The Erosion of American Treaty Power: A Looming Crisis for Global Stability

The balance of power in U.S. foreign policy is quietly, yet dramatically, shifting. While much attention has focused on executive orders and judicial appointments, a far more fundamental change is underway: the increasing personalization of international treaties. This isn’t simply about one president’s style; it’s a potential dismantling of the constitutional system designed to ensure American foreign policy reflects the will of the nation, not just the whims of its leader. The stakes are higher than ever, as the unchecked power to forge international agreements could redraw the global landscape with consequences lasting far beyond any single administration.

From Congressional Consent to Presidential Prerogative

Historically, significant treaties – those establishing institutions like the United Nations, the World Bank, and NATO, or governing crucial areas like trade, human rights, and extradition – required ratification by a two-thirds majority in the Senate or a majority in both houses of Congress. Smaller matters were handled through “sole executive agreements,” a mechanism intended for limited scope. But this established order is fracturing. The trend, accelerating in recent years, sees presidents increasingly bypassing Congress, negotiating deals and asserting authority over international agreements that traditionally demanded legislative consent.

This isn’t a new legal argument, but the scale and ambition of its application are unprecedented. While past presidents have utilized executive agreements, the current approach goes further, attempting to redefine the boundaries of presidential power in treaty-making. The sheer volume of agreements pursued – dozens in the first six months of one recent administration alone – signals a deliberate strategy to centralize control. Some agreements are non-binding, but the core concern lies with those that carry significant legal and financial implications for the United States.

Echoes of Monarchical Power

The historical parallel is striking. As legal scholar Emer de Vattel observed in the 18th century, treaties historically fell into two categories: those tied to the reign of a monarch, expiring with their death, and those binding on the state itself. The evolution of international law moved away from the former, establishing that a nation’s consent to a treaty must align with its own constitutional requirements, including legislative approval. By circumventing Congress, the U.S. risks reverting to a model where treaties are personal commitments, vulnerable to change with each new administration.

This isn’t just a matter of constitutional principle; it’s a matter of international law. Excluding Congress opens the door to challenges to the validity of these agreements, as nations may question whether the U.S. has genuinely consented to its obligations. The lack of transparency surrounding these deals further exacerbates the problem, echoing the dangerous secrecy of agreements like the 1939 Nazi-Soviet Pact, which sowed the seeds of World War II. Today, disputes over the details of supposed trade deals with Japan and South Korea highlight the opacity and potential for misrepresentation.

The Risks of Secret Deals and Unfunded Obligations

The consequences of this shift are far-reaching. Secret agreements can obligate the U.S. to expenditures without congressional authorization, violating the constitutional power of the purse held by the House of Representatives. More alarmingly, they could embroil the U.S. in conflicts or commitments that are not in its national interest. Consider the hypothetical scenario of the U.S. becoming a guarantor of a peace treaty recognizing Russian territorial gains in Ukraine – a move that could violate international law and drag the U.S. into a protracted conflict.

Furthermore, these agreements can undermine existing treaties approved by Congress. Negotiations with Canada, Mexico, and South Korea threaten to supplant previously ratified free trade agreements, creating legal uncertainty and potentially disrupting established trade relationships. The case of deportations to Ghana, where conflicting statements from U.S. and Ghanaian officials exposed a lack of transparency and accountability, illustrates the difficulties courts face when attempting to uphold the law in the absence of clear, publicly available agreements. Human Rights Watch has documented concerns about the conditions in Ghana and the lack of due process for those deported.

The Future of U.S. Treaty Power

The erosion of congressional authority in treaty-making isn’t inevitable, but it requires a concerted effort to reverse course. Alexander Hamilton, in the Federalist Papers, argued against granting a single executive the sole power to negotiate treaties, recognizing the dangers of unchecked authority. The current situation demands that Congress reassert its constitutional role, demanding full transparency and requiring approval for all significant international agreements.

This isn’t simply a partisan issue; it’s a matter of safeguarding the constitutional framework and ensuring that U.S. foreign policy reflects the long-term interests of the nation. Without congressional oversight, the U.S. risks sliding into a system where international obligations are dictated by presidential whim, undermining global stability and potentially jeopardizing American security. The future of American treaty power – and, by extension, its role in the world – hangs in the balance.

What steps should Congress take to reclaim its constitutional authority over treaty-making? Share your thoughts in the comments below!