Harvard Law School Professor Jack Goldsmith recently published an op-ed in the Washington Post on the effects the new Strategic Arms Reduction Treaty (START) could have on the Senate’s role in foreign policy. The treaty between the U.S. and Russia differs from its predecessors in that executives from both countries can implement changes to the agreement without needing the approval of the Senate or the Russian Duma. Goldsmith, the Henry L. Shattuck Professor of Law, along with Jeremy Rabkin, also points out that how an issue is handled between different branches of government can outline for a court its constitutionality.

CRITICS of the new Strategic Arms Reduction Treaty (START) warn that it may endanger the United States’ capacity to go forward with missile defense. But the treaty, Senate consideration of which has been pushed back to the fall, raises another concern. Consent to it as it stands will further erode the Senate’s constitutional role in American foreign policy.

This treaty does not constrain future development of missile defense (except in a few limited ways). It does, however, create a Bilateral Consultative Commission with power to approve “additional measures as may be necessary to improve the viability and effectiveness of the treaty.” The U.S. and Russian executive branches can implement these measures and thus amend U.S. treaty obligations — without returning to the U.S. Senate or the Russian Duma.

Could the commission constrain missile defense? It is empowered to “resolve questions related to the applicability of provisions of the Treaty to a new kind of strategic offensive arm.” The treaty’s preamble recognizes “the interrelationship between strategic offensive arms and strategic defensive arms.” The commission might have jurisdiction over missile defense through this interrelationship. Russia has already warned that it might withdraw from the treaty if the United States develops missile defenses. Limits on missile defense systems thus might be “necessary to improve the viability and effectiveness of the Treaty.”

One reason is that as treaty delegations of this sort have expanded, and as more authority for making international agreements is transferred to the executive branch and international organizations, the cumulative effect of these arrangements becomes increasingly hard to square with the Senate’s constitutional role in the treaty-making process and, more generally, with separation of powers.

Some courts have begun to give credence to this concern. In 2006, the federal appellate court for the District of Columbia declined to implement the “adjustments” that an international organization had made to an environmental treaty even though the political branches agreed to the adjustment process. The court noted the “significant debate over the constitutionality of assigning lawmaking functions to international bodies” and held that treating the treaty adjustments as law “would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers.”

Click here for the full op-ed »