How hard is it to pass a treaty?

reposted from: http://www.congress.org/news/2009/12/17/how_hard_is_it_to_pass_a_treaty

If you thought health care was hard, wait until you see how hard it is to pass a treaty.
By Leah Carliner, Congress.org
reposted from: http://www.congress.org/news/2009/12/17/how_hard_is_it_to_pass_a_treaty

If you think passing a health care bill is taking forever, wait until you see what it takes to approve a climate-change treaty.

Congress is still several steps away from the drawn-out process of considering a treaty to reduce greenhouse gas emissions as part of an international effort to combat global warming.

But with world leaders from more than 190 countries gathering in Copenhagen to develop an agreement, it's coming up.

President Obama will visit Copenhagen Friday as part of an effort to negotiate a non-binding agreement to reduce emissions. He is also pushing the Senate to approve a bill that would create a cap-and-trade system of trading pollution credits.

Under the Constitution, the Senate would also have to approve any international agreement by a two-thirds vote – six votes more than the 60-vote threshold that has delayed the health care overhaul.

"That seems like a very, very heavy burden and makes it seem unlikely in some respects that the president would be successful," said New York University Law Professor David Golove.

Over the past century, U.S. presidents have relied more on alternatives to treaties, such as executive agreements that only require the president's approval.

Presidents can also seek to pass a congressional-executive agreement, which only requires a majority approval from both the House and the Senate.

In the 1995 book "Is NAFTA Constitutional?" Golove and Yale law professor Bruce Ackerman argued that the alternatives to treaties have become more popular because the 66-vote threshold is so high.

"It would be a major obstacle to imagine a treaty going through the Senate," he said.

As a result many treaties aren't even introduced in the Senate.

Of the treaties that have been introduced, only 21 have ever been rejected entirely by the Senate, the most recent being in 1999 when senators rejected the Comprehensive Nuclear Test Ban Treaty.

Assuming that Obama decides to introduce a treaty in the Senate, it will not be a quick process.

Treaty approvals tend to be lengthy deliberations in the Senate, said Christopher J. Deering, a political science professor at The George Washington University.

Once the president agrees with his international counterparts on a treaty, he must send the text to the Senate Foreign Relations Committee.

"Depending on the nature and the controversy of the treaty, (the committee) would then hold hearings, and they could be lengthy or they could be brief," said Deering, comparing it to the often lengthy judicial confirmation process.

Next it goes to the Senate floor where a variety of things could happen, including possible amendments.

If the Senate approves the treaty with additional amendments, the president must return back to his international counterparts and convince them to adopt the amendments.

If the president thinks the amendments are unlikely to be adopted by the other countries, he could chose to negotiate with only a select few to adopt what is then called a bilateral treaty.

Another possibility is that the Senate could approve the treaty with reservations, understandings, interpretations, declarations or other statements. Again, Obama would have to convince his counterparts to accept those statements.

In the worst-case scenario for the president, the Senate could simply ignore the treaty by taking no action on it.

It may help if the president involves the Senate from the start.

President Woodrow Wilson tried to finalize the Treaty of Versailles, which ended World War I and created the League of Nations, without the consent of the Senate. In the end, senators rejected the treaty twice.

President Jimmy Carter took a different approach when he negotiated the Torrijos-Carter Treaties that relinquished U.S. control of the Panama Canal. Carter consulted with at least 70 senators during the negotiations, and the Senate approved two treaties in the same year.

Despite the challenges Obama faces, it's not clear that any of that will make a difference to his international counterparts. Deering said many in the international community are ignorant of how the U.S. system works.

On the other hand, Deering said Obama can use the Senate as a foil, telling world leaders that he personally agrees with their offers but can't get them through the Senate.

"Some people argue that it strengthens the president's hand," he said.

Leah Carliner writes for Congressional Quarterly.

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