Thursday, February 02, 2017

The 45th Presidency and Multilateral Treaties--Fear, Loathing and a Repudiation of 20th Century Americanism

(Pix © Larry Catá Backer 217)

Many people have taken an interest in the quite systematic efforts of the 45th Presidency to remake the nation in its own image during its first 100 days. That impulse is not unknown in American politics--the American species of cults of personality around its presidents tends to create incentive for each to claim some sort of mandate that can be translated into some form of signature approach to whatever it is that serves their interest--and perhaps in some ways that of the state.

In recent years that first-100-days-cult-of-personality impulse has produced ever more screechy efforts of one presidency to undo the "trademark" features of its predecessor, especially of that predecessor was of the losing political party. And so this 45th Presidency has been quite busiy veru noisily proving to itself, and to others, that it indeed is making good on its promise to obliterate the the signature programs abd approaches of the 44th presidency.

But this 45th presidency appears to have even greater ambitions in constructing that office ih his own image--and those of his friends--all of course for the sake of the nation. This presidency appears bent on obliterating the densely layered principles that have guided the American presidency from the time that the United States, as leader of the allies victorious against the barbarism of an out-of-control excess of sovereign rights in Germany and an out-of-control militarism in Japan, sought to craft a new world order grounded in sound conservative American values of markets, individual liberty and a community of shared values under the leadership of the United States. It appears, though, that this may be too great a burden for the 45th Presidency to bear--who appears, in the name of restoring the United States to some position it held in the recent past, would obliterate the foundations of that past to achieve it. But that is politics and to the extent that the American polity embraces these strategies then, for good or ill, the Republic will be set on a course perhaps regrettable but certainly legitimate.

That radical revision, one undertaken the name of good old fashioned conservative values but which revalues them beyond recognition, is quite apparent in one of the early Presidential Executive Orders that has not garnered much attention among intellectuals--either those who find merit in this project of the 45th Presidency or those who view it with varying degrees of horror. That executive order, still in draft form at the time of this writing--Moratorium on New Treaties --is the subject of this post.

What follows is an annotated analysis of the Executive Order in which I seek to derive meaning from its very carefully selected words. As a whole, the Executive Order provides a quite clear window on both the principles, assumptions and objectives of the 45th Presidency in its relations to the world and, more importantly in its sense of the utter vulnerability of what one once might have thought of as the strongest and most powerful nation on earth before the onslaught of globalized societal forces memorialized in legalized text. It is to the extent that the 45th Presidency abandons conservative principles in the embrace of a radical fear and loathing of such legalization before which the 45th Presidency feels utterly vulnerable to its blandishments, that is the way that, in a fairly radical way, the 45th Presidency invests international agreements with legal effect (that can only be resisted by retreating form it least one be corrupted in some fashion), that will be the central element of the examination that follows.

Whether or not ultimately adopted and issued, and whether or not adopted and issued in its current form, the draft Moratorium on New Multilateral Treaties (DMMT) provides a quite frank and transparent vision of those who, within the 45th Presidency, will drive overseas policies and politics of that presidency. To that extent, it is worth careful study—indeed a study of its text in the way that a good student of semiotics or an ideological textualist jurist might attempt can extract the quite sophisticated vision of the future course of the engagement of the United States with the world around it that this text announces. For make no mistake, whether adopted or not, the text itself reveals both the sophistication, maturity and ideological aggression at the base of the thinking of that cluster of individuals that produce the outward manifestations of this presidency. That is not to suggest a judgment of that vision, other than that it is neither conservative in the classical sense, nor otherwise connected with anything close to the parameters of conventional discourse of those who guided the politics of this Republic, conventionally conservative or liberal that is, at least since 1945.

The first sentence of the Explanatory Statement that opens the DMMT nicely lays out the new vision without apology and as easily as it signals its contempt for the contemporary framework of discourse.
“In recent decades, there has been a proliferation of multilateral treaties the purport to regulate activities that are domestic in nature.”
That sentence says it all. The first clause signals the object that is being challenged, the very basis of the construction of tightly networked and comprehensive systems of global rules that set the playing field for state engagement in globalization, itself the product of “decades” of work. Within that temporal description lies notice of a challenge not merely the more “liberal” aspects of the project that is about to be interrogated, but also its most conservative—for it sweeps within what is to follow both the liberali8sm of the 44th and 42nd presidencies, but those of the great contemporary Republican presidents as well—from Eisenhower through Ronald Reagan. And thus the object of the DMMT—the challenge to the construction of the global order since 1945. Those efforts at global order have produced the product that is itself the specific object that is the target, “a proliferation of multilateral treaties”. Not just any multilateral treaties, but specifically those that that are, in the view of the drafters of the DMMT illegitimate ab initio, that have no legitimacy within the domestic legal orders of the U.S. or likely that of any other legalized space, that is those that “purport” to develop consensus that touch on the regulation of “activities that are domestic in nature.

The opening sentence, then, has three objects. The first is to give notice that the entire project of globalized regulation beyond a narrow scope is the object of challenge. The second is focus on the particular legalized expression of that decades long project that is to be challenged (the multilateral treaty). The third is to develop the new parameters within which it will be possible, going forward, to engage in a discourse of multilateral treaty engagement, one founded on a strict division between activities that are domestic in nature and the rest. The text of the sentence, of course, is vague enough to fill its text with such meaning as the political strength of its proponents is capable of producing facts on the ground. That distinction, between multilateral and bilateral treaties, between an unspecified illegitimate decades long discourse and that going forward, and between activities that are domestic in nature and those that are not, produce an easy set of ideological binaries that feed into cultural perceptions of the division of nature (and things in nature) as intuitively binary in nature. And this despite well over a century of jurisprudence that, at every turn, has produced utter failure every time such simple binary constructs are legalized.

But that is not the point—indeed, the point is far more subtle—the construction of systems grounded in such binaries opens a great space for the exercise of administrative discretion. It is a means of augmenting and channeling power rather than one of providing clarity. The simplicity of the division between one thing and another merely produces conditions in which power is shifted to those with the authority to make these categorical determinations. In the case of the foreign relations of the United States, what is produces is an ideological construct around the legal authority of the President, unaided, to make and operationalize these discretionary decisions. Perhaps that is as it ought to be. Certainly there have been those eager over the course of the last century to legalize a much expanded notion of the unitary authority of the president. But that remains controversial, and the controversy might have benefited from discussion. Instead determinations are made through the back door and using the parallel language of control of the legal basis for the invocation of an authority to enter into multilateral treaties. And of course, such great assertions of power—an aggressive understanding of separation of powers, will inevitably bump into that great barrier to the assertion of such unitary power—the principle of checks and balances built into the structure of the federal constitution. . . . unless the coordinate branches concede, and with it concede the form of the Republic’s design.

These points are driven home by the next three sentences. The first two produce the parade of horribles that is asserted has come about by the pursuit of this decades long illegitimate project. The last sentence of which suggests the root of illegitimacy, one grounded in perversions of democratic sovereignty.
For example, the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), is an international treaty that, according to the international committee officially charged with interpreting it, would, among other things, prohibit the celebration of Mother’s Day and require the decriminalization of prostitution. Likewise, the U.N. Convention on the Rights of the Child has been interpreted to prohibit spanking. Whether one agrees or disagrees with these outcomes as a substantive policy matter, these are not appropriate matters for international treaties. To the contrary, these types of treaties are emblematic of a larger problem, whereby these treaties are used to force countries to adhere to often radical domestic agendas that could not, themselves, otherwise be enacted in accordance with a country’s domestic laws.
The parade of horribles sentences are to be expected yet they are curious for the distortions and phantasmagorical contortions that they imply, contortions that do not jibe even with a sound conservative view of the legal framework within which they were negotiated. Let is take the first sentence and its indictment of the  CEDAW. CEDAW was a product of Republican policy from the 1970s.  From a strictly legal perspective none of this matters, of course.  The United States may well have signed the Treaty, but the U.S: Senate has failed to ratify it.  Thus, as of this moment it ha no legal effect as an obligation of the United States.  More importantly, even were it ratified, it would have no internal legal effect because it is not or is unlikely to be understood as a self executing treaty.  In order for CEDAW to have any effect within the United States, Congress would have enact it as law.  And thus the connection between CEDAW and Mother's Day is impossibility tenuous.  Let me be clear: in order for CEDAW to prohibit Mother's Day in the United States the following would have to occur: (1) CEDAW would have to be ratified, (2) the ratification would have to avoid any reservation of authority in the United States, (3) as ratified the United States would have to enact national law  that transposes the international obligations of that treaty into national law, (4) in the process of that transposition, the Congress of the United States would have to interpret the CEDAW as mandating that Mother's Day be suppressed, (5) acting on its interpretation the U.S. Congress would have to pass a law banning Mother's Day, and (6) in subsequent litigation the U.S. courts would have to interpret both treaty and Congressional authority as extending to the suppression of Mother's Day on this basis. CEDAW, then, acquires its potency through its hortatory effect--its ability to be influential in political and cultural discourse, rather than from an legal effect.

But of course this is absurd.  And manipulative (query whether ethical in political fighting for the hearts and minds of the those who exercise popular power). And worse, it creates a false connection between the treaty and the consequence, and ascribes a false notion of the effect of international law on the internal governance of the United States that is at best implausible and at worst suggests that the U.S. Congress is incapable of complying with its representative constitutional responsibilities.  That is to say, the argument is based on the assumption that the authority that the CEDAW might vest in Congress to choose to interpret the national application of its provisions as permitting the elimination of Mother's Day becomes in the rhetorical magic box of the Explanatory Statement an assertion that CEDAW imposes on Congress an obligation both to transpose its provisions and to mandate their interpretation in one specific way. The sentence, thus, reflects a certain ideologically convenient perspective that, like a set of distorting mirrors, transmogrifies everything it sees into something quite unreal--but effective to frighten those who do not know better. To suggest that CEDAW would require the elimination of Mother's Day is to suggest that Congress has no will and the doctrine of direct effect has no legitimacy in the United States (but see here for its effectiveness in American political tropes; contra here). CEDAW is, in fact not merely a false target, but one in which the United States in its sovereign majesty has already resisted without compulsion, until the Republic chooses otherwise of its own accord. More interesting still, Mother's Day is as easy to suppress under the authority of those who raised it up as a matter of domestic law today as it would be under the guise of international "obligation."

The same phantoms haunt the misinterpretation of the reach of the Convention on the Rights of the Child (CRC).  Like the CEDAW, the United States has signed but not ratified the CRC.  And even should it ratify the CRC, it would be up to Congress to shape its transposition into national law. It is hard to understand the fear that runs through the most powerful nation on earth in the face of pieces of paper that it is free to, as it has, disregarded.  And even more interesting the fear that an international obligation somehow compels it to transpose the treaty in a certain manner and to a certain extent.  In the narrative of the "Explanatory Statement" the government of the United States is painted  as naked and afraid before the ark of the law of nations.  Yet that picture, as satisfying as it might be to internationalists (and indeed the odd thing about the argument is its easy acceptance of the most radical progressive reading of the force and effect of international law, an irony worth underlining)  does not come close to describing the conventional conservative reality of the relation of national to international law. Yet while conventional conservatives understand the authority that the United States retains, even were it to ratify and transpose the treaty, social conservatives have twisted the scope of flexibility in CRC that might permit the suppression of spanking as a discretionary matter into a mandatory obligation imposed on sovereign legislatures (e.g., here; contra here). And yet the oddest thing is that Congress and the states might already have this authority.  The presence or absence of a multilateral treaty adds little to the discussion but hysteria. 

The value of the examples is not in their distortions of conventional conservative understanding of the limits of treaty obligation within the United States in the face of an unwilling Congress (though the political value of those distortions are potent enough, see here). Rather the fear is more subtle--and to that extent more potent.  That fear is that international obligations provides the cover that a duplicitous Congress might need to hide behind; it serves as a false courage to do through the guise of complying with international law what it could not bear to do directly.  Or put a different way, it substantially reduces the political cost of action by deflecting its cause from Congress to some outside force that cannot be resisted. In that, and in that only, might the fears reflected in the Explanatory Statement produce something that approaches coherent concern. Yet, if that is the concern, it is not clear that the DMMT provides the most efficient solution. Indeed, to substitute one subterfuge to avoid another hardly seems like more than a wash and no great advance on the politics of the Republic.

And that is a pity, because the Explanatory Statement then seeks to break new ground as it summarizes the purpose to which it is meant to be used. That purpose is grounded in two actions. The first is to stem the flow of illegitimate bleeding of national democratic sovereignty. And the second is to seek to undo the damage caused by the actions of Presidents from Eisenhower through the present. 
The purpose of the accompanying executive order is to prevent the making of any new treaties—other than treaties that are clearly appropriate matters of international concern, such as treaties implicating national security, extradition, and international trade—until a high-level executive branch committee has had an opportunity to review and assess the treaty.
What an extraordinary leap--though one foreshadowing in the first sentence of the paragraph,though one foreshadowed int he first sentence of the Explanatory Statement. It starts by dismissing the political foundations of state authority to choose the nature and content of the treaty obligations it might seek to impose on itself. It suggests, indeed, that there is some sort of legal limitation on the authority of a government to choose to enter into specific types of treaties. These limitations are not written into the text of the constitution, but rather, appear to be derived from extra constitutional principles--the principles of democratic and representative government inferred from but not written onto the Constitution of the United States. This interpretive leap, every bit as ambitious as the sort of extra constitutional gymnastics that are usually hurled at liberals to de-legitimate their interpretive project is here deployed to deligitmate the conservative project of republican government by reading into something--that something is not specified--an inherent structural limitation on the power of the state with respect to the kinds of international arrangements it may enter into.

Not that this theory is unheard of. Certainly German constitutionalism hints at a power to prohibit the state from using its constitutional authority to undermine the constitution. And to the effect it has identified a number of ordering principles. But this is not Germany, and those who now advance this theory of constitutional constraint in international treaty making point to nothing other than the certainty of the righteousness of their cause. . . . .and the depth of their distaste for the political agendas that produced treaties clearly not to their political tastes. The appropriateness of matters for treaty making are left to the people to be exercised bu their representatives in the Senate and President represented. The federal constitution does not constrain either political branch in the exercise of their authority for the advancement of the welfare of the people--nor does it protect the people from the exercise of folly rather than judgement by either or both branches--something that appears to have been much in evidence across the political spectrum of late. Nor should it be twisted to erect a limit on the exercise of political authority to protect the people from themselves. Having made these broad statements, of course there are substantial caveats. The constitution may not be read to undo itself. Nor should one power be used to undermine the others. But these "checks and balances" tend to be structural rather than programmatic. They are grounded on the exercise by each branch of its power to further the interests of those they represent. It does not specific--except where it does--those particulars that may be exercised or not by Congress or the President. And here--for good or ill--there is little in the text of the document to suggest some sort of divide between an unspecified "domestic regulation" and everything else. Nor, as described above, doe the constitution intimate that Congress must bow before even the international legal obligations that Congress and the President might seek to impose on the state.

Lastly, the mere ratification of a treaty does not otherwise expand the power of Congress beyond that already contained in the constitution. Where the Explanatory Statement goes very wrong--and for important reasons of political purpose--is in its determined conflation of discretionary authority and mandatory provisions. Treaties cannot make Congress do anything that Congress does not choose to do. To paint treaties as invested in some magical power--even legal magic--that converts discretion (the exercise of which is in the essence of the treaty itself) into unavoidable compulsion transforms American law beyond recognition. Perhaps that is the object. And that would be lamentable indeed. And then there are the courts--were congress to act on the basis of a pretended compulsion to produce domestic law beyond its authority the Courts would undoubtedly also exercise their own autonomous power to void such illegitimate extension of legislative authority. Certainly the courts of the American Republic have not been shy on that score in the 20th century. They are unlikely to cringe before the might of international legality now--and recent cases have borne that out (see, e.g., here).

And thus the purpose of the Executive Order is an odd purpose indeed. It is one that imposes a new distinction in treaty making--that produces a narrowing of the scope of the exercise of Presidential and national power abroad, by distinguishing between matters of national security, extradition and international trade on the one hand, and everything else on the other.That said, one ought to have no conceptual argument with the political authority of any president to exercise his foreign policy authority as he or eventually she sees fit.  That is a core of the national executive power and the President ought to exercise discretion in the full knowledge that he will either be rewarded or condemned by the coordinate branches and the people in accordance with the exercise of their respective powers.  The 45th President has indicated his distaste for CDC and CEDAW.  Fair enough.  There are many who might disagree.  But that is politics.  But those political judgments do not in any way tie the hands of a Congress facing either the decision to ratify the treaties or the decision of Congress ot transpose them as they see fit into domestic law.  Further, there is nothing to prevent the president to exercise his veto authority were he not to agree with Congressional choices; nor again to prevent the courts to determine that either or both have exceeded their constitutional authority.  In short there is no constitutional crisis that merits special attention to multilateral treaties.  There is merely the creation of a perception of such, against which it will be easier to dispatch some normative choices that the 45th Presidency finds unpalatable.  It might have been more honest to have just directly rejected both and faced the consequences.

But of course, there is more.  The object is not necessarily the constraining of American authority in the structuring of its legal structures or internal political relationships.  The Explanatory Statement appears to aim much higher and broader.  The real object is the dismantling of the core premises on which the current international system is grounded--the construction of a dense network of normative principles that are meant to weave the global community into one more or less coherent whole.  The method is to create an internal structural constraint on this 80 year old drive toward cultural and societal empire grounded in American management of the trajectory of normative values in part because the project is no longer entirely or even prominently in American hands any more.  The CEDAW and CDC are merely evidence that the project of global legal normative coherence has gotten out of hand, out of American hands.  That makes them both particularly offensive politically to those whose values the 45th President appears to wish to advance.  And in the process, the 45th President also advances a retreat, through clever structural transformations of American engagement with the world, from the very project that produced both the basic coherence necessary to support that economic globalization that has brought much wealth into the United States and that centered the Americans within that globalization.  That also is a political choice.  One only wishes it had been more clearly articulated so that it might more openly be discussed.

But it also one that will affect the ability of this Republic to ensure its interests even within narrowly defined areas of trade, security, and extradition. CEDAW and CDC are merely small expressions of a larger and deeper global trend.  To run form it puts the Republic on a fool's path.  For surely what follows CEDAW and CDC without the intervention of agents of this Republic will only make what comes after potentially more adverse to our long term interests and our ethics and principles. Indeed, such an approach might well undermine our national security by leaving a hole where the Republic should be in those international organizations in which global norms will now be made around us--and like China in the 19th century, eventually imposed on us as the unequal treaties of this century. And there would be tragedy indeed for this Republic--whatever one thinks of the politics and premises of the international public law-norm machinery. 

Still, if that were all that this draft DMMT represents, it hardly merits the words spilled in analysis.  This Republic has been through this before and has heard variants of these arguments in many guises since the beginning of American adventurism in the first part of the 19th century.  What makes this interesting this time around, and worthy of sustained interest, is the glimmerings of theory behind the innocuous effort to announce a more suspicious and narrow approach to the engagement of this Republic with the rest of the community of states. That theory posits a structural limitation of the authority of the President to negotiate--or at its broadest even participate--in the negotiation and signing of any treaty on behalf of the Republic that touches on "domestic matters."  These "domestic matters" now acquire a constitutional dimension--as an ultra vires element now interpreted into the foreign affairs authority of the President. The assertion that such efforts are illegitimate necessarily is grounded on the principle that the president is without authority to negotiate treaties, and incur obligations in international law on the part of the United States, that might permit Congress (or compel it according to the odd interpretive twist in the DMMT) to transpose these obligation s into domestic law.  What starts as a principle of practice--something like the announcement that "this president will not negotiate such treaties" (fair enough)--is transformed at its limit into a principle that the President cannot negotiate such treaties.

In sum, then, DMMT does not work as theory, and as a matter of political strategy it affords little advantage within internal debates.  More importantly it creates a very large space that can be filled by the enemies of this Republic to mold multilateralism in the absence of the United States to steer global cultural consensus in directions that might ultimately produce great damage to national interests (ironically precisely the result DMMT is meant to avoid). So why then go to the trouble of floating this DMMT and have people like me waste substantial life resources reflecting on it?  The illegitimacy premise suggests the broader goal--not merely the embrace of a national principle of illegitimacy of multilateralism, but rather DMMT is the first step in a campaign at in essence is multilateral as well--the object is to build a multilateral consensus on the illegitimacy of multilateralism for purposes other than national defense and security, extradition and trade.  Thus DMMT represents a multilateralism that is meant to constrict multilateralism as a tool for the building of global communities and global consensus by building a global consensus against the legitimacy of the use of multilateralism itself except for quite narrow ends. The Americans do not merely want to pull out of multilateralism, they want the entire global community of states to do the same, and for that effort they offer a global principle of international law that legalizes  the abandonment of multilateralism itself.


EXECUTIVE ORDER—Moratorium on New Treaties

EXPLANATORY STATEMENT--Moratorium on New Multilateral Treaties

In recent decades, there has been a proliferation of multilateral treaties that purport to regulate activities that are domestic in nature. For example, the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), is an international treaty that, according to the international committee officially charged with interpreting it, would, among other things, prohibit the celebration of Mother’s Day and require the decriminalization of prostitution. Likewise, the U.N. Convention on the Rights of the Child has been interpreted to prohibit spanking. Whether one agrees or disagrees with these outcomes as a substantive policy matter, these are not appropriate matters for international treaties. To the contrary, these types of treaties are emblematic of a larger problem, whereby these treaties are used to force countries to adhere to often radical domestic agendas that could not, themselves, otherwise be enacted in accordance with a country’s domestic laws.

The purpose of the accompanying executive order is to prevent the making of any new treaties—other than treaties that are clearly appropriate matters of international concern, such as treaties implicating national security, extradition, and international trade—until a high-level executive branch committee has had an opportunity to review and assess the treaty. It thus (1) creates a Committee to conduct this assessment, and (2) imposes a moratorium on new treaties (other than those involving national security, extradition, and international trade) except upon the Committee’s review and recommendation. The distinction is unworkable.  And the effect is merely to vest in those charged with examining multilateral efforts an unbounded discretion to interpret the objectives of treaties to suit their politics and to constrain the ability of the state to meet outside threats and leverage its power--including its power over the normative agendas of the global community--abroad.





By the authority vested in me as President by the Constitution and the laws of the United States of America, including Article II, section 2, clause 2 of the U.S. Constitution, it is hereby ordered as follows:

Section 1. Establishment of Treaty Review Committee. There is hereby established a Treaty Review Committee (Committee), consisting of the Secretary of State, Secretary of Defense, Attorney General, Director of the Office of Management and Budget, Director of National Intelligence, Assistant to the President for National Security Affairs, and the Counsel to the President, or their respective designees.

Section 2. Duties and Functions of Committee. (a) The Committee shall undertake the following duties and functions:
(i) Review all multilateral treaties in which the United States is currently engaged in negotiations, and recommend to the President whether and to what extent the United States should continue to participate in such negotiations;

(ii) Review all multilateral treaties that have been negotiated and are awaiting the President’s signature and recommend to the President whether he should sign any such treaty, and, if so, what reservations, understandings, and declarations and would be warranted; and

(iii) Review all multilateral treaties that have been ratified and are currently in effect, and recommend to the President whether the United States should continue to be a party to such treaties.
(b) For the purposes of this order, a “multilateral treaty” subject to review under section 2(a) of this order shall mean all international agreements between the United States and two or more countries, whether embodied in a single instrument or two or more instruments, including those made with the advice and consent of the Senate, provided that a “multilateral treaty” shall not include any agreement or proposed agreement directly related to national security, extradition, or international trade.

(c) Nothing herein shall affect the Attorney General’s authority to review treaties under section [6(b)] of Executive Order ____ [the Federalism executive order].

Section 3. Moratorium. No new multilateral treaty shall be submitted to the President for signature or to the Senate for advice and consent, except those recommended to subsection 2(a)(ii) of this order, unless its submission is based upon the recommendation of the Committee in accordance with section 2 of this order.

Section 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposes.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any other party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

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