Forget Those Treaties!

Here's the question of the day: Can the United States ever ratify a treaty, be it Kyoto or the Rome Statute for the International Criminal Court (ICC), and take its rightful place in the governance of the world? Not likely -- unless we give up the anachronism of ratifying treaties. Let's just ignore the Treaty Clause (Article II, section 2, clause 2) of the U.S. Constitution: "[The president] shall have Power … with the advice and consent of the Senate, to make Treaties, provided two thirds of the Senators present concur …"

Two-thirds! And that's two-thirds of a Senate which overrepresents Idaho, Wyoming, and America's backwoods. Remember Woodrow Wilson, or Jimmy Carter, struggling to get through their treaties. Even if the Democrats win the White House and the Congress in 2008, any liberal president will be as paralyzed as Wilson was if he or she tries to revive Kyoto or the ICC, which are among the great global projects of our day.

So what's the way out of this bind? It's the same way out we used for NAFTA or for fast-track free-trade agreements. That is, we just pass a simple law. "Yes we will comply with Kyoto." Or: "We're in the ICC." It's a straight up or down vote in the House. Then it's 50 votes plus the veep in the Senate, if we get rid of the filibuster under special fast-track-type rules. Otherwise our next president is going to be a Woodrow Wilson.

Though "Wilsonian" can mean "idealistic," especially in neo-con talk, to me it means just "helpless," as in sidelined with a stroke. It's a way to describe a president who pushes human rights and comes up with a League of Nations but then is helpless to get the treaty passed. What's really "Wilsonian" about our foreign policy is this schizophrenia, which keeps unnerving the world. There is a good United States, which virtually invented human rights. And there is a bad United States, which rages and throws a tantrum at the mention of a treaty. And now that global government is a bigger deal, as in Kyoto or the ICC, the tantrums are getting bigger, too. With both a Treaty Clause that requires a two-thirds vote and a wildly unrepresentative Senate, a group of senators representing 9 percent of the U.S. population could stop any UN–type effort to deal with global warming.

Think of all the UN Conventions we've waited decades to sign, or still have not signed. Or if we do sign them, we do it with "reservations" -- like, "This treaty has no meaning if it means anything other than what we already do." By blowing off both Kyoto and the ICC, Bush took this version of American exceptionalism to a new level. And even if, miraculously, Bush wanted to ratify Kyoto and the ICC, he wouldn't have a prayer. We don't have a post-1945 constitution that would let us easily enter into world agreements. Our "imperial president" lacks the power of a British prime minister or a German chancellor; since 1919, presidents have seldom been able to cut a global deal on the really tough issues.

The next Democratic president will be looking straight down into Woodrow Wilson's grave -- unless we just stop trying and failing to ratify these things as treaties. Instead, we should just do what we do when we pass a trade bill. A "law," or "Executive-Congressional agreement," or whatever you want to call it is just as good.

"But doesn't it still have to go through the House and Senate?" Yes, but if the House is Democratic, everything gets through the House. It's an electoral dictatorship, and Nancy Pelosi is like a Gordon Brown dealing with a British Parliament. The House, thank God, will pass damn near anything.

The problem is the Senate -- but there's a way around the problem. In a law-journal article in 2004, George Washington University law professor Steve Charnovitz proposed a fast-track–type scheme for these laws to replace treaties. Congress indeed has rules exempting some bills (fast track, budget resolutions) from filibusters. Now to some, a mere law passed by two houses of Congress is not as good as a treaty: "If it's not a treaty, it's not binding." But a treaty is not binding, either, if we decide not to abide by it, as Bush stopped abiding by the Anti-Ballistic Missile Treaty. In some ways, a law is really much better than a treaty, because it is more likely we can go to court to hold the United States to it. That can happen with a treaty, too. But as a lawyer, I'd much rather sue to enforce a statute. Treaties make judges nervous.

That's the case for using laws instead of treaties to deal with the great issues of our day, rejoin America to the rest of the world, and keep the next Democratic president from staring into Wilson's grave.