On the Record: Why the Senate Should Have Access to Treaty Negotiating Documents

By: John Love

 The Treaty Clause of the Constitution describes the mechanism through which the United States enters into treaties with other nations. Though seemingly straightforward, the Clause is unique in that it is an “explicit constitutional mandate to share power.” As such, defining the precise contours of this power has led to several conflicts between the executive and legislative branches. One such dispute concerns the fate of a treaty’s negotiating record, particularly whether the President must, can, or should provide such records to the Senate when he submits a treaty for its advice and consent. At least three times in the last thirty years, the President and the Senate have openly disagreed about the existence and nature of this obligation, hampering the ability of the United States government to conduct effective foreign policy. However, despite the formidable problem this question poses, no legal scholarship has addressed it to date. This Note fills that void and argues that although this is likely a nonjusticiable political question, it is nonetheless a legal question deserving of legal analysis. Analyzing the costs of each extreme position—a total bar to Senate access or complete, unfettered Senate access—this Note concludes that both are undesirable. This Note then argues that the optimal solution would be for the Executive to provide relevant portions of the negotiating record to the Senate Committee on Foreign Relations on a classified basis, but only if the Committee determines that provisions of a treaty are ambiguous and recourse to the negotiating history would assist in elucidating the intent of the treaty parties.

 

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