. Id. at 1270.
242. Id.
243. For further discussion, see infra Part III.D.2.
244. As soon as we begin finding explanations for their silence in the one case, moreover, we then have to consider what reasons they may have had for silence in the other. In other words, once we postulate reasons for not drawing the expressio unius inference as to the President's unilateral agreement-making powers, we can at least as persuasively posit reasons for not drawing the inference in Congress's case as well.
245. See infra Part III.D.2.
246. 17 U.S. (4 Wheat.) 316 (1819) (Marshall, C.J.).
247. Id. at 421.
248. Jefferson had argued that Congress's implied powers under the Necessary and Proper Clause are limited to those "without which the [express] grant[s] of power would be nugatory," Thomas Jefferson, Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), in 19 The Papers of Thomas Jefferson 275, 278 (Julian P. Boyd ed., 1974), and Madison had taken the view that they are limited to those "evidently and necessarily involved in an express power" and which are not inherently important powers in themselves, 2 Annals of Cong. 1899-1901 (1791) [hereinafter 2 Annals] (remarks of Rep. Madison). For further discussion of Madison's view, see infra note 268. For further commentary on the epochal dispute over the first Bank of the United States, see Paul Brest & Sanford Levinson, Processes of Constitutional Decisionmaking 9-17 (3d ed. 1992).
249. Professor Tribe does not purport to revisit McCulloch. Perhaps as a strict textualist he should. Some have argued, not unpersuasively, that Marshall was de facto amending the Constitution of 1787. See Sanford Levinson, How Many Times Has the United States Constitution Been Amended? (A) < 26; (B) 26; (C) 27; (D) > 27: Accounting for Constitutional Change (citing James Boyd White, When Words Lose Their Meaning 263 (1984)), in Responding to Imperfection, supra note 17, at 13, 22-23.
250. See Tribe, Taking Text, supra note 3, at 1258-61.
251. 462 U.S. 919 (1983) (striking down legislative veto on structural grounds even though a useful device for implementing Congress's legislative powers).
252. 504 U.S. 144 (1992) (striking down on federalism grounds statute directing states to regulate interstate commerce in radioactive waste in accordance with congressional instructions). The even more recent decision in Printz v. United States, 117 S. Ct. 2365 (1997) (striking down on federalism grounds provisions of Brady Handgun Violence Prevention Act that required state police to conduct background checks of handgun purchasers), is to the same effect.
253. U.S. Const. art. I, § 8, cl. 18.
254. See Tribe, Taking Text, supra note 3, at 1261-64.
255. Chief Justice Marshall uses the term "means" throughout the opinion. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 passim (1819) (Marshall, C.J.). He also treats the implied powers doctrine as independent of the Necessary and Proper Clause. See id. at 406-11 (finding implied congressional power to create corporations and only subsequently discussing Necessary and Proper Clause in response to argument by counsel); Tribe, Constitutional Law, supra note 11, § 5-3, at 301 n.5 (stating that "Marshall like Madison, did not regard the necessary and proper clause as the source of the implied congressional power recognized in McCulloch"). For Madison's concurring view see The Federalist No. 44, at 285 (James Madison) (Clinton Rossiter ed., 1961)
256. See, e.g., McGrain v. Daugherty, 273 U.S. 135, 174-75 (1927) (upholding investigatory powers of each house, including their power to compel testimony by subpoena); The Pacific Railroad Removal Cases, 115 U.S. 1, 14-15 (1885) (upholding Congress's power to charter railroad corporations); The Legal Tender Cases, 79 U.S. (12 Wall.) 457, 544, 553 (1870) (upholding Congress's power under Necessary and Proper Clause to make treasury notes legal tender in payment of all debts and obligations).
257. For further discussion of the various forms congressional-executive agreements take, see Ackerman & Golove, supra note 5, at 804-05.
258. See, e.g., 10 U.S.C.A. §§ 2302-2331 (West 1998) (providing ex ante authorization for military procurement contracts under strict congressional guidelines); 41 U.S.C. §§ 5-58 (1994) (similar).
259. Professor Tribe creates confusion by his conflation of two separate issues. The first is whether the term "laws" in the Necessary and Proper Clause includes a resolution approving an international agreement. The second is whether, notwithstanding an affirmative answer to the first question, Congress is prohibited from approving international agreements under that clause because of an "invisible radiation," Missouri v. Holland, 252 U.S. 416, 434 (1920), from the Treaty Clause. At this juncture in his argument, Professor Tribe is challenging only the first, claiming that the linguistic terms of the Necessary and Proper Clause are not broad enough to encompass approving agreements. The accepted practice of Congress approving federal contracts and agreements with Indian tribes, however, conclusively resolves the point against his view. See supra note 240 and accompanying text; infra note 243 and accompanying text. Nevertheless, it is true that those same practices have no direct bearing on the second question, which, as I have repeatedly made clear, depends on other considerations. Thus, Professor Tribe's repeated emphasis on Congress's plenary power over Indian affairs is entirely beside the point. Congress likewise has plenary power over foreign affairs, but this fact is irrelevant to the question whether the term "laws" includes resolutions approving agreements. So too is the fact that international agreements are between sovereigns, whereas Indian agreements are between a sovereign (the United States) and its subjects (the Indian tribes). However, the latter distinction is relevant to the second question, whether congressional approval of Indian treaties demonstrates the nonexclusivity of the Treaty Clause. Ironically, Professor Tribe chides Professor Ackerman and me for having failed in our article to address the longstanding practice, going back to the 1870s, of congressional approval of Indian agreements. In 1871, Congress passed a statute declaring that Indian tribes are not independent nations with whom the United States may contract by treaty. See Act of Mar. 3, 1871, ch. 120, 16 Stat. 544, 566 (codified as amended at 25 U.S.C. § 71 (1994)). This statute put an end to the practice of treatymaking with the Indians, and in its place, Congress began to approve agreements negotiated by executive branch officials, much as it approves congressional-executive agreements. Professor Tribe hypothesizes that we did not address this practice because "it does not enhance [our] depiction of 1945 as a radical break with the past." Tribe, Taking Text, supra note 3, at 1262 n.138. This ad hominem is doubly ironic, first, because Professor Tribe himself, who accepts our view of the early history, see supra note 39, immediately proceeds to explain why this practice is entirely consistent with an exclusive reading of the Treaty Clause, and second, because our treatment of the subject ended up on the cutting room floor as a matter too obvious to require further elaboration. Alas. In any case, the explanation is quite simple, although the history is complex and fascinating. As relations between the United States and the Indians developed, the early sui generis perception of the character of Indian sovereignty and of the relationship between the United States and the Indians came under increasing stress. The predominant view slowly shifted, culminating in a new conceptualization of the Indians as subjects and wards of the nation. At the same time, the House came increasingly to resent the regulation of Indian affairs through treaties, a process from which it was excluded, and began to protest against the application of a procedure designed principally for undertaking international obligations to domestic groups having, in their view, no international status. After a drawn out and bitter legislative struggle, the Senate capitulated and agreed to the 1871 statute. See generally Antoine v. Washington, 420 U.S. 194, 201-03 (1975) (discussing conflict between House and Senate that resulted in 1871 statute). For excellent surveys of the history, see Felix S. Cohen's Handbook of Federal Indian Law 62-70, 105-07 (Rennard Strickland ed., 1982);
260. Francis Paul Prucha, American Indian Treaties 289-310 (1994). Thus, far from supporting the nonexclusivity of the treaty procedure, congressional approval of Indian agreements simply marks the sharp historical differentiation between "genuine" international agreements and all other forms of legislation. Indeed, the point of the 1871 statute was not to make the senatorial and congressional procedures interchangeable (i.e. nonexclusive), but to exclude the use of the senatorial procedure altogether, as inapplicable to Indian tribes. The statute thus raises an entirely different issue. No one in 1871 imagined that the statute would have any bearing on the exclusivity of the treaty procedure within the "proper" field of its application to binding international commitments under the law of nations. Surprisingly, Professor Tribe intimates that in his view the 1871 statute might be unconstitutional because Congress cannot strip the President and the Senate of a constitutional authority. See Tribe, Taking Text, supra note 3, at 1264 n.144. True, but if so, it would only be because the Framers in effect constitutionalized the status of Indian tribes in a way that makes application of the Treaty Clause to Indian agreements appropriate and renders impermissible a change in the conceptualization of the Indians to purely domestic subjects and wards of the state. Perhaps this is the better - though long unappreciated - view. But even if correct, this view says nothing about the constitutionality of the congressional-executive agreement.
261. 420 U.S. 194 (1975).
262. Id. at 201 (quoting U.S. Const. art. VI, cl. 2). Professor Tribe chides Professor Ackerman and me for treating the distinction between making laws and approving agreements "dismissively." Tribe, Taking Text, supra note 3, at 1261. However, in the pages of our article to which he cites, we simply made the point that his position at that time undermined the very distinction he was trying to draw. He was then claiming that Congress could approve most international agreements but that some very important agreements had to be processed exclusively as treaties. In response, we noted that this position was inconsistent with the distinction he had drawn between laws and approving agreements, for if congressional resolutions approving less important agreements are "laws" for purposes of the Necessary and Proper Clause, then resolutions approving even important agreements must be "laws" as well. See Ackerman & Golove, supra note 5, at 919-22. In response, of course, Professor Tribe radically shifted his view; he now holds that Congress cannot approve any agreements.
263. I.N.S. v. Chadha, 462 U.S. 919, 952 (1983).
264. Id.
265. Perhaps Professor Tribe believes recourse to historical evidence is appropriate in determining whether people at the Founding would have viewed approving an agreement as a legislative act. See supra notes 38-39 and accompanying text.
266. Madison emphasized this point in arguing that the treaty power is legislative: "One circumstance indicating this, is the constitutional regulation under which the senate give their consent in the case of treaties. In all other cases, the consent of the body is expressed by a majority of voices." Helvidius No. 1, supra note 69, at 147-48. Here, the contrast with the Appointments Clause is of significance. In that clause, the Framers subjected the President's appointments only to a bare majority senatorial veto. This departure from their usual requirement of a two-thirds vote when one of the regular lawmaking organs does not participate tends to suggest the executive character of appointments in contrast to the legislative character of approving agreements. See supra notes 69-74 and accompanying text. Madison held just this view. See supra notes 167-81 and accompanying text; infra notes 250, 253, 256, and accompanying text.
267. See U.S. Const. art. I, § 10, cl. 3.
268. Id. art. VI, cl. 2 (emphasis added).
269. Professor Tribe points to the Supremacy Clause as evidence that approving agreements is not legislative. He does so, however, only by lifting part of the clause out of context. Thus, he misleadingly quotes only the first part of the clause, which refers to "'the Laws of the United States which shall be made in Pursuance [of the Constitution]; and all Treaties made, or which shall be made, under the Authority of the United States,'" Tribe, Taking Text, supra note 3, at 1262 n.136 (quoting U.S. Const. art. VI, cl. 2), and argues that this language demonstrates that the Framers viewed lawmaking and treatymaking as different kinds of acts. He fails, however, to quote the critical portion of the clause that directly follows his quotation - both laws and treaties, it provides, "shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. Of course, the Framers distinguished between laws and treaties to provide a special procedure for approving the latter. That is why there is a Treaty Clause. But both laws and treaties, the Supremacy Clause tells us, are the "Law" of the land. As Madison put it in arguing for the legislative character of treatymaking: [T]reaties, when formed according to the constitutional mode, are confessedly to have force and operation of laws, and are to be a rule for the courts in controversies between man and man, as much as any other laws. They are even emphatically declared by the constitution to be "the supreme law of the land." Helvidius No. 1, supra note 69, at 148. Professor Tribe attempts one other thrust at textual argument. He notes that Article I, Section 1 provides that all "legislative Powers herein granted" shall be vested in Congress. U.S. Const. art. I, § 1. Since Article II vests the treaty power in the President and the Senate, ipso facto, he concludes, it must not be a legislative power. Of course, Articles II and III likewise "vest" the executive and judicial powers in the President and the courts, respectively. Professor Tribe's notion that the three types of powers neatly divide into hermetically sealed boxes, then, is entirely inconsistent with the many powers that are overlapping and concurrent. See supra notes 117-23, 131-34, 194-209, and accompanying text; infra notes 398-403 and accompanying text. Perhaps no mechanical formalist argument has more fully merited Justice Holmes's famous quip: "The great ordinances of the Constitution do not establish and divide fields of black and white." Springer v. Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J., dissenting).
270. Locke viewed all powers relating to external affairs, including the treaty power, as belonging to the "federative" power, which was distinct from the executive power. Nevertheless, both powers, he thought, ought to be united in one officer. See John Locke, Second Treatise of Civil Government § 146 (Crawford B. Macpherson ed., Hackett 1980) (1690). Montesquieu placed all external powers in the executive. See Charles de Seconat, Baron de Montesquieu, The Spirit of the Laws, bk. XI, ch. 6 (Anne M. Cohler et al. eds. & trans., Cambridge Univ. Press 1989) (1748).
271. See Peter Haggenmacher, Some Hints on the European Origins of Legislative Participation in the Treaty-making Function, in Parliamentary Participation in the Making and Operation of Treaties 19, 19-26 (Stefan A. Riesenfeld & Frederick M. Abbott eds., 1994). Professor Haggenmacher's excellent study of the early intellectual history explains that the use of treaties as a general instrument for conducting foreign affairs was still nascent at the time these authors wrote. Peace treaties were their almost exclusive form, and as such they were perceived as inextricably tied to the war power, which belonged to the sovereign (though here too the Framers departed from tradition). Also critical were changing conceptions of sovereignty, which evolved from a personal right inhering in certain persons to an attribute of nationhood residing in an absolute sovereign. Finally, as the implications of emerging notions of popular sovereignty became more clear, the attitudes of leading theorists underwent a corresponding shift. See infra notes 257-58 and accompanying text.
272. See 1 Records of the Convention, supra note 187, at 65-66, 73-74 (remarks of James Wilson) (declaring treaty power to be legislative and reflecting even in 1787 close historical association between treaty power and war power in referring to former as power to make peace); 1 id. at 70 (remarks of James Madison) (same); 2 id. at 522-23, 530 (remarks of James Wilson) (same); 2 id. at 537 (remarks of George Mason) (same). Madison expressed the same view on numerous other occasions as well. See supra notes 167, 181, 250, and accompanying text; infra note 256.
273. See Jefferson, supra note 47, § 52, at 298 ("Treaties are legislative acts. A treaty is the law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation."); Washington, supra note 181, at 378 (contrasting, in remarks to Senate committee, executive character of Senate's participation in appointments with acknowledgment that "[i]n treaties, the agency is perhaps as much of a legislative nature"). Professor Yoo concludes that the Framers believed treatymaking "to be a legislative function." John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 249 (1996);
274. see also id. at 249 & nn.399-400 (construing John Jay's view as in accord). For the best accounts of the Framers' deliberations, see Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties - The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1, 73-132 (1979);
275. Jack N. Rakove, Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, 1 Persp. Am. Hist. 233, 236-50 (1984). This is not to deny that some contemporaries may have believed that agreement-making was executive in character, though Professor Tribe has not mustered any such evidence. At a minimum, nothing in the historical evidence renders the Necessary and Proper Clause an implausible textual grounding for Congress's power to approve agreements falling within its legislative authority.
276. See The Federalist No. 75, supra note 187, at 450. In the heat of battle over Washington's unilateral declaration of neutrality between the British and the French, however, Hamilton, writing as Pacificus, switched views. See Pacificus No. 1, supra note 106, at 33, 39, 42. This provoked Madison's vigorous denial in his Helvidius letters. See Helvidius No. 1, supra note 69, at 143-50. Madison reaffirmed his earlier view and, in his concluding riposte, charged Hamilton with having borrowed his doctrine, not from the Constitution, but from the "royal prerogatives in the British government." Id. at 150. Inexplicably, Professor Tribe relies on Hamilton's initial view in Federalist No. 75, rather than his later turnabout. See infra notes 259-60 and accompanying text; infra note 261.
277. See 3 Story, supra note 202, § 1508, at 361 (discussing debates over character of treaty power); 3 id. § 1513, at 365-66 (concluding that it
278. See 3 Emmerich de Vattel, The Law of Nations or the Principles of Natural Law, bk. 2, ch. 12, § 154, at 160 (Charles G. Fenwick trans., Oceana Publications 1964) (1758).
279. Id. Vattel, with whom the Framers were apparently familiar, see United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 462 n.12 (1978) (discussing Framers' familiarity with Vattel), was a populizer of the earlier work of Christian von Wolff. Some hints of Vattel's views can even be found in Grotius. For further discussion, see Haggenmacher, supra note 252, at 27-28.
280. Tribe, Taking Text, supra note 3, at 1262.
281. The Federalist No. 75, supra note 187, at 450-51. Professor Tribe conveniently omits the entire first sentence except for the last clause, thus beginning with "though it does not seem strictly to fall with the definition of either of them." See Tribe, Taking Text, supra note 3, at 1262.
282. See Tribe, Taking Text, supra note 3, at 1265. As previously noted, Hamilton did in fact change his views subsequently, see supra note 256, but Professor Tribe relies on Hamilton's initial position in The Federalist, not his later turnabout.
283. The Federalist No. 75, supra note 187, at 451 (emphasis added).
284. 2 Annals, supra note 230, at 1900-01 (remarks of Rep. Madison).
285. See supra notes 167, 181, 250, 253, 255, and accompanying text.
286. 2 Annals, supra note 230, at 1900 (remarks of Rep. Madison) (emphasis added).
287. In Curtiss-Wright, the Court found the whole of the external affairs powers to be implicit in the nature of the federal government. See supra notes 113-15 and accompanying text; infra note 347.
288. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421-22 (1819).
289. Id. at 422. To be sure, Madison's constricted interpretation of the Necessary and Proper Clause, rather than the explicit reference to the treaty power upon which Professor Tribe relies, might well be inconsistent with the congressional-executive agreement. Madison argued that only those powers that were evidently and necessarily incident to an enumerated power were to be implied. Even this category had to be narrowed to exclude any powers that were inherently important powers in themselves. In the latter category, he placed the naturalization power, which he argued would have been too important to be implied under the Necessary and Proper Clause had it been omitted from the text, even if it were necessarily incident to an express power. See 2 Annals, supra note 230, at 1899-1901 (remarks of Rep. Madison). These arguments, however, are irrelevant for us: McCulloch swept them into the dustbin of history where they have remained ever since. Moreover, even Madison's specific claim that the naturalization power was too important to be implied has long been discredited. Although the text in fact provides for naturalization, it says nothing about the immigration power - the power to admit, exclude, and expel aliens. Yet, the Court long ago had no trouble finding plenary power in Congress over this equally important and closely related subject. See supra note 115 and accompanying text.
290. Tribe, Taking Text, supra note 3, at 1241.
291. Id. at 1244.
292. Id.
293. Id. at 1241. For discussion of this argument not as a federalism principle but as an interpretation of the expressio unius maxim, see supra notes 124-38 and accompanying text.
294. An assertion he repeats on many occasions. See, e.g., Tribe, Taking Text, supra note 3, at 1228, 1241, 1248, 1282, 1292. In defense of his claim, he only points out that the Framers assigned the power of advice and consent to the Senate, in which the states are represented equally. See id. at 1241. But Professor Tribe fails to notice that the congressional-executive agreement also requires approval by the Senate; it just includes the House as well. What is crucially at stake, then, is not the involvement of the Senate, but the two-thirds voting requirement.
295. See Ackerman & Golove, supra note 5, at 808-13 (concluding early understandings strongly support exclusivity).
296. See supra notes 69-75, 186, and accompanying text; infra note 378. The two main competing conceptions are the states' rights view and the claim that the Treaty Clause just gives the President an extraordinary option to be used when he believes that considerations of secrecy, dispatch, or long-term perspective counsel exclusion of the House.
297. See supra notes 106-38 and accompanying text.
298. See supra note 117 and accompanying text. Similar remarks are apt for the courts. Still, in a wide range of fields, the Court has repeatedly upheld Congress's power to create alternative adjudicatory tribunals outside of Article III. See supra note 118 and accompanying text. Even the choice of which powers to grant to Congress in Article I and which to the President in Article II reflect choices relevant to the division of federal and state power. Nevertheless, as we have also seen, many of these have been deemed nonexclusive. See supra notes 117-23, 131-34, 194-209, and accompanying text; see also infra notes 398-403 and accompanying text (discussing nonexclusivity of Supreme Court Original Jurisdiction Clause).
299. See supra note 115.
300. See id.
301. Tribe, Taking Text, supra 3, at 1244.
302. See id. at 1295-96 (endorsing broad reading of Congress's powers under Commerce Clause). For further discussion, see infra notes 421-23 and accompanying text. Perhaps, though, this is where the Court is moving. See Printz v. United States, 117 S. Ct. 2365, 2379 (1997) (holding Commerce Clause does not authorize Congress to commandeer state executive officials to carry out congressional policy in the Brady Handgun Violence Prevention Act); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 47 (1996) (holding Congress lacked authority under Indian Commerce Clause to abrogate state's Eleventh Amendment immu-nity in challenge to Indian Gaming Regulatory Act); United States v. Lopez, 514 U.S. 549, 561 (1995) (holding Gun-Free School Zones Act exceeded Congress's authority under Commerce Clause).
303. We have already considered the complications for his view of exclusive Article I lawmaking posed by agency rulemaking, the common law, and presidential legislating in foreign affairs. See supra notes 118, 129-30, and accompanying text. I leave to Professors Ackerman and Amar arguments justifying a nonexclusive reading of Article V. For relevant sources, see supra note 17.
304. See supra notes 131-34 and accompanying text.
305. Tribe, Taking Text, supra note 3, at 1244.
306. See supra notes 133-34 and accompanying text.
307. There are really two veto override clauses, which are the same in all relevant respects except that the first applies to bills, while the second applies to orders, resolutions, and votes. See U.S. Const. art. I, § 7, cls. 2, 3. I refer to them collectively hereafter as "the Veto Override Clause." Congressional-executive agreements are ordinarily, but not exclusively, approved by joint resolution. See Ackerman & Golove, supra note 5, at 804-05 & 805 nn.9-10 (citing examples). The second veto override clause provides, "[e]very Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary . . . shall be presented to the President," but if vetoed by him, shall only take effect if "repassed by two thirds of the Senate and House." U.S. Const. art. I, § 7, cl. 3.
308. Tribe, Taking Text, supra note 3, at 1254.
309. Id. at 1252 (quoting U.S. Const. art. I, § 7, cl. 3).
310. So far as I am aware, Congress has never attempted anything of the sort. But see infra note 291 (describing more assertive congressional actions in recent years).
311. Tribe, Taking Text, supra note 3, at 1254.
312. Even though Congress has never sought to negotiate an agreement on its own, Professor Tribe may be unaware of how close it has come towards this line in recent years. According to Professor Henkin, the so-called independent agencies have increasingly acted unilaterally on the international level, even at times negotiating agreements pursuant to congressional authority "without the participation, scrutiny or even awareness of the President or the Department of State." Henkin, supra note 9, at 129-30. This observation prompts Professor Henkin to query whether "the President is entitled to insist that he . . . be fully informed, and participate in any negotiations at least as an observer." Id. at 130 (emphasis added). Surely, Professor Tribe would object to this practice, as he does to the congressional-executive agreement. Perhaps, it is unconstitutional on other grounds. However the issue is resolved, the simple fact that it describes the actual operation of our government tends strongly to undermine his claim that independent congressional agreement-making is entirely foreign to our practices. Cf. Trade Expansion Act of 1962, Pub. L. No. 87-794, § 243, 76 Stat. 872, 878 (requiring President to include members of Congress on delegations negotiating international trade agreements and thus arguably intruding on President's control over negotiating process), repealed by Trade Act of 1974, Pub. L. No. 93-618, § 602(d), 88 Stat. 1978, 2072 (1975); Henkin, supra note 9, at 395 n.88 (describing same).
313. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) ("The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest."). Professor Tribe considers and rejects an argument suggested, though not endorsed, by Professor Henkin, that would prohibit Congress from overriding a veto in those instances when its legislation is designed to implement a presidential power under the Necessary and Proper Clause, rather than a power of its own. See Tribe, Taking Text, supra note 3, at 1256 n.117 (citing Henkin, supra note 28, at 915 n.26). I would reject this argument as well and would also reject Professor Tribe's implication that agreement-making is, in this sense, an executive power. For a different argument for avoiding the override power, which Professor Tribe considers and rejects, see id. at 1254 n.112 (rejecting, correctly, hypothetical argument that because treaty procedure is always available as an alternative, use of congressional-executive agreement is not a vote to which concurrence of both houses is "necessary," as required by Veto Override Clause). For other arguably more persuasive limitations on the veto override power, see infra notes 304, 308, and accompanying text.
314. By "independent congressional agreement-making," I mean any effort by Congress to negotiate or ratify an international agreement either on its own or by directing the President to implement its policy.
315. The veto override power enters into this argument only indirectly. Because the President could veto any congressional resolution directing him to ratify a congressionalexecutive agreement, the constitutional problem Professor Tribe identifies would ordinarily not arise. It can occur only if Congress overrides the President's veto. But, as we shall see, in objecting to such a resolution, the President would be most unlikely to point to the Veto Override Clause as the problem; his objection would be based on substantive constitutional law. When Congress approves a congressional-executive agreement, it simply passes a resolution authorizing the President to conclude the agreement on the international level. As a result, the President would be most unlikely to veto the resolution of approval. Not requiring him to do anything in particular, he would have little reason to oppose it. Were he nevertheless to exercise the veto - and were Congress even more inexplicably to override - there would still be no real constitutional issue. The override would presumably be valid, but the resolution would only amount to an authorization that the President could freely disregard. On the other hand, were Congress to pass a resolution directing him to ratify an agreement, the President would be most likely to veto it (unless he favored the agreement, in which case he might just register his objections). And if Congress overrode his veto, he would most likely be unwilling to abide by its command. This result, however, would have nothing whatever to do with the Veto Override Clause, but rather with the President's view that the resolution, by directing him to ratify an agreement, had unconstitutionally invaded his exclusive sphere. The override would not itself be unconstitutional; it would be the bill's substance that would provoke objection.
316. This may lead one to wonder why Professor Tribe has not broadened the focus of his textual attack to include not only the congressional-executive agreement but the President's non-textually-based sole organ power as well. While both practices find their historical roots in practice, the latter, as we shall see, provides a far more congenial context for a convincing textualist challenge. See infra notes 309-18 and accompanying text.
317. Although he does not make the argument, perhaps Professor Tribe's sense of symmetry is offended by the idea that Congress can make agreements on its own but that the Senate, under the Treaty Clause, cannot. Yet, this seems perfectly consistent with the Framers' larger design: Congress can make an agreement over the President's veto, because when two-thirds of both houses are in favor, there is a strong enough national consensus to override the President's objections. However, the Senate acting alone could never reliably represent such a strong national consensus.
318. 299 U.S. 304 (1936). Justice Sutherland's opinion has been roundly criticized for, among other things, its expansive dicta on the President's role in foreign affairs. See, e.g., Harold Hongju Koh, The National Security Constitution: Sharing Power After the IranContra Affair 93-94 (1990) (criticizing opinion's key language as historically inaccurate and ambiguous dicta);
319. Charles A. Lofgren, United States v. Curtiss-Wright Export Corporation: An Historical Reassessment, 83 Yale L.J. 1 (1973) (concluding Justice Sutherland provided no constitutional or historical ground for his broad view of broad, presidential foreign affairs). In favor of his propresidential bias, Professor Tribe, like Justice Sutherland, points to the President's superior access to, and ability to protect, confidential information necessary to international agreement-making. See Tribe, Taking Text, supra note 3, at 1254-55 (quoting with approval Curtiss-Wright, 299 U.S. at 320, on this point).
320. Compare the President's power as Commander-in-Chief, see U.S. Const. art. II, § 2, cl. 1, to appoint and receive ambassadors and public ministers, see id. art. II, § 2, cl. 2, id. art. II, § 3, to make treaties, see id. art. II, § 2, cl. 2, and to take care that the laws are faithfully executed, see id. art. II, § 3, with Congress's power to declare war, see id. art. I, § 8, cl. 11, to grant letters of marque and reprisal, see id., to make rules for captures on land and water, see id., to regulate foreign commerce, see id. art. I, § 8, cl. 3, to provide for the common defense of the United States, id. art. I, § 8, cl. 11, to raise and support armies, see id. art. I, § 8, cl. 12, to provide and maintain a navy, see id. art. I, § 8, cl. 13, to make rules for the government and regulation of the land and naval forces, see id. art. I, § 8, cl. 14, to provide for organizing, arming, disciplining, and calling forth the militia, see id. art. I, § 8, cls. 15, 16, to define and punish offenses against the law of nations and on the high seas, see id. art. I, § 8, cl. 10, to establish a uniform rule of naturalization, see id. art. I, § 8, cl. 4, to establish offices (including those pertinent to foreign affairs), see id. art. II, § 2, cl. 2, and to make all laws necessary and proper for carrying into execution all of Congress's enumerated powers and the powers conferred on any other branch of the government, see id. art. I, § 8, cl. 18. In his Helvidius letters, Madison used this comparison to demonstrate that the conduct of foreign affairs is principally a legislative function given to the Congress. See Helvidius No. 1, supra note 69, at 145-48.
321. See Henkin, supra note 9, at 31-36 (noting limited textual support for breadth of foreign affairs powers exercised by President). As Professor Henkin puts it: A stranger reading the Constitution would get little inkling of such large Presidential authority, and the general reader might comb the Constitution yet find little to support the legitimacy of large Presidential claims. The powers explicitly vested in him are few and appear modest, far fewer and more modest than those bestowed upon Congress. What the Constitution says and does not say, then, can not have determined what the President can and can not do. The structure of the federal government, the facts of national life, the realities and exigencies of international relations . . ., and the practices of diplomacy, have afforded Presidents unique temptations and unique opportunities to acquire unique and ever larger powers. Id. at 31. The desire to find a home in the text for the President's broad powers has also led some to repair to the Hamiltonian reading of the Executive Power Clause despite the linguistic leap of faith it demands and the ominous possibilities it opens. See id. at 40 (discussing debate over Hamiltonian reading); see also supra notes 106-09 and accompanying text (discussing difficulty with this argument); infra note 342 and accompanying text (same).
322. Tribe, Constitutional Law, supra note 11, § 4-1, at 209. Professor Tribe then viewed the textual grants of foreign affairs powers in Article II as "textual manifestations of the inherent presidential power" to administer the foreign relations of the nation. Id. § 4-4, at 220.
323. See Henkin, supra note 28, at 920-30 (arguing for plenary congressional power); see also Henkin, supra note 9, at 71-72 (same); supra notes 28, 48-52, 298, and accompanying text (discussing support for this view).
324. See Henkin, supra note 9, at 71-72 ("[T]he Foreign Affairs Power would support legislation on any matter so related to foreign affairs that the United States might deal with it by treaty . . . ."); Henkin, supra note 28, at 920-30 (arguing same).
325. For further discussion, see Corwin, The President, supra note 119, at 220-21 & 478 n.58; Jesse S. Reeves, The Jones Act and the Denunciation of Treaties, 15 Am. J. Int'l L. 33 (1921).
326. Some have claimed that a declaration of war ought not be subject to the veto, see, e.g., 28 Cong. Rec. 2107 (1896) (remarks of Sen. Morgan); most have disagreed, see, e.g., Berdahl, supra note 118, at 79-80, 95-96 (arguing that declaration of war is, like any other bill or resolution, subject to veto); Clinton Rossiter, The Supreme Court and the Commander in Chief 66 n.1 (Richard P. Longaker ed., rev. ed. 1976) (same);
327. James Schouler, Constitutional Studies, State and Federal 137 (New York, Dodd, Mead & Co. 1897) (same);
328. Simeon E. Baldwin, The Share of the President of the United States in a Declaration of War, 12 Am. J. Int'l L. 1 (1918) (same). Grover Cleveland was reportedly prepared to veto a possible declaration of war against Spain. See Rossiter, supra, at 66 n.1. More recently, the decision in I.N.S. v. Chadha, 462 U.S. 919 (1983), and its application to the War Powers Resolution, 50 U.S.C. §§ 1541-1548 (1994) (giving Congress legislative veto over use of troops in hostilities), stirred debate over the issue. Some have argued that Section 1545(c)'s legislative veto provision is not unconstitutional because the President has no authority to veto a declaration of war and thus Congress need not "present" a declaration for his consideration.
329. See, e.g., Stephen L. Carter, The Constitutionality of the War Powers Resolution, 70 Va. L. Rev. 101, 129-32 (1984);
330. Leonard G. Ratner, The Coordinated Warmaking Power - Legislative, Executive, and Judicial Roles, 44 S. Cal. L. Rev. 461, 478-80, 489 (1971);
331. War Powers and the Responsibility of Congress, 82 Am. Soc'y Int'l L. 1, 3-5 (1990) (remarks of Sen. Brock Adams and Prof. Louis Henkin). Still more recently, a scholarly debate has opened on the issue. Professor William Treanor, an excellent legal historian, claims that the original intent of the Framers was that a declaration was not subject to the veto, although admittedly I find the sources upon which he relies less convincing than he.
332. See William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 Cornell L. Rev. 695, 724-29 (1997).
333. Compare Philip Bobbitt, War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath, 92 Mich. L. Rev. 1364, 1385 n.69 (1994) (reaching same conclusion on textual grounds),
334. John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 231 n.21 (1993) (taking opposing view).
335. For an account of President Jefferson's efforts to avoid war with Great Britain in 1807, President Grant's in 1869, and Presidents Cleveland and McKinley's with respect to Spain in the later years of the nineteenth century, see Berdahl, supra note 118, at 84-92.
336. See U.S. Const. art. I, § 10, cl. 3.
337. Professor Tribe seems to fall into confusion in arguing at a later point that Congress's power to override the President's veto of a state compact or agreement "renders all the more remarkable a constitutional interpretation that would allow Congress to make what amount to treaties over presidential veto." Tribe, Taking Text, supra note 3, at 1271 n.172. It is hard to understand this passage as anything but a non sequitur. The fact that Congress can override a presidential veto of a state agreement hardly makes it more surprising that it could do the same for a federal agreement. It should be noted, as well, that state agreements with foreign states would appear to be binding under international law on the United States. See Wright, Control, supra note 89, § 157, at 232-33 (indicating that state agreements that are binding under international law involve a "national responsibility").
338. Perhaps, limitations on Congress's power to override a presidential veto might be suggested by another parallel drawn from the war powers. While the historical debates have mostly questioned the applicability of the President's veto power to congressional declarations of war, the reverse might also be defended: Congress has no power to push the country into war over the objections of the President. Most commentators seem to have rejected this view, just as they have rejected the claim that declarations are not subject to the veto. See, e.g., Berdahl, supra note 118, at 95-96 (acknowledging both veto and veto override power); Schouler, supra note 304, at 137 (same). On the other hand, the Framers' apparent design to make war as difficult as possible to enter would provide some support for finding an exception to the veto override provisions. Perhaps, by analogy, a similar argument could be made in favor of an override exception in the agreementmaking context. I will not, however, pursue this point further. Other objections to Professor Tribe's view make consideration of this point unnecessary. Alternatively, assuming Congress may issue a declaration of war even over the President's veto, it is less clear from a textual perspective that it can also force him as Commander-in-Chief to bring the army into battle. President Cleveland threatened to refuse to mobilize the army if Congress forced an unwanted declaration of war against Spain upon him. See 2 Robert McElroy, Grover Cleveland: The Man and the Statesman 249-50 (1923). Without an army in the field, presumably, there is no fighting war, Congress's declaration notwithstanding. Here, again, by analogy, perhaps Congress can override a presidential veto of a resolution approving an international agreement, but the President nevertheless is under no obligation to ratify the agreement and thereby to make it binding on the United States internationally. In any case, as to both of the war powers arguments, my own view favoring congressional primacy in foreign affairs - most dramatically evident in the case of the war powers - would support Congress's ultimate authority to override the President's objections and the constitutional obligation of the President to fight any war Congress declared even over his veto. I do not claim that this affirmation of congressional supremacy, however, can be justified on the basis of a plain meaning construction of the text. In any case, I do pursue a related argument concerning the scope of the President's negotiating powers in the text below.
339. 10 Annals of Cong. 613 (1800) (remarks of Rep. John Marshall). Marshall, then a representative in the House, made these famous remarks during the debate over President Adams's extradition of Jonathan Robbins to Great Britain.
340. See generally Ruth Wedgwood, The Revolutionary Martyrdom of Jonathan Robbins, 100 Yale L.J. 229 (1990) (discussing Robbins affair and its effect on debate over executive power in foreign affairs).
341. See Corwin, The President, supra note 119, at 213-14 (discussing history of sole organ power); Henkin, supra note 9, at 41-42 (discussing sources of power).
342. Even Professor Tribe acknowledges that Article II has only a "nebulous connection to the subject of negotiation." Tribe, Taking Text, supra note 3, at 1257.
343. Henkin, supra note 9, at 41-42; see also Corwin, The President, supra note 119, at 214 & 476 n.46 (quoting justification on similar lines by President Grant). The sole organ power may also find additional support in the President's powers to make treaties, as Commander-in-Chief, and to faithfully execute the law. Perhaps, it is an implication of all of the powers granted in Article II.
344. For an early confirmation of this view, see Jefferson's letter to the controversial French Minister Genet: [B]eing the only channel of communication between this country and foreign nations, it is from [the President] alone that foreign nations or their agents are to learn what is or has been the will of the nation; and whatever he communicates as such, they have a right, and are bound to consider as the expression of the nation, and no foreign agent can be allowed to question it. Letter from Thomas Jefferson to Edmond Charles Genet, Minister of France (Nov. 22, 1793), in 6 The Writings of Thomas Jefferson 451, 451 (Paul Leicester Ford ed., New York, G.P. Putnam's Sons 1895). In 1799, Congress passed the Logan Act, ch. 1, 1 Stat. 613 (1799) (codified as amended at 18 U.S.C. § 953 (1994)), which makes it a crime for any person to correspond with a foreign nation with an intent to influence its conduct in relation to a dispute involving the United States. See generally Corwin, The President, supra note 119, at 213-14 & 476 nn.43-44 (discussing history of Logan Act and its use).
345. For an account of this and other equally extreme incidents, see Corwin, The President, supra note 119, at 214 & 476 nn.45-46.
346. In a reversal of the actual (and tragic) trend, imagine a Congress hell-bent on ratifying human rights treaties and a resistant President who rejects the handiwork of earlier occupants of his office. For commentary on actual congressional attitudes since the Bricker Amendment controversy, see Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int'l. L. 341 (1995).
347. Nevertheless, most foreign relations scholars have thought that the sole organ power extends even to the formulation of the policy the President is to communicate. The President, many have claimed, not only communicates but determines what, if anything, is to be communicated. See, e.g., Henkin, supra note 9, at 42, 119, 249 ("Attempts by Congress to instruct U.S. representatives are highly questionable as a matter of constitutional separation of powers, and are usually only hortatory or are likely to be treated as such by the President."). Under this view, Congress would have no power to oblige the President to communicate an instrument of ratification to foreign states. As a consequence, even if Congress had the temerity, or the moxie, to override a veto of a resolution directing the President to ratify a particular agreement, the President would almost certainly disregard its pretensions. On the other hand, there is some practice arguably suggesting the contrary view. See supra note 291. The President's exclusive authority to communicate with foreign states may also provide an argument against a congressional power to place the nation in a state of war over presidential objection. Perhaps a declaration of war does not become effective as an international act until it is communicated to the opponent, and this power belongs solely to the President. See supra notes 304-05 and accompanying text (discussing veto power and declarations of war).
348. My own position even in this area favors shared powers in foreign affairs with congressional preeminence in the event of conflict, a view with strong roots, as I have sought to demonstrate, in the text. In this respect, however, my approach has not always been fully accepted. Certainly, it was not what Justice Sutherland had in mind in his expansive dicta in the Curtiss-Wright case. See infra note 338 and accompanying text.
349. See, e.g., Restatement, supra note 9, § 339 reporters' note 1 (resting President's unilateral power to terminate treaties on what sole organ power has become "as it has developed over almost two centuries"); Henkin, supra note 9, at 41-45 (describing historical development of sole organ power). Were Professor Tribe to rely on the historical materials, there would be no need for his exhaustive mining of the text to resolve the ambiguities inherent in the Treaty Clause. The point of the painstaking historical exegesis in which Professor Ackerman and I engaged was precisely to demonstrate that the practice during the first 150 years supports only the exclusive reading. In this respect, Professor Tribe's argument against independent congressional agreement-making faces precisely the same dilemma as his argument against the congressional-executive agreement. Neither of these practices are, as Professor Tribe would have it, inconsistent with plausible readings of the text. The principal argument against both is that they are inconsistent with historical understandings and practice. But the textual case for the congressional-executive agreement cannot be undermined by its purported inconsistency with the historically-based injunction against independent congressional agreement-making. This is especially so because the two histories are intimately intertwined. At least one obvious reason for the absence of any practice during the first 150 years supporting an independent congressional agreement-making power is that the Treaty Clause itself was understood to be exclusive. If the Treaty Clause makes senatorial consent the exclusive procedure for concluding international agreements, then, a fortiori, Congress cannot make agreements on its own authority, either by appointing its own agent to conduct negotiations or by directing the President to negotiate or ratify an agreement to which he objects. Thus, the same practice that supports the exclusivity of the Treaty Clause likewise supports the case against independent congressional agreement-making. It makes no sense to eschew reliance on this history when arguing the main point in contention but then to resort to the very same history to establish a related point which can then be used as an argument in favor of the exclusive view.
350. For Professor Tribe's argument, see Tribe, Taking Text, supra note 3, at 1251, 1253-54, 1256-58. He repeatedly invokes a brief line in our article in which we stated that Articles I and II are "'great and independent grants of power,'" id. at 1253 (quoting Ackerman & Golove, supra note 5, at 920 (emphasis added by Professor Tribe)), and he insists that this means, in our view, that Congress's and the President's powers are to be construed wholly independently of each other. Of course, we meant nothing of the kind, and he only reaches this conclusion by lifting the quotation out of context. What we said was that Articles I and II are "great and independent grants of power, each of which suffices to justify the creation of international obligations." Ackerman & Golove, supra note 5, at 920 (emphasis added). No claim of global independence was stated or implied, and any such position would, in my view, be wholly unpersuasive. Our only claim - and the claim I defend here - is that there is a plausible textual case for the view that Congress has an Article I power to approve international agreements that is independent of the Article II power of the President and the Senate to make treaties. In other areas, the President's Article II powers may well be best read to limit Congress's Article I authority, and vice versa. Such questions can only be resolved on a case-by-case basis. That Professor Tribe nevertheless seriously believes that his construction of our position is essential to the argument for the congressional-executive agreement is strongly suggested by his later argument that construing the Treaty Clause as nonexclusive requires one to construe the Appointments Clause as nonexclusive as well, hence allowing Congress to vest the appointment of a new Trade and Commerce Secretary in the Supreme Court. See Tribe, Taking Text, supra note 3, at 1273-75. Why this should be the case is mysterious. Presumably, moreover, he thinks acceptance of the congressional - executive agreement necessarily wipes out the "sole" in the sole organ power - if Congress wishes to conduct our foreign affairs, it may do so without intruding on the President's exclusive authority. Indeed, unless the Treaty Clause is exclusive, there is no exclusively executive authority.
351. See Tribe, Taking Text, supra note 3, at 1256 (citing Henkin, supra note 9, at 45-46).
352. See supra notes 117-23, 131-34, 194-209, and accompanying text.
353. See supra note 119. Especially revealing are the decisions in which the Court has held that Congress's implied powers over immigration are (partially) concurrent with the President's implied powers over the same subject. See supra note 120.
354. See supra notes 68-75, 186, 273, and accompanying text; infra note 378.
355. Professor Tribe hypothesizes and then rejects a possible response to his veto override argument. See Tribe, Taking Text, supra note 3, at 1253 n.108. Someone, he imagines, might point out that the President could always unilaterally terminate a congressionalexecutive agreement approved by Congress over his veto. It would thus be in his power to put an end to the agreement at any time, including at the moment it becomes effective. According to Professor Tribe, however, this argument is wrong because, although the President may unilaterally terminate a treaty, he may terminate a congressional-executive agreement only with Congress's consent. This conclusion follows, he thinks, from the general principle that the President may not repeal an act of Congress. See id. While I fully agree that the hypothetical rejoinder he postulates is wrong, there is no reason to rest its refutation on any limitations on the President's unilateral termination powers, a subject which is far more complicated than Professor Tribe acknowledges. See supra note 180. Perhaps his concern about the President repealing an act of Congress simply reveals a misconception of what terminating an international agreement involves. When the President terminates a treaty, he is taking an act on the international level - abrogating the treaty for purposes of international law. The treaty ceases to have effect as domestic law not because the President has the power to repeal domestic law, but because the domestic effect of the treaty depends upon its status under international law. Similarly, when the President terminates a congressional-executive agreement, he is acting solely on the international level - upon termination, the agreement will no longer bind the United States under international law. But the President has no power to "repeal" the domestic effect of the congressional legislation implementing the agreement. Whether that legislation will still be binding as domestic law will depend on whether Congress explicitly or implicitly provided that it would survive the abrogation of the international obligation the legislation was designed to implement. Ordinarily, we presume that Congress intends to make such legislation dependent upon the reciprocally binding international obligation. Of course, the same applies to non-self-executing treaties that Congress implements through legislation. When the President terminates such a treaty, we ordinarily presume that Congress did not intend for the implementing legislation to continue in force notwithstanding the termination of the international obligation. In any case, there are two conclusive objections to Professor Tribe's hypothetical response even assuming, contrary to his claim, that the President may unilaterally terminate a congressional-executive agreement. First, Congress will already have bound the nation's good faith. The fact that the President could willy-nilly place us in violation of our international obligations hardly cures the supposed constitutional defect. Although some treaties may be terminable at will, most have termination clauses restricting the rights of the parties to denounce or withdraw from the agreement. See Restatement, supra note 9, § 332 (describing international law of treaty termination); id. § 332 cmt. a (elaborating on same). Second, as explained above, Congress could limit the President's termination power simply by writing restrictions into the resolution approving the agreement, just as the Senate may when giving its consent to a treaty. See id. § 339 cmt. a (affirming Senate's power to restrict unilateral treaty terminations); id. § 339 reporters' note 3 (elaborating on same); Tribe, Taking Text, supra note 3, at 1253 n.108 (suggesting same). Consequently, even if the President could otherwise unilaterally terminate the agreement, Congress can remove that power. Of course, even though Professor Tribe's hypothetical rejoinder is unpersuasive, we have already seen that his veto override argument is meritless on other grounds.
356. For the distinctly negative bearing of the Appointments Clause on the textual case for the unilateral executive agreement, especially under Professor Tribe's formalistic interpretive approach, see supra note 161. This difficulty seems not to trouble him, even while he argues that the Appointments Clause rules out the congressional-executive agreement. See supra Part III.A.2.
357. In theory, the Framers might still have had a reason for the Treaty Clause - treaties supersede prior conflicting law, whereas unilateral executive agreements probably do not. See infra note 357 and accompanying text. However, this difference is hardly adequate to explain the special precautions the Framers wrote into the text. Had their concern been solely with the domestic legal status of agreements, surely they would have left implementation to the whole Congress, as they in fact did for the power to pass legislation implementing treaties and superseding them for domestic law purposes.
358. To be sure, it is possible that, notwithstanding these arguments, the Framers might have accepted the President's unilateral powers as a necessary incident of his supervision of the conduct of foreign affairs but have rejected the same for Congress. Perhaps, the total exclusion of the states from unilateral presidential agreements did not concern them overly because they assumed that unilateral agreements would be quite modest in scope. Perhaps, in contrast, they thought that a parallel power in Congress to approve agreements incident to its enumerated powers would be more worrisome because of its potentially greater scope, despite the participation of the Senate by majority vote in the approval process. The problem for Professor Tribe, however, is that the Framers failed to write this distinction into the text and, for present purposes, that is the only point that matters given his insistence that the rarefied textual case - divorced from history - is all that is in issue. For further discussion of this argument, see infra note 380.
359. See supra notes 235-37 and accompanying text.
360. See Corwin, President's Control, supra note 119, at 116-25 (treating various examples of unilateral executive agreements as exercises of President's diplomatic and commander-in-chief powers); Samuel B. Crandall, Treaties: Their Making and Enforcement §§ 56-61 (2d ed. 1916) (same); 2 Charles Cheney Hyde, International Law: Chiefly as Interpreted and Applied by the United States §§ 507-09 (1922) (providing examples of various classes of unilateral executive agreements); Treaties, 2 Wharton Digest § 131, at 12 ("Matters exclusively of Executive discretion . . . may be settled by protocols which . . . need not be submitted to the Senate."); Wright,
361. See Tribe, Taking Text, supra note 3, at 1265.
362. See id.
363. See id. at 1265-66.
364. See id. at 1266.
365. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-18 (1936) (claiming that foreign affairs powers are plenary and are vested in federal government as an incident of national sovereignty).
366. See supra notes 106-09 and accompanying text.
367. For Professor Tribe's argument on these points, see Tribe, Taking Text, supra note 3, at 1264-69.
368. See supra notes 247-62 and accompanying text.
369. Indeed, Justice Sutherland's only reference to the power to make agreements without the consent of the Senate cites the Court's earlier decision in B. Altman & Co. v. United States, 224 U.S. 583, 600-01 (1912). See Curtiss-Wright, 299 U.S. at 318. Altman, however, dealt with a precursor to the modern ex ante congressional-executive agreement. See Ackerman & Golove, supra note 5, at 831-32 (discussing Altman). If anything, then, Curtiss-Wright would appear to support the claim that approving agreements is at least sometimes a legislative function.
370. This is not to suggest that concluding some types of agreements might not be thought of as properly executive in character. Despite the lack of any specific evidence about the Framers' view, one might reasonably think that this characterization would apply to agreements "as to the rights of an individual, the treatment of a vessel, a matter of ceremonial, or any of the thousand and one things that daily occupy the attention of foreign offices without attracting public notice." Moore, supra note 20, at 389. But no one - and certainly not Professor Tribe - claims that the President's unilateral authority is limited to these routine administrative matters. See id. at 390-93 (providing examples of more substantive agreements concluded by President acting alone).
371. See supra notes 106-09, 299, and accompanying text.
372. For further discussion, see infra note 378. Furthermore, Professor Tribe would seriously weaken any argument for placing limits on the kinds of agreements Congress can approve incident to its foreign affairs powers, since nothing in Article I, Section 8 or the Necessary and Proper Clause suggests that the Framers wished to allow Congress to approve some agreements but not others. See infra note 378.
373. Hamilton initiated the controversy in his Pacificus letters which immediately prompted Madison's famous refutation (at Jefferson's urging) as Helvidius. See Henkin supra note 9, at 39-40 & 338 n.13 (discussing historical controversy); supra notes 106-09 and accompanying text (discussing Hamiltonian view). For Hamilton's argument see Pacificus No. 1, supra note 106, at 38-39. Webster and Calhoun later opposed Hamilton's view. See Henkin, supra note 9, at 338 nn.13 & 17. And while Chief Justice Taft seemed to adopt it in Myers v. United States, 272 U.S. 52, 118, 128 (1926), Justice Black, writing for the Court, pointedly refused even to consider the Executive Power Clause as a possible source of presidential power in the Steel Seizure Case, Youngstown Sheet & Tube Co v. Sawyer, 343 U.S. 579, 587-88 (1952). In his celebrated concurring opinion moreover Justice Jackson, President Roosevelt's former Attorney General, expressly denounced such a doctrine as dangerous, and the Court has not invoked it since. See id. at 640-41 (Jackson J., concurring). Academic opinion is also skeptical. See, e.g., Henkin, supra note 9, at 39-40 (discussing argument that Executive Power Clause is source of foreign affairs powers); Edward S. Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum. L. Rev. 53, 53-55 (1953) (warning that overextension of presidential power through Hamiltonian reading of Executive Power Clause threatens rule of law). Ironically one the most powerful objections to Hamilton's position is its textual implausibility. Why would the Framers have enumerated trivial powers, like the power to require written opinions by the heads of executive departments, if the Executive Power Clause was a grant in bulk of all powers that are executive in character? See supra note 109 (discussing objections to Hamiltonian view).
374. See supra notes 328-29 and accompanying text; infra note 376.
375. Henkin provides a particularly useful discussion. See Henkin, supra note 9, at 185-98; see also H.R. Rep. No. 48-2680, at 1-6 (1885) (arguing for limits on scope of treaty powers); 1 Butler, supra note 47, §§ 3-7 (discussing early controversies and taking expansive view of treaty power); 2 John Randolph Tucker, The Constitution of the United States §§ 354-356 (Chicago, Callaghan & Co. 1899) (same, but taking narrow view); 1 Westel Woodbury Willoughby, The Constitutional Law of the United States §§ 206-219 (1910) (same, taking expansive, but more moderate view). There have been arguments for restrictions derived variously from the nature of international undertakings, the specific prohibitions of the Constitution, the principle of federalism, and the separation of powers doctrine in its many different guises. Some of these have been accepted, but most have been rejected in time. See Henkin, supra note 9, at 185-98 (providing critical review).
376. 3 Story, supra note 202, § 1502, at 355.
377. Restatement, supra note 9, § 303(1); see also id. § 303 cmt. b (elaborating on same). Hamilton reached the same conclusion, noting: It was impossible for words more comprehensive to be used than those which grant the power to make treaties. They are such as would naturally be employed to confer a plenipotentiary authority. . . . With regard to the objects of the Treaty, there being no specification, there is of course a charte blanche. The general proposition must therefore be that whatever is a proper subject of compact between Nation & Nation may be embraced by a Treaty . . . . The Defence No. 36, supra note 47, at 6; see also Congressional Research Serv., Treaties, supra note 329, at xxxviii, 41-42 (noting that "treaty power is recognized by the courts as extending to any matter that is properly the subject of international negotiations"); 29 Annals of Cong. 531-32 (1816) (remarks of Sen. Calhoun) (noting that "[w]hatever, then, concerns our foreign relations; whatever requires the consent of another nation, belongs to the treaty power"); 11 U.S. Dep't of State, Foreign Affairs Manual § 721.2(a) (rev. ed. Feb. 25, 1985) ("The President, with the advice and consent of two-thirds of the Senators present, may enter into an international agreement on any subject genuinely of concern in foreign relations . . . ."), reprinted in Congressional Research Serv., Treaties, supra note 329, at 301, 303; 1 Butler, supra note 47, § 3, at 5 (stating that treaty power "extends to every subject which can be the basis of negotiation and contract between any of the sovereign powers of the world"); 1 id. §§ 261, 264, 268 (discussing views of leading early commentators on Constitution, including William Rawle, George Ticknor Curtis, and John Norton Pomeroy, which were to same effect); Treaties, 5 Hackworth Digest § 462, at 5-11 (collecting various statements, including by Secretary of State Elihu Root, Charles Evans Hughes (later Secretary of State and Chief Justice), Quincy Wright, and Senator Kellogg (later Secretary of State)); Henkin, supra note 9, at 185-99 (affirming unrestricted character of treaty power); Treaties, 5 Moore Digest § 735, at 164 (reprinting note by Secretary of State Calhoun asserting that "treaty-making power has, indeed, been regarded to be so comprehensive as to embrace, with few exceptions, all questions that can possibly arise between us and other nations, and which can only be adjusted by their mutual consent"); Wright, Control, supra note 89, §173, at 247-48 (noting that treaty power "extends to 'any matter which is properly the subject of negotiations with a foreign country'" (quoting Geofroy v. Riggs, 133 U.S. 258,266 (1890))); Charles Cheney Hyde, Constitutional Procedures for International Agreement by the United States, 31 Am. Soc. Int'l L. 45, 53 (1937) (affirming same); Moore, supra note 20, at 388 (same). There is some isolated language in a few of the early twentieth century commentators that could be read to suggest otherwise, but in context it is apparent that they were seeking to explain the basis for and limits on the President's unilateral powers, not to suggest restrictions on the scope of the treaty power. See Barnett, supra note 329, at 18, 82; Moore, supra note 20, at 388. John Bassett Moore, for example, declared: "[I]t can easily be demonstrated that the word 'treaties,' as used in the constitutional law of the United States, does not embrace any and every kind of international agreement." Id. But this statement is immediately followed by his explanation that the term "treaty" has a purely procedural meaning, referring to "agreements approved by the Senate," and his affirmation that any agreement approved by the Senate is automatically "in the strict sense a 'treaty,'" with the specific legal character mandated for treaties in the Supremacy Clause. Id.; see also infra note 359 and accompanying text (discussing Moore's view). Moore also specifically recognized that even when an agreement falls within the President's unilateral powers, the Senate is not without power over the same agreement. See Moore, supra note 20, at 393, 414 (recognizing that President may conclude claims settlements and postal conventions as executive agreements or may submit them for senatorial advice and consent); see also Barnett, supra note 329, at 68-70, 76-77 (recognizing that President may conclude claims settlements, postal conventions, and tariff agreements as executive agreements but that Senate may approve them as treaties as well).
378. See, e.g., Asakura v. City of Seattle, 265 U.S. 332, 341 (1924) (affirming unrestricted character of treaty power); Geofroy v. Riggs, 133 U.S. 258, 266-67 (1890) (same); Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872) (same); Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 569 (1840) (opinion of Taney, C.J.) (same). In Geofroy, the Court, per Justice Field, declared: That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear. . . . [I]t is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Geofroy, 133 U.S. at 266-67. The Court did recognize, however, that there might be limits on the treaty power of an entirely different order: "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States." Id. at 267. Against these clear and weighty authorities, it is arguable, although by no means clear, that Justice Sutherland expressed a contrary view in a passing dictum in his Curtiss-Wright opinion. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936). Curtiss-Wright, of course, did not involve an international agreement of any kind, dealing only with the scope of the nondelegation doctrine in external, as opposed to domestic, affairs. Nonetheless, Justice Sutherland famously took the case as an opportunity to expound upon his controversial theory of the foreign affairs powers. See id. at 315-22. The external powers of the United States, he claimed, do not depend upon the affirmative grants in the Constitution but simply devolve upon the federal government as concomitants of the concept of sovereignty under international law. Hence, "[t]he powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality." Id. at 318. But these powers were, in fact, expressly delegated to the United States, and so, to demonstrate his point, Justice Sutherland cited a number of other powers that are not expressly mentioned in the text but still, he claimed, had been found to exist "as inherently inseparable from the conception of nationality" and without which "the United States is not completely sovereign." Id. Among these, he said, was "the power to make such international agreements as do not constitute treaties in the constitutional sense." Id.; see also United States v. Belmont, 301 U.S. 324, 330-31 (1937) (arguably suggesting same in opinion by Justice Sutherland rendered one year after Curtiss-Wright). If Justice Sutherland indeed meant to suggest that there are two kinds of international undertakings comprising exclusive sets, treaties and agreements, and that the Senate has no power to consent to agreements, only to treaties - and that an unenumerated agreement-making power was therefore required to enable the federal government to conclude agreements - there are several reasons why his view is unpersuasive. First, it is evident that Justice Sutherland was driven to this position not for textual or historical reasons, but in order to find support for his remarkable claim that the foreign affairs powers are inherent and not dependent on enumeration. The only decision he cites for his claim about the agreement-making power is B. Altman & Co. v. United States, 224 U.S. 583, 600-01 (1912). See Curtiss-Wright, 299 U.S. at 318. Altman, however, involved a tariff reciprocity agreement authorized by act of Congress, and although the Court did not address the issue squarely, it clearly grounded the agreement's validity in Congress's foreign commerce powers and the President's duty to faithfully execute the law, not in the law of nations or sovereignty. See Altman, 224 U.S. at 601 (observing that agreement dealt with "important commercial relations between the two countries" "authorized by the Congress" and "proclaimed by the President"). Nor does anything in the opinion suggest that the tariff agreement could not have been submitted to the Senate - an outlandish proposition in light of the long national experience with tariff treaties. See, e.g., U.S. Tariff Comm'n, Reciprocity and Commercial Treaties 21-38 (1919) (describing history of tariff treaties and agreements); Barnett, supra note 329, at 64-65, 70 (referring to same and concluding "there are certain ends, which, under our Constitution, may be attained in two different ways").
379. See generally Ackerman & Golove, supra note 5, at 815-20 (reviewing history and scope of unilateral executive agreement-making, including claims settlements). Perhaps the first unilateral executive agreement under the Constitution was John Adams's settlement in 1799 of the private claims of American citizens in the Wilmington Packet affair. See Wallace McClure, International Executive Agreements: Democratic Procedure Under the Constitution of the United States 43-44 (1941) (providing history).
380. Moore, supra note 20, at 399. Indeed, in our first century, the preferred method appears to have been the treaty. See Richard B. Lillich, The Gravel Amendment to the Trade Reform Act of 1974, 69 Am. J. Int'l L. 837, 844-45 (1975) (noting that treaties were predominant form for making claims settlements in nineteenth century). In 1905, Moore counted 20 instances in which claims settlements had been processed as treaties; Presidents had settled many unilaterally as well. See Moore, supra note 20, at 402-03, 408 (compiling examples).
381. 453 U.S. 654 (1981).
382. Id. at 679. For repeated affirmations of the availability of both procedures, see, e.g., Crandall, supra note 329, at 86; Treaties, 5 Hackworth Digest § 515, at 404; Agreements Not Submitted to the Senate, 5 Moore Digest § 752, at 211 (reprinting statement of Secretary of State Cass); Wright, Control, supra note 89, § 171; Barnett, supra note 329, at 76-77; John W. Foster, The Treaty-Making Power Under the Constitution, 11 Yale L.J. 69, 77 (1901); Lillich, supra note 349, at 844-45.
383. See supra note 329.
384. 301 U.S. 324 (1937).
385. 315 U.S. 203 (1942).
386. Claims settlements are not the only kinds of agreements that were alternately concluded as executive agreements and treaties during the first century of the country. Among others, postal conventions, tariff agreements, and even modi vivendi all took on both forms. See, e.g., 2 Butler, supra note 47, § 463, at 367 n.2 (describing alternative use of both forms for modi vivendi)', John Mabry Mathews, American Foreign Relations 436 (1928) (describing same for agreements for United States superintendence of foreign country's debt payments to other foreign creditors); Barnett, supra note 329, at 68-70 (describing same for postal conventions and reciprocal tariff agreements); Moore, supra note 20, at 393 (describing alternative use of both forms for postal conventions).
387. One might so argue, but as we shall see, Professor Tribe does not. See infra note 366 and accompanying text.
388. The Fourth Circuit so held in United States v. Guy W. Capps, Inc., 204 F.2d 655, 660 (4th Cir. 1953), aff'd on other grounds, 348 U.S. 296 (1955). See Congressional Research Serv., Treaties, supra note 329, at 65-68 (affirming this view); Tribe, Constitutional Law, supra note 11, § 4-5, at 229 (noting that "[a]t a minimum, it seems clear that [a unilateral] executive agreement, unlike a treaty, cannot override a prior act of Congress"). The Restatement concurs, although with nuances. See Restatement, supra note 9, § 115 cmt. c & reporters' note 5 (affirming same but noting possible exceptions). Professor Henkin, however, is less certain. See Henkin, supra note 9, at 228 (suggesting that same arguments as to why treaties supersede earlier statutes also apply to executive agreements).
389. Consider also the perverse result of this view: When the Senate approves an important agreement, it can override any prior law even without the participation of the House. But when it gives its advice and consent to an unimportant agreement, its powers run out, and the President will have to obtain the House's consent to repeal any conflicting laws. This obviously reverses the intuitive notion. Nor is it an answer to suggest that any agreement inconsistent with prior law is automatically a "treaty" under Article II. Defining the difference between "treaties" and "agreements" in this way finds no support in the eighteenth century international practice from which, in Professor Tribe's view, the Framers were drawing. Professor Tribe himself interprets the point of difference as resting on the significance and extent of an agreement's impact on the nation's sovereignty. See supra text accompanying notes 334-36; supra note 161; infra note 376. Others have looked to an entirely different distinction found in Vattel, of which the Framers might have been aware. See supra note 329; infra note 361 and accompanying text. Either way, the crucial point has nothing to do with the agreement's relationship to preexisting law. This is not to suggest that a different view might not be plausible if one assumes - as I do - that the source of the President's unilateral authority resides in the implied powers doctrine. But if
390. Moore, supra note 20, at 388. Nor can this be explained by the invariably important nature of the agreements presidents have referred to the Senate Foreign Relations Committee. Notoriously, presidents have sometimes opted for the arguably insulting practice of sending extremely trivial "treaties" to the Senate, while purporting to conclude rather hefty "agreements" on their own authority. See, e.g., S. Rep. No. 91-129, at 28 (1969) (noting that in some instances "we have come close to reversing the traditional distinction between the treaty as the instrument of a major commitment and the executive agreement as the instrument of a minor one"). Indeed, Senator Robert Taft complained over 50 years ago: "As a matter of fact, no treaties of any importance have been submitted to the Senate since I have been a Member of the body." 88 Cong. Rec. 9276 (1942) (remarks of Sen. Taft); see also 115 Cong. Rec. 16750 (1969) (remarks of Sen. Church) (echoing Sen. Taft's comment). There are a number of other legal differences between treaties and unilateral agreements that would also have been relevant. For example, although it is generally assumed that the President can modify a treaty only by obtaining the consent of the Senate, the same would not apply to a unilateral agreement. See Congressional Research Serv., Treaties, supra note 329, at 140-46 (concluding that modifications of unilateral executive agreements are solely matter of presidential discretion). Thus, were the response suggested in the text correct, the President would be free to modify unilaterally agreements approved by the Senate if he could demonstrate that they did not in fact rise to the level of a genuine treaty. Likewise, the Senate may make reservations to treaties which are binding on the President if he ratifies the agreement. See id. at 96-100 (describing practice). Presumably, under the postulated response, the President could disregard the Senate's reservations even after he had ratified an agreement if the agreement had not in fact reached the treaty threshold. There are similar concerns over the vexed problem of treaty interpretation. The President may be limited in the extent to which he can reinterpret a treaty in a manner inconsistent with the understanding of the Senate when it gave its consent. See id. at 93-96 (discussing treaty interpretation controversies). Would this limitation apply to an agreement consented to by the Senate but which did not really warrant the appellation "treaty"? Apparently not, on the postulated view. Yet, all of these are important matters which would have surely drawn attention had anyone doubted that Senate approval ipso facto made an agreement an Article II treaty.
391. Chief Justice Marshall noted that in construing the Constitution "the same words have not necessarily the same meaning attached to them, when found in different parts of the same instrument; their meaning is controlled by the context." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 19 (1831).
392. Some have thought that the Framers borrowed the distinction between treaties and agreements or compacts from Vattel. See, e.g., United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 462 n.12 (1978) (discussing Vattel's views in decision on Compact Clause); Abraham C. Weinfeld, What Did the Framers of the Federal Constitution Mean by "Agreements or Compacts"?, 3 U. Chi. L. Rev. 453, 457-60 (1936) (arguing that Framers had Vattel in mind in drafting Compact Clause). Vattel distinguished between "treaties" and "agreements, conventions, and arrangements": The former are perpetual or of considerable duration and call for "a continuous performance of acts," whereas the latter are perfected in a single act "once for all." 3 Vattel, supra note 257, bk. 2, ch. 12, §§ 152-153. But Vattel himself recognized that "agreements, conventions, and arrangements" (which Weinfeld identified with the Constitution's "agreements and compacts," see Weinfeld, supra, at 460) were simply forms of the general category "treaties." Thus, in a later section, he stated: Treaties which do not call for continuous acts, but are fulfilled by a single act, and are thus executed once for all, those treaties, unless indeed we prefer to give them another name (see § 153) [defining agreements, conventions, and arrangements], those conventions, those compacts, which are executed by an act done once for all . . . are, when once carried out, fully and definitely consummated. Id. bk. 2, ch. 12, § 192, at 172. It is worth noting that Vattel's distinction, even were it the source for the Framers' text, proved unworkable immediately and has never been reflected in actual practice. See 3 Story, supra note 202, § 1396 (rejecting George Tucker's earlier endorsement of (significantly) modified version of Vattel's distinction as "at best a very loose, and unsatisfactory exposition"). Those who have relied on it to distinguish between important and unimportant agreements have always been embarrassed by Vattel's failure to draw that as the point of difference. See Congressional Oversight of Executive Agreements, 1975: Hearings on S. 632 and S. 1251 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 94th Cong. 392 (1975) (reprinting memorandum by Monroe Leigh, Legal Adviser, Dep't of State, which noted that "Vattel's distinction has nothing to do with 'important' or 'unimportant'").
393. The Framers had important structural reasons to adopt their formulation. Section 10 actually includes three paragraphs. See U.S. Const. art. I, § 10, cls. 1, 2, 3. The prohibition on treaty-making appears in the first along with a list of other powers denied the states; the permissive rule for agreements and compacts, in contrast, appears in the third along with other powers that can be exercised only with congressional consent. This grouping served to clarify and emphasize that certain powers (those listed in the first paragraph) were absolutely prohibited to the states but that others (those listed in the second and third) could be exercised with leave of Congress. See Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 571 (1840) (opinion of Taney, C.J.) (affirming distinction); 3 Story, supra note 202, § 1396, at 270 (same); supra notes 218-19 and accompanying text (discussing same). Hence, the Framers were impelled to separate the treatment of state treaties and agreements by drafting imperatives that ruled out the more simple language I have suggested, but their drafting choice provides no compelling reason for doubting that my construction accurately corresponds with their intent.
394. 3 Story, supra note 202, § 1397, at 271.
395. 3 id. § 1397, at 272. These dealt with "questions of boundary; interests in land, situate in the territory of each other; and other internal regulations for the mutual comfort, and convenience of states, bordering on each other." Id. Indeed, because of his sense that the term "treaty" was properly a general category, Justice Story was tempted to conjecture that "the original reading was 'treaties of alliance, or confederation.'" Id. at 271 n.2. He quite properly recognized, however, that this specific explanation was ruled out by the drafting history. See id. (concluding that corresponding provision of articles of confederation undermines this conjecture).
396. Nor is Chief Justice Taney's opinion in Holmes to the contrary; indeed, it supports the traditional view. Taney emphasized the parallel between the use of the term "treaty" in Articles I and II, not to demonstrate that the term had a limited meaning in Article II, but to emphasize the comprehensiveness with which states were denied independent agreement-making powers. See Holmes, 39 U.S. (14 Pet.) at 571-72 (opinion of Taney, C.J.). Indeed, he repeatedly stressed the sweeping scope of the treaty power in Article II, noting that it "is given by the Constitution in general terms, without any description of the objects intended to be embraced by it; and, consequently, it was designed to include all those subjects, which in the ordinary intercourse of nations had usually been made subjects of negotiation and treaty." Id. at 569. He also repeatedly emphasized that the power to make extradition agreements was both within the treaty power and could properly be the subject of a state agreement or compact if approved by Congress under the Compact Clause. See id. at 568-69, 573-76. He must, then, have rejected Professor Tribe's view.
397. Tribe, Taking Text, supra note 3, at 1272 n.175.
398. See U.S. Const. art. III , § 2, cl. 1.
399. See id. art. VI, cl. 2.
400. 224 U.S. 583 (1912).
401. Id. at 600-01.
402. See Restatement, supra note 9, § 111 cmt. e & reporters' note 4 (adopting this view); cf. Weinberger v. Rossi, 456 U.S. 25, 28-31 (1982) (construing term "treaty" in statute prohibiting discrimination unless permitted by treaty to include congressional-executive agreements).
403. See Restatement, supra note 9, § 111 cmt. d & reporters' note 2 (suggesting this view). In United States v. Belmont, 301 U.S. 324, 331 (1937), Justice Sutherland held that sole executive agreements are supreme over state law but did not expressly rest on language in the Supremacy Clause. But, as the Restatement recognizes, "[t]he same result might be reached under the Supremacy Clause by giving the same broad interpretation to the words 'treaties' and 'laws' that has been adopted for purposes of judicial power and jurisdiction." Restatement, supra note 9, § 111 reporters' note 2.
404. If, alternatively, one were to take the view that executive agreements are within the judicial power and are supreme law of the land not because they are "treaties," but because they are "laws," it would do more harm than benefit to Professor Tribe's position. This view would remove one unnecessary argument against his interpretation of the term "treaty" but would simultaneously seriously undermine his Necessary and Proper Clause argument. If executive agreements are "laws" under the Supremacy Clause, then surely a resolution approving an executive agreement would be a "law" under the Necessary and Proper Clause. See supra Part III.B.1; supra note 243. This is not to suggest that Professor Tribe's Necessary and Proper Clause argument is, in any case, plausible. On the other hand, one might join with Justice Sutherland and suppose that the foreign affairs powers are extratextual and that unilateral agreements are supreme law of the land and within the federal judicial power simply because of the nation's status as a sovereign under international law. However, it is difficult to imagine that Professor Tribe would wish to opt for this path, while simultaneously defending his strictly textualist approach to the Treaty Clause. If the text can be radically supplemented in this way, there would be little reason - or justification - for standing on textual formalities in opposing Congress's powers to approve agreements.
405. See Tribe, Taking Text, supra note 3, at 1266 & n.154.
406. See, e.g., Henkin, supra note 9, at 152-53 (affirming this view); 3 Story, supra note 202, § 1397 (same). In fact, there have been very few actual state agreements with foreign nations, and these have been confined to matters of local interest, mostly necessitated by common borders. See Henkin, supra note 9, at 153 (describing some of agreements approved by Congress). Chief Justice Taney's opinion in Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840), is emphatic in suggesting the limited role of the states in foreign negotiations. See id. at 572-75 (opinion of Taney, C.J.) (declaring that state involvement would be "totally contradictory and repugnant" to constitutional plan). Some have thought, however, that the validity of state agreements is controlled by purely political considerations within the discretion of Congress and that the courts are to stand aloof. See, e.g., Henkin, supra note 9, at 153 (noting that "[i]t would be difficult to believe . . . the courts would invalidate . . . [a state] agreement to which Congress consented"). The classic argument to this effect, although focusing on interstate compacts, rather than compacts with foreign states, is in Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution - A Study in Interstate Adjustments, 34 Yale L.J. 685, 707-08 (1925) ("[M]ost questions of interstate concern are beyond the jurisdiction of the Supreme Court; they are beyond all court relief. Legislation is the answer. . . ."). It is worth noting that despite the Compact Clause's unconditional requirement of congressional consent for state agreements and compacts, the Supreme Court has permitted states to enter agreements without congressional approval so long as these do not tend "to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States." Virginia v. Tennessee, 148 U.S. 503, 519 (1893); see also United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 468-71 (1978) (reaffirming this view). This should be another warning against rigid interpretive presumptions of the kind on which Professor Tribe relies.
407. Holmes at least implicitly supports this conclusion, though in a way that underscores the narrowness of the early understandings of the President's unilateral authority. Thus, in his opinion, Chief Justice Taney repeatedly affirmed the traditional understanding that the President has no power to extradite a person to a foreign nation in the absence of a treaty or an act of Congress. See Holmes, 39 U.S. (14 Pet.) at 574 (opinion of Taney, C.J.). But he equally affirmed the power of the states to do so by compact if they obtain the consent of Congress. See id. at 578-79. He thus saw no parallel. Still another objection to Professor Tribe's view is implicit in what has already been said: His effort to locate the President's unilateral authority in an unenumerated power to make agreements simply fails the tests of history and of text. The President enters into unilateral agreements, it has been widely understood, not from a general agreementmaking authority, but as an incident of his substantive powers. See supra note 329 and accompanying text. Thus, contrary to Professor Tribe's assertion, we cannot determine the validity of a presidential agreement solely by reference to the level of its impact on state or national sovereignty (on the supposition that this reflects the difference between "agreements" and "treaties"). We must first determine whether the agreement is sufficiently related to an aim within the President's substantive powers. During the first 150 years of our history, those powers were understood far more narrowly than today; as a consequence, the scope of the President's unilateral powers was extremely modest. Curtiss-Wright, Belmont, and Pink, however, mark the beginnings of an enormous expansion in the conception of independent presidential authority in foreign affairs. See United States v. Pink, 315 U.S. 203, 228-30 (1942) (upholding Litvinov Assignment); United States v. Belmont, 301 U.S. 324, 330-31 (1937) (same); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318-21 (1936) (reciting expansive dicta on President's foreign affairs powers). The resulting dilemma is stark: Unless we are prepared to render the Treaty Clause a virtual nullity, there must be limits on the President's sole authority, but, given his plenary powers, how to derive those limits is not clear. See Henkin, supra note 9, at 222 (observing plaintively that "[o]ne is compelled to conclude that there are agreements which the President can make on his sole authority and others which he can make only with the consent of the Senate (or of both houses), but neither Justice Sutherland nor any one else has told us which are which" (footnotes omitted)). Ironically, then, in order to preserve the core value expressed in the Treaty Clause, we may have no choice but to fall back on a Tribe-like notion that there are some agreements that are simply too important to be concluded by the President alone. (This is not to suggest, though, that Professor Tribe is the first commentator to suggest the idea. See, e.g., Edwin Borchard, Shall the Executive Agreement Replace the Treaty?, 53 Yale L.J. 664, 669-70 (1944) (arguing that executive agreements are appropriate only for routine or unimportant matters).) Our interpretive options would be much broader, of course, were we to reject Professor Tribe's textualism and look to history for appropriate limits on the President's unilateral powers. Finally, although I do not have space to consider it here, Professor Tribe's effort to define the dividing line between agreements and treaties is unsatisfactory. See Tribe, Taking Text, supra note 3, at 1266-68 & 1267 n.156 (suggesting that treaty status is ultimately determined by agreement's impact on state or national sovereignty, and arguing that burden WTO Agreement's dispute resolution mechanism imposes on state sovereignty renders it a treaty). Most importantly, his focus on dispute resolution procedures is misguided. Not only were these often included in unilateral agreements, even in the nineteenth century, see Moore, supra note 20, at 408-17 (describing nineteenth century claims settlements including arbitration provisions), there is nothing inherent in the inclusion of such a provision that renders an agreement ipso facto beyond the President's unilateral authority. That view overlooks the entire corpus of the international law of treaties and of state responsibility, which not only makes treaties binding but provides remedies for their breach. See, e.g., Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, arts. 60, 65-66, 1155 U.N.T.S. 331, 346-48 (providing, inter alia, for suspension or termination of treaties in response to material breach); Draft Articles on State Responsibility, arts. 41-46, Report of International Law Commission, U.N. GAOR, 51st Sess., Supp. No. 10, at 125, 141-43, U.N. Doc.
408. See, e.g., Borchard, supra note 376, at 667-70 (articulating argument based on Compact Clause); Richard Cohen, Self-Executing Executive Agreements: A Separation of Powers Problem, 24 Buff. L. Rev. 137, 139-40 (1974) (same).
409. This version presumes, for example, that the Executive Power Clause is a general grant of all powers that are executive in character, that there is an undifferentiated presidential agreement-making power, that the powers of the states and the President derive from the same source and are roughly parallel, and that agreement-making is an executive function. The flaws in these arguments have already been demonstrated. As to the last, it may be added that it is extremely difficult to see why we should disregard the Framers' express preference for congressional supervision over agreement-making in the state context when moving into the non-text-based, parallel federal agreement-making power. This, of course, seriously undermines the argument for executive unilateralism. Even were we to avoid this problem by recognizing a congressional rather than presidential power to approve "agreements," however, this would simply introduce a new difficulty. It would necessarily mean that approving some agreements falls within the Necessary and Proper Clause. In that case, Professor Tribe's claim that the term "laws" does not include resolutions approving international agreements, whatever force it would otherwise have had, could not be sustained. See supra Part III.B.1; supra note 243. Moreover, if the Compact Clause suggests that the Framers must have assumed that Congress could approve presidential "agreements," then their failure to specify such a power in Article I, Section 8 suggests, in turn, that they assumed it was already within the Necessary and Proper Clause. That clause, however, does not distinguish between "agreements" and "treaties" and thereby creates a strong inference that the distinction does not apply to Congress's implied powers to approve federal commitments. It would be an interpretive leap of faith to find implicit limits on Congress's implied powers in a provision affirmatively giving Congress supervisory authority over state agreement-making. Thus, the more persuasive version of the argument from the Compact Clause leads right back to the modern congressionalexecutive agreement. Professor Tribe professes to find this argument "astonishing." Tribe, Taking Text, supra note 3, at 1272. In particular, he takes us to task for concluding that "we do not see how the words of the Compact Clause - designed for a very different problem - are relevant in determining the scope of congressional power under Article I[, Section 8]." Ackerman & Golove, supra note 5, at 921 n.514 (emphasis added), quoted in Tribe, Taking Text, supra note 3, at 1271. Once again, of course, we made this point in response to Professor Tribe's then view that some agreements could be approved by Congress but others were beyond the scope of its authority. Although he finds the argument "astonishing," he seems to have drastically revised his view just to avoid its force. What else can explain the vigor with which he denies Congress any authority to approve presidential agreements, even those which it could approve if negotiated by the states - even though he concedes that under his reading the Framers' scheme presents "a puzzle." Tribe, Taking Text, supra note 3, at 1271 n.172. He never seems to contemplate the possibility that this puzzle provides a reason for further reflection on whether the interpretation he insists upon might require revision, or at least be less compelling than he had at first thought.
410. Indeed, the most persuasive inference as to why the Framers assigned supervision of state agreements to the Congress rather than to two-thirds of the Senate is not that they wished to provide a less burdensome procedure for minor agreements. On the contrary, it is that they thought the House's participation in this class of essentially local agreements did not pose the same threat to the interests in secrecy, dispatch, and long-term perspective that might apply to agreements affecting the nation as a whole. When these considerations did not require otherwise, the Framers were content to let the national legislature play its ordinary role. This, in turn, suggests that they had no aversion to House participation in approving agreements so long as the threats about which they were concerned were not present. And this is precisely what the congressional-executive agreement permits: When the President does not believe that House participation threatens these important interests, he may seek the approval of Congress as a whole rather than the approval of one House by supermajority vote. For further discussion, see supra notes 68-75, 186, and accompanying text. Furthermore, the fact that the Framers assigned the supervisory role to Congress rather than the President is yet further evidence that they viewed approving agreements as a legislative not an executive task. See supra notes 247-62 and accompanying text.
411. Professor Tribe might also have tried a functionalist line of argument. He might have conceded, for example, that the Treaty Clause cannot be exclusive and that the unilateral executive agreement is justifiable only as an implied power of the President incident to his executive authority. He might have further conceded that presidential agreements are a derogation from the protections afforded state interests by the Treaty Clause. Still, citing the sole organ power, he could have claimed that they are justifiable because the Constitution vests control over the conduct of foreign affairs in the President. In the external realm, he might have argued, were the President not accorded some flexibility in concluding agreements unilaterally, our foreign relations would be hamstrung. The President is on the front-line, but Congress, as important as its foreign affairs powers are, has a mostly supervisory role. Thus, according to this view, its powers do not require the kind of flexibility essential to executive efforts, nor justify the significant infringement of federalism interests that recognizing the congressional-executive agreement would require. To be sure, given the historical evidence about the Framers' actual purposes in adopting the Treaty Clause, this argument may give a reasonable account of what they might have had in mind. However, it is critical to recognize that its plausibility, if any, is almost entirely parasitic on history. As a matter of purely textual exegesis, it rests on extravagant inferences from the President's already textually problematic sole organ power. See supra notes 309-18 and accompanying text. Moreover, it overrides both the strong expressio unius inference and the federalism arguments against presidential unilateralism, see supra notes 326-29 and accompanying text, on the basis of speculative functionalist considerations that the Framers, for whatever reasons, did not incorporate into the text. In this respect, it is even weaker than the Compact Clause argument. Given the lack of textual support for this view, then, it does little to advance Professor Tribe's textualist agenda. This just drives home the main point: The compulsion to find a textual basis to explain the unilateral agreement while ruling out the congressional-executive agreement is just that - a drive that is motivated not by textual imperatives but by a prior commitment to reaching a certain result. In any case, even were this functionalist account more textually compelling than I believe, it still would not aid Professor Tribe. At best, it would only demonstrate that the text is, as I have said all along, indeterminate.
412. Tribe, Taking Text, supra note 3, at 1275.
413. Id.
414. Id.
415. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174-75 (1803). The relevant clause of Article III provides: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. U.S. Const. art. III, § 2, cl. 2.
416. Marbury, 5 U.S. (1 Cranch) at 174.
417. See supra notes 83-87, 92-94, and accompanying text.
418. See supra notes 97-98. and accompanying text.
419. As the last Federalist stronghold after the Jeffersonian sweep in 1800, the Court was under intense political attack, and its institutional position was tenuous at best. By repealing the Judiciary Act of 1801, Congress had already unseated 16 sitting federal circuit court judges, and impeachment proceedings against another were under way. Congress had even delayed the Supreme Court's term for over a year in response to the Court's temerity in issuing an order to show cause to Secretary of State Madison. Under the circumstances, the Court had no choice but dismiss the suit or watch its order go unenforced and its institutional position crushed. For an engaging historical account emphasizing Marshall's role in the intense political controversies of the moment, see Bruce Ackerman, The Roots of Presidentialism 97-140 (1997)
420. (unpublished manuscript, on file with the New York University Law Review);
421. see also Dean Alfange, Jr., Marbury v. Madison and Original Understandings of Judicial Review: In Defense of Traditional Wisdom, 1993 Sup. Ct. Rev. 329, 349-72 (providing detailed historical account);
422. James M. O'Fallon, Marbury, 44 Stan. L. Rev. 219 (1992) (same). The parallels to the Court's position at the height of the New Deal crisis should be clear.
423. These features of the decision have been frequently remarked upon. See, e.g., Robert G. McCloskey, The American Supreme Court 25-28 (Sanford Levinson ed., 2d ed. 1994); Alfange, supra note 388, at 366-72, 380-83;
424. William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L.J. 1, 34-38.
425. See Alfange, supra note 388, at 392-93 (describing Marshall's role); Ackerman, supra note 388, at 74-75 (same); Van Alstyne, supra note 389, at 8 (same).
426. See Alfange, supra note 388, at 387-91 (discussing Marshall's agenda); Edward S. Corwin, Marbury v. Madison and the Doctrine of Judicial Review, 12 Mich. L. Rev. 538, 542-43 (1914) (same); Van Alstyne, supra note 389, at 6-8 (same). As Corwin characteristically put it: To speak quite frankly, this decision bears many of the earmarks of a deliberate partisan coup. The court was bent on reading the President a lecture on his legal and moral duty to recent Federalist appointees to judicial office . . . but at the same time hesitated to invite a snub by actually asserting jurisdiction of the matter. Corwin, supra, at 542-43.
427. See, e.g., Corwin, supra note 391, at 541-43 (arguing on this ground that Marshall misinterpreted Section 13); David P. Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U. Chi. L. Rev. 646, 653 (1982) (same); Van Alstyne, supra note 389, at 14-16 (same). Although Marshall read Section 13 to grant the Court original jurisdiction over mandamus actions, that section seems only to have authorized the Court to issue writs in cases otherwise properly within its jurisdiction.
428. See, e.g., Alfange, supra note 388, at 397-405 (arguing for nonexclusive reading of Original Jurisdiction Clause); Corwin, supra note 391, at 539-41 (same); Currie, supra note 392, at 653-55 (same); Van Alstyne, supra note 389, at 30-33 (same). Even Beveridge, Marshall's partisan biographer, viewed his reasoning as "a pretext" for establishing the power of judicial review, 3 Albert J. Beveridge, The Life of John Marshall 133 (1916), and considered Marshall's constitutional argumentation, in the face of the contrary view of the First Congress, to be, charitably, the "only original idea" in the opinion, id. at 128. "Nobody," Beveridge claimed, "ever had questioned the validity of that section," which had been written by "[Oliver] Ellsworth, who preceded Marshall as Chief Justice" and who "was one of the greatest lawyers of his time and an influential member of the Constitutional Convention." Id. Notwithstanding, there have been dissenting voices. See, e.g., Robert Lowry Clinton, Marbury v. Madison and Judicial Review 96-97 (1989) (defending version of Marshall's rationale);
429. Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443,463-78 (1989) (declining to rest on Marshall's reasoning but affirming his result).
430. See Alfange, supra note 388, at 403-05 (discussing relevant history); Susan Low Bloch & Maeva Marcus, John Marshall's Selective Use of History in Marbury v. Madison, 1986 Wis. L. Rev. 301, 326-33 (same); O'Fallon, supra note 388, at 256 (same). Bloch and Marcus in particular demonstrate how shoddily Marshall dealt with inconsistent precedents.
431. See Alfange, supra note 388, at 399-400 (criticizing Marshall's argument); Corwin, supra note 391, at 540 (same); Currie, supra note 392, at 654-55 (same); Van Alstyne, supra note 389, at 31-32 (same). As these scholars have pointed out, contrary to Marshall's rhetoric, allowing Congress to add to the Court's original jurisdiction would not have left the Original Jurisdiction Clause without operation. It could be read to specify a minimum but not a maximum, so that Congress could add to but not subtract from the constitutionally assigned categories of cases. Alternatively, the division between original and appellate jurisdiction could have been a default assignment subject to congressional revision. The particular wording of the sentence that specifies the Court's appellate jurisdiction poses some difficulties. See U.S. Const. art. III, § 2, cl. 2. Marshall read the affirmative reference to appellate jurisdiction as an implicit negating of the power to add to original jurisdiction. Here, again, though, alternative readings were available. See Alfange, supra note 388, at 398-99 (arguing that affirmative reference to appellate jurisdiction was made to provide context for granting Congress power to make exceptions to Court's appellate jurisdiction); Corwin, supra note 391, at 540-41 (arguing that Marshall need not have construed affirmative reference as limited to appellate jurisdiction, i.e., that Court's jurisdiction in these cases could be both appellate and original).
432. Tribe, Taking Text, supra note 3, at 1275.
433. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803); see also id. at 175 (repeating same).
434. 19 U.S. (6 Wheat.) 264 (1821).
435. See id. at 399-401. The need to disregard Marbury prompted Marshall to give a classic statement of the proper weight to be accorded dicta. See id. at 399-400.
436. See id. at 395-97.
437. Id. at 401.
438. Id. Scholars have noted the inconsistency. See, e.g., Alfange, supra note 388, at 400 (noting tension between Marbury and Cohens); Corwin, supra note 391, at 540-41 (arguing that Cohens "abandoned" reasoning of Marbury and left its "precise decision . . . hanging in mid-air"); Currie, supra note 392, at 654-55 (noting that "Marshall himself was to reject the implications of his Marbury reasoning in Cohens v. Virginia").
439. As with a number of other constitutional provisions discussed earlier, see supra notes 117-23, 131-34, 194-209, and accompanying text, it is instructive to note the various ways in which the Court has held that the Supreme Court Jurisdiction Clauses are nonexclusive. Cohens stands for the proposition that the Congress may confer on the Court appellate jurisdiction over cases falling within its original jurisdiction that may nevertheless have originated elsewhere. Thus, although assigned only original jurisdiction over certain cases, the Court is not exclusively limited to exercising that form of jurisdiction over them, and, despite the arguably contrary language in the Appellate Jurisdiction Clause, the cases described as within the Court's appellate jurisdiction are not an exclusive list. In Ames v. Kansas, 111 U.S. 449, 467-69 (1884), moreover, the Court extended this ruling to permit Congress to assign matters within the Court's original jurisdiction to the lower federal courts, and it was already understood that the states had concurrent jurisdiction in some cases. Thus, the assignment of original jurisdiction to the Court was not exclusive of other courts exercising original jurisdiction in the same cases. It is instructive as well to consider where the Court has found and where it has refused to find missing "only"s. Thus, while Marbury in effect found a missing "only" in one part of the Original Jurisdiction Clause ("Only in all Cases . . ., the Supreme Court shall have original Jurisdiction"), see Marbury, 5 U.S. (1 Cranch) at 174, the Ames Court refused to find a missing "only" in another portion of that clause ("In all Cases . . ., only the Supreme Court shall have original jurisdiction over . . ."), see Ames, 111 U.S. at 466-69, and the Cohens Court refused to find the Marbury "only" in a comparable part of the Appellate Jurisdiction Clause ("Only in all the other cases before mentioned, the Supreme Court shall have . . .") or in still another part of the Original Jurisdiction Clause ("In all Cases . . ., the Supreme Court shall only have original Jurisdiction . . ."), see Cohens, 19 U.S. (6 Wheat.) at 397-99. I mention the Court's highly contextualized treatment of missing "only"s because Professor Tribe makes a great deal of rhetorical hay out of our reliance on missing "only's" in the Treaty Clause and Professors Ackerman's and Amar's reliance on the same in Article V. See Tribe, Taking Text, supra note 3, at 1244-45 & 1245 n.77 (ridiculing "the search for absent 'only'"). He seems to think that the interpretive difficulties can be surmounted simply by always reading missing "only"s into the text. See id. (arguing for default assumption of exclusivity). However, as the Court's original jurisdiction jurisprudence demonstrates, this formulaic solution is out of step with the subtleties of constitutional interpretation as reflected in our constitutional tradition. Whether a missing "only" should be assumed will depend on context and a host of other factors. In any case, as should be apparent by now, I have studiously avoided any reliance on missing "only"s in the Treaty Clause in making the textual case for the congressional-executive agreement.
440. Perhaps, we can dub Professor Tribe's view "Marburyan," while Professor Ackerman and I retain the label "Marshallian." Admittedly, Professor Tribe's assent may not be forthcoming. Should first authorship not count for something?
441. The methodological questions such an enterprise would raise, however, are beyond the scope of this Article.
442. Ackerman & Golove, supra note 5, at 801.
443. See, e.g., Tribe, Taking Text, supra note 3, at 1233, 1288 (alleging Professor Ackerman takes "a disturbingly loose approach to descriptive and normative matters alike" and that our NAFTA article makes manifest "a significant threat to the whole enterprise of constitutional dialogue" that is implicit in Professor Ackerman's work).
444. Our claim is that the political events of 1943 through 1948 are best interpreted as a self-conscious movement to amend the Treaty Clause informally and validate the new congressional-executive agreement procedure. See Ackerman & Golove, supra note 5, at 861-96.
445. Tribe, Taking Text, supra note 3, at 1278; see also id. at 1279 (similar).
446. Id. at 1285; see also id. at 1280 (similar). For this point, Professor Tribe relies on a brief remark Professor Ackerman and I made in a letter to President Clinton regarding the WTO Agreement. See id. at 1280 (citing Letter from Bruce A. Ackerman, Professor, Yale Law School, and David M. Golove, Professor, University of Arizona College of Law, to President William J. Clinton 3 (Sept. 21, 1994) (on file with the New York University Law Review)). In context, however, it is clear that the argument was connected to our broader argument about the character of the political movement of 1945. In any case, no such argument appears in our article.
447. Tribe, Taking Text, supra note 3, at 1281.
448. I believe that the latter two of his arguments are not, in fact, persuasive. Longstanding practice is an important data point for constitutional interpretation, and the acquiescence of an affected branch, depending upon a number of contextual considerations, may in some cases be significant as well. Relevant in the latter case would be, inter alia, the degree of consensus among the members of the affected branch, the length of time that consensus holds, and whether the purpose of the constitutional provision is to assure political accountability precisely in the way the affected branch, by its acquiescence, is seeking to avoid. In these respects, among others, I reject Professor Tribe's strict textualism as well as other forms of originalism, but I cannot pursue these matters further here.
449. See 1 Ackerman, supra note 4, at 266-90 (elaborating criteria that must be met, in his view, to validate an informal amendment).
450. Professor Tribe also repeatedly chastises us for affirming the constitutionality of NAFTA without bothering to analyze its specific terms in any detail. This "reflects precisely the free-form character of what Professors Ackerman and Golove put forth as constitutional interpretation." Tribe, Taking Text, supra note 3, at 1227; see also id. at 1251-52, 1277-78 (repeating sharp criticism on this point). Of course, we did not closely analyze NAFTA's terms because our argument is that Congress may approve any international agreement falling within its substantive powers. Given Congress's power to regulate foreign commerce, it is quite evident, and no one has disputed, that NAFTA falls squarely within its substantive authority. This should not be surprising. It is frequently unnecessary to engage in a searching analysis of the terms of congressional legislation when the only question is whether it falls within the scope of one of Congress's enumerated powers. Ironically, Professor Tribe's position is closely parallel, but opposite to our own. Despite his derisive comments, he, too, eschews analyzing NAFTA's terms. See id. at 1277 (conceding as much). Indeed, for him it is unnecessary to determine even whether NAFTA is a regulation of foreign commerce. The only relevant fact is that Congress is without power to approve international agreements, that is, any international agreement. Professor Tribe also argues that our free-form arguments are merely a cover for our hostility to the states and that our real goal is to overturn "the Framers' vision of a Union of equal and sovereign states." Id. at 1230. I do not know Professor Ackerman's views on the continuing values of federalism and admit to some skepticism of my own about the value of the Framers' state-centered design in contemporary conditions. However, this is obviously entirely beside the point. Professor Ackerman's theory is, and must be, politically neutral in the sense that it states criteria for legitimate constitutional transformations that apply irrespective of the content of the proposed changes. Depending on events, then, we could move either further away from or back towards the Framers' initial vision, just as we could move back to an exclusivist view of the Senate's role in treaty-making. The policy arguments are irrelevant from this perspective. Professor Tribe displays an ignorance of the crucial history, moreover, when he claims that we think it was the "pig-headedness" of the states that obstructed the adoption of a formal amendment depriving the Senate of its special role. Id. at 1229. On the contrary, all accounts were that the states were more than prepared to approve the amendment proposed by the House. The problem was the Senate itself. See Ackerman & Golove, supra note 5, at 865 & n.297 (recounting Senate Judiciary Committee's determination to delay consideration of treaty amendment). Despite Professor Tribe's patriotic sentiments about the Senate's high-mindedness, observers at the time were extremely skeptical about whether it could be convinced to cooperate in the elimination of its own treasured prerogative. See id. (citing contemporary newspaper editorials). When in response to the House's amendment proposal the Senate Judiciary Committee cynically announced that it would not consider any amendments until after all the soldiers had returned home, the Washington Post declared: "[T]he Senate will have to be blasted out of its foxhole of entrenched power." Signal to the House, Wash. Post, Feb. 28, 1945, at 8.
451. See, e.g., Tribe, Taking Text, supra note 3, at 1233, 1241 (charging that Professor Ackerman's acceptance of an extratextual amendment procedure "has led him to treat all constitutional text and structure as casually as he treats Article V").
452. See id. at 1233, 1241 (stating that our interpretation of Treaty Clause is "[u]nsurprising[], and perhaps even predictabl[e]" in light of Professor Ackerman's theory of higher lawmaking).
453. See 2 Ackerman, supra note 4, at 71-88 (analyzing Article V with reference to history of Convention).
454. See infra notes 426-33 and accompanying text.
455. We noted the indeterminacy of the text only to make it easier for some to accept the implications of Professor Ackerman's theory of informal amendment. Our implicit claim was that at least when the text is ambiguous, a constitutional movement like that of 1945 justifies abandoning a long-settled construction of the text for a new reading that is itself a plausible construction of the relevant provisions. We likewise thought it might be easier for some to accept Professor Ackerman's view in this case because of the peculiar difficulties of amending the Treaty Clause under Article V, in which two-thirds of the Senate is given a privileged role in validating amendment proposals. See U.S. Const. art. V. Could two-thirds of that body ever be convinced to renounce through formal amendment the prerogative of one-third plus one of its members to veto treaties? See Ackerman & Golove, supra note 5, at 909 (noting dysfunctionality of Article V in this instance).
456. See Tribe, Taking Text, supra note 3, at 1296-99 (concluding that New Deal changes such as overturning of Lochner were just "the stuff of ordinary constitutional interpretation").
457. Professor Tribe does seem to recognize the possibly breathtaking implications of his view by suggesting that substantive due process, including not only the modern privacy doctrine, but the incorporation doctrine itself, might have to go! See id. at 1297 n.247 for one of the truly most remarkable footnotes in the history of legal scholarship. However, he comforts himself by thinking that much of what will be lost can be recovered through other means, such as reinterpretation of the Privileges and Immunities Clause and expansive readings of the prohibition on state bills of attainder. See id. At a minimum, this stunning turnabout seems to reflect a major concession to Professor Ackerman's main point - our traditional interpretive practices have justified the modern constitution only through "free-form" interpretive methods. Notwithstanding Professor Tribe's doubts, however, I take no position here on whether modern substantive due process jurisprudence can be justified using legitimate, non-Ackermanian interpretive techniques.
458. Id. at 1296. Professor Tribe does suggest in passing, but does not defend, the claim that the Court's modern jurisprudence is a return to the pre-1880s understanding of the Commerce Clause. See id. at 1295.
459. The same can be said of his explanation of modern substantive due process jurisprudence: The overturning of Lochner v. New York, 198 U.S. 45 (1905), see West Coast Hotel Co. v. Parrish, 300 U.S. 379, 398-400 (1937), did not require a constitutional amendment because it did not represent a rejection of substantive due process. See Tribe, Taking Text, supra note 3, at 1296-97 & 1296 n.246. The latter simply took another guise in Griswold v. Connecticut, 381 U.S. 479 (1965), where the Court replaced the discredited notion of economic liberty with the notion of privacy. See Tribe, Taking Text, supra note 3, at 1296-97 & 1296 n.246. Leaving aside the timing problems with this argument, it suggests that in Professor Tribe's interpretive world, if the Court limits itself to protecting new liberties and rejecting old ones, there will never be a need for an amendment. Here again, his striking formalism is self-evidently on display: Just as long as we retain the category of substantive due process, we are free to use free-form methods as we move from protecting the right to contract to the right to an abortion. Professor Tribe also applies the same expansive approach to the term "treaty" in the Treaty Clause, although he does so only rather softly. See id. at 1247 n.89 (noting "'treaty' . . . might have some evolutionary potential"). To appreciate his point, it is necessary to recall his argument that the Treaty Clause only applies to "treaties" and not to lesser "agreements," and that the President may conclude unilateral executive agreements only insofar as these are not covered by the Treaty Clause. See supra Part III.D.2. His concern is that the scope of the President's authority to make unilateral executive agreements (like the scope of Congress's powers under the Commerce Clause) has expanded enormously from its very modest beginnings in the late eighteenth century and throughout the nineteenth. To justify this development, he holds that the meaning of the term "treaty" in the Treaty Clause, rather than expanding as time has passed (as in the case of the term "commerce" in the Commerce Clause), has instead taken on a narrower and narrower meaning: Whereas originally it included virtually all agreements, now it includes only the more important among them, since otherwise presidents would regularly be engaged in violations of the Treaty Clause. I can perhaps be pardoned for suggesting that this argument is, to be charitable, textually disingenuous.
460. Many have made the point that Professor Ackerman's criteria for valid informal amendments may not be definite enough to provide a firm basis for determining when a constitutional movement has achieved its goal and that the advantages of textual amendments in this respect are of great significance. See, e.g., Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. Commentary 115, 122-40 (1994) (arguing that end of Reconstruction would qualify as constitutional moment legitimizing Jim Crow under Ackerman's criteria). This is an important objection and one which Professor Tribe seems to share. See Tribe, Taking Text, supra note 3, at 1286 & n.216 (endorsing McConnell's analysis). This is yet another way in which Professor Tribe believes that Professor Ackerman's theory promotes free-formism. The way Professor Tribe formulates the objection, however, is unconvincing. He thinks that only if amendments are strictly limited to those that are adopted in accordance with textual procedures can the Constitution meaningfully constrain governmental acts; otherwise, "the constraining power of text and structure is eroded almost to the vanishing point." Id. at 1280. On the contrary, however, there is nothing inherent in an extratextual procedure that undermines the Constitution's constraining power. Among other things, its constraining power depends upon the clarity of the accepted criteria for extratextual amendments, the scope of any ambiguities in the procedure for textual amendments, and the relative determinacy of the textual and nontextual amendments that are adopted. If the constitutional tradition in a polity permits extratextual amendments in accord with the one-time wishes of any person who can pull Excalibur out of a rock, it might have a perfectly determinate constitution, so long as its King Arthur rendered only relatively clear constitutional edicts. In contrast, if a polity that restricted amendments to those adopted in accordance with a clearly specified textual procedure adopted amendments incorporating broadly abstract commands such as "no person shall be deprived of liberty or property without due process of the law," the constitutional text might be quite indeterminate, and unless it could be made determinate through an agreed upon procedure, its constraining power might well be nil. Notwithstanding Professor Tribe's way of putting the point, however, it is true that the real question is whether the historical and normative resources from which Professor Ackerman draws are adequate to provide definite criteria that can meet the general objection. Otherwise, his particular theory of extratextual amendment will founder on the shoals of vagueness and may tell us only then that nothing succeeds like success. I cannot attempt here to address this larger problem.
461. See Tribe, Taking Text, supra note 3, at 1286-88.
462. See id. at 1290-92.
463. See id. at 1292-94.
464. See Dworkin, Freedom's Law, supra note 2, at 11 (arguing judges should seek morally best conception of constitutional principles that still fits historical record); Dworkin, Law's Empire, supra note 2, at 62 (arguing that we should seek interpretation that makes artistic work or social practice or structure "the best it can be" consistent with constraints of history).
465. See H.L.A. Hart, The Concept of Law 97-114 (1961) (articulating his famous positivist theory of law);
466. see also Frederick Schauer, Amending the Presuppositions of a Constitution, in Responding to Imperfection, supra note 17, at 145, 149-52 (endorsing Hart's view).
467. Perhaps, too, his project is an effort to explain why those who may wish to undo important parts of the New Deal and post-War constitutional orders cannot base their arguments on fidelity to some long-accepted tradition. They are involved in a political effort either to amend the fundamental law or to alter our rule of recognition itself. Textual fidelity is not a politically neutral interpretive methodology inherent in our constitutional tradition.
468. See Tribe, Taking Text, supra note 3, at 1291-92 & 1291 n.227 (taking exception to claim "that the text of the Constitution is rightly seen as itself allowing alternative modes of amendment . . . as a matter of constitutional law"); see also Schauer, supra note 429, at 147 (reading Professor Ackerman as making only an endogenous argument for nonexclusivity of amendment process). Professor Tribe's narrow objections to Professor Ackerman's internal arguments seem implicitly to endorse the validity of his exogenous claims. But this would seem to undermine seriously Tribe's position. Whatever conceptual differences there may be between the endogenous and the exogenous views, they do not matter much from the perspective underlying Professor Tribe's objections. Thus, even were Professor Tribe right that Professor Ackerman can rely only on the exogenous argument, the implications of the latter's views would be the same: The Constitution can be and has been amended outside the formal requirements of Article V. It makes no difference in the final analysis whether these "amendments" are technically valid "as a matter of constitutional law" or only are treated as such by the relevant public officials in accordance with our ultimate rule of recognition. Either way, the Constitution has been informally amended and those amendments are as binding on the courts and the political branches as if they had been adopted in accordance with Article V. It is particularly odd, then, that Professor Tribe self-consciously aligns himself with Professor Schauer in this respect. See Tribe, Taking Text, supra note 3, at 1291 n.227 (endorsing Schauer). Professor Schauer is quite explicit in holding that the Constitution can be amended outside the requirements of Article V if our rule of recognition allows it to be, see Schauer, supra note 429, at 156-57, and that as a descriptive matter this is almost certainly the case, see id. at 156-58 (noting that exclusive amendment procedure is "almost certainly not the American approach" and stating that descriptively his view "is that the American legal and constitutional culture treats the procedures of Article V as presumptively but not conclusively constraining"); see also Kent Greenawalt, The Rule of Recognition and the Constitution, 85 Mich. L. Rev. 621 (1987) (expressing view similar to Professor Schauer's). If the congressional-executive agreement is valid m accordance with our rule of recognition, then precisely what is Professor Tribe saying when he brands it unconstitutional? Is it unconstitutional but valid and binding on the courts and political branches? If so, it would certainly have been helpful had he said so.
469. In this respect, United States v. Lopez, 514 U.S. 549 (1995), seems like a rather weak shift in direction, not a promise of a wholesale repudiation of the New Deal Commerce Clause jurisprudence. See id. (striking down statute that prohibited carrying firearms in areas near schools as beyond Congress's powers under Commerce Clause).
470. See supra notes 42-44 and accompanying text. The Senate approved the WTO Agreement as a congressional-executive agreement despite Professor Tribe's ominous warning that doing so would effectively make it impossible for it to reassert its authority in the future. See GATT Hearings, supra note 41, at 301-02, 311 (testimony of Laurence H. Tribe, Professor, Harvard Law School) (admonishing Senate that adoption of GATT "outside the strictures of the Treaty Clause could spell doom for the continued viability of the Treaty Clause itself").
471. See Tribe, Taking Text, supra note 3, at 1284-85.
472. See id. at 1285, 1301.
473. See id. at 1284 n.210.
474. See Ackerman & Golove, supra note 5, at 861-96 (detailing pertinent history).
475. For assessments of the popular support for an amendment, see id. at 862-64. For an account of the Senate's retreat, see id. at 889-96.
476. 312 U.S. 100 (1941) (upholding Fair Labor Standards Act as valid exercise of commerce power).
477. 317 U.S. 111 (1942) (upholding Agricultural Adjustment Act as valid exercise of commerce power).
478. 315 U.S. 203 (1942) (expanding scope of President's independent foreign affairs authority by upholding Litvinov Assignment). For a discussion of the impact of Pink and other decisions on the President's foreign affairs powers, see supra note 376.
479. See 1 Ackerman, supra note 4, at 285-88 (arguing that crucial requirement for validating informal amendment is deliberative character of support for change in constitutional practice). In fact, if there is a concern about 1945 it should be the degree to which the public might have been misled about the nature of the change they were being asked to endorse.
480. See 1 id. at 167-79 (reviewing Federalist Papers on point); 2 id. at 49-65 (reviewing history of Convention and contemporaneous events).
481. See 2 id. at 99-252 (reviewing history of Reconstruction).
482. See 2 id. at 255-382 (reviewing history of New Deal).
483. For an account of the constitutional controversy over the Charter and the war powers, see Jane E. Stromseth, Rethinking War Powers: Congress, the President, and the United Nations, 81 Geo. L.J. 597 (1993).
484. This is a kind of "reflective equilibrium" argument. See John Rawls, A Theory of Justice 19-21 (1971) (articulating role of reflective equilibrium in normative political-economic theory).
485. See Tribe, Choices, supra note 39, at 3-6: Even if we could settle on firm constitutional postulates, we would remain inescapably subjective in the application of those postulates to particular problems and issues. . . . Anyone who insists, for instance, that "fidelity to text" must be the core commitment of a constitutionalist must confront the indeterminacy of text and must justify giving to one or another vision of language such binding force over our lives.
486. See, e.g., United States v. Lopez, 514 U.S. 549, 584, 601 (1995) (Thomas, J., concurring) (stating that Court should "temper" its Commerce Clause jurisprudence in future and return to "the original understanding of that Clause").
487. See supra notes 420-23 and accompanying text.