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A Halloween Treat(y): Political Partisanship and The Declining Role of Article II Treaties

21st Century government in the United States has become synonymous with extreme political polarization. Since the 2000 presidential election, and the subsequent Supreme Court decision in Gore v. Bush, political bipartisanship has been sparse, at best. Numerous factors have played into the growing political divide in Washington, including a widening ideological gulf between the Democratic and the Republican parties, the salience of all issues big and small, the influence outside interest groups (particularly evident since the Citizens United ruling in 2010), and the numerous media outlets which allow both sides to spin information and facts as they please. By and large, the focus on the consequences of such political divisiveness has been on the gridlock and the ramming through of legislation without minority party support. Most recently, the attention has been centered on the looming fiscal cliff, about which the divided Congress and government has failed to come to a resolution, and the Affordable Care Act, which lacked any Republican support and only passed due to the majorities the Democrats had in both the House and the Senate. The political polarization, however, affects more than just domestic legislation. Specifically, it has also plagued the treaty ratification process.

Since the end of World War II, presidents have become increasingly reluctant to submit treaties to the Senate for ratification. In fact, according to Treaty Politics and the Rise of Executive Agreement: International Commitments in a System of Shared Powers, written by Glen S. Krutz and Jeffrey S. Peake, “Of the 15,894 international agreements between 1946 and 1999, only 912…were formal Article II treaties” . That is, the Senate never approved 94.7% of all international agreements signed into effect during the five and a half decades after the war. This trend continued into the 21st Century. “Through the first six years of the George W. Bush presidency (2001-6), the United States completed 1,172 international agreements. Only 73…were treaties submitted to the Senate for advice and consent”. In those six years, the Bush administration submitted treaties to the Senate at roughly the same rate (6.2%) as the previous five and a half decades combined (5.7%). In comparison, from 1930 to 1945, 176 of 641 (27.5%) treaties were formal Article II treaties. According to Article II of the U.S. Constitution, the Senate is the governmental organ responsible for ratifying treaties with a two-thirds vote. As is evident though, presidents are shying away from submitting treaties to the Senate. Instead, presidents prefer to use executive agreements, binding international agreements crafted and signed solely by the president.

While this trend may indicate growing executive power, a common theme in political analyses in recent decades, I believe it is more indicative of the growing political polarization in Congress and thus, in the ratification process. If the opposing party controls the Senate, then the president will find it very difficult to muster up enough votes to achieve ratification. The difficulties, though, start much earlier than just the final vote on the treaty. The Senate Foreign Relations Committee must first approve of the treaty with a vote before it comes before the entire Senate for a final vote.  If the opposing party controls the committee, then political maneuvering and gamesmanship will be required to get it to the floor for a vote. Even if that succeeds, the president must get the treaty on the cluttered Senate agenda in order to bring it to a final vote. The process is long and arduous and may take many months. As a result, presidents are less willing to seek Senate ratification for treaties, preferring to use executive agreements to avoid such an intensive process and a potential foreign policy embarrassment should the treaty not be ratified.

Thus, political polarization is damaging the Constitution by rendering the Senate’s role in treaty ratification nearly obsolete. While this trend of vastly preferring executive agreements to Senate treaty ratification may never cease to exist, it should be clear that improving the current state of extreme political polarization would help lessen the strain between the Congress and the executive branch and thus, improve other areas that are affected by this political divide. After all, treaty ratification is not the only area of government outside domestic legislation that is affected by such a divided two-party system.