The Appointments Clause as a Hurdle to the President’s Trade Agenda

Ryan Scoville
Monday, April 24, 2017, 1:55 PM

Recent reports suggest that the Trump Administration is renewing its push to reform U.S. trade relations. Last week at a speech in Wisconsin, the President criticized the North American Free Trade Agreement and promised “to make some very big changes or . . .

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Recent reports suggest that the Trump Administration is renewing its push to reform U.S. trade relations. Last week at a speech in Wisconsin, the President criticized the North American Free Trade Agreement and promised “to make some very big changes or . . . get rid of NAFTA once and for all.” During a trip to East Asia, Vice President Pence similarly expressed that the administration intends to renegotiate bilateral trade deals with Japan and South Korea. These developments raise two significant questions regarding the separation of powers: Under what circumstances can the President terminate U.S. participation in a trade agreement? And under what circumstances can he renegotiate an agreement?

Commentators have focused primarily on the first question. Julian Ku and John Yoo, for example, contend that the Commerce Clause bars Trump from terminating NAFTA unilaterally. Others such as Curtis Bradley and Kristen Eichensehr have analyzed treaty termination in more general terms. But the second question also warrants attention. As I see it, there is a fair argument that the President cannot renegotiate a trade agreement without specific, prior approval from the Senate.

The argument is based on the Appointments Clause, which requires the Senate’s advice and consent for the appointment of “Ambassadors” and “other public Ministers.” Many contemporary observers assume that the President holds independent power to appoint any and all U.S. negotiators of international agreements. On this assumption, President Trump need not, at least as a constitutional matter, seek advice and consent in selecting those who would renegotiate NAFTA or any other trade agreements because the negotiators would not qualify as “public Ministers” and “Officers of the United States” under the Appointments Clause.

This assumption is not unreasonable. It draws support from the Justice Department’s Office of Legal Counsel and an apparently significant volume of modern practice. It is one that the Senate has done little to oppose in recent years. And it is functionally sensible as a position that facilitates the making of international agreements.

But it is likely at odds with original meaning. As I explain in much greater detail elsewhere, there is ample evidence that the Framers expected the President not only to obtain the Senate’s advice and consent in appointing those who would negotiate an international agreement, but also to do so for each and every separate negotiation. On this understanding, President Trump cannot pursue any new trade negotiations without first obtaining fresh advice and consent for the designation of those who would serve as the negotiators.

The logic of this position is straightforward: “public minister” is a term of art under the historical law of nations; the definition of that term plainly encompassed treaty negotiators; and the Framers appear to have understood that one who qualifies as a public minister for the U.S. government under the law of nations constitutes both a “public Minister[]” and an “Officer[] of the United States” as a matter of domestic constitutional law. Thus, the advice and consent of the Senate is necessary for the appointment of such officials.

The evidence of this understanding is largely circumstantial, but includes a long line of practice whereby Presidents Washington, Adams, and Jefferson repeatedly and consistently sought the Senate’s advice and consent in selecting the participants for international negotiations. This happened in a number of high-profile cases, including Jay’s Treaty, the XYZ Affair, and the Louisiana Purchase, among roughly two-dozen others. The evidence also includes the Framers’ decision to subject the comparatively insignificant class of “Consuls” to the requirement of advice and consent, which suggests a vision of Senate involvement in a broad range of foreign affairs appointments. And the evidence includes the understanding that negotiators from foreign governments are “public Ministers” for purposes of the Article II Reception Clause and Article III, which suggests that their functionally identical American counterparts are “public Ministers” for purposes of the Appointments Clause.

There are a few obvious responses. One is to discount the significance of original meaning in light of modern custom. Another is to distinguish the precedent from Washington, Adams, and Jefferson by pointing out that none of it involved the negotiators of congressional-executive agreements, which now predominate in the area of U.S. trade relations. Still another is to contend that the practice of obtaining the Senate’s advice and consent for the appointment of a handful of top officials at the Office of the U.S. Trade Representative confers on a wholesale basis the same legitimacy that retail advice and consent used to supply immediately prior to each negotiation.

On the first point, I’ll simply note that even to the extent that unilateral appointments have been customary in recent decades, and even if one accords significant weight to historical gloss, original meaning remains relevant as a basis for allocating the burden of persuasion. Given the evidence from the Founding, in other words, I would think that the question is not whether the Senate is justified in inserting itself into the matter of treaty negotiations, but whether the President is justified in abandoning the original model of shared governance by pursuing new negotiations at his discretion and without meaningful approval from the Senate. Perhaps he is, but that is a case that needs to be made. Moreover, even if one were to make that case, the original meaning of the Appointments Clause at least helps to clarify the difference between early and contemporary practice in the domain of treaty-making. For better or worse, that difference is substantial, and the Trump Administration is its current beneficiary.

On the second point, it is true that none of the early examples involved congressional-executive agreements, but a number of commentators (e.g., here) have suggested that the United States did not enter into its first congressional-executive agreement until 1845, so the absence of Founding-era precedent specific to that type of instrument is no surprise. Equally important, the logic of the argument does not hinge on the domestic-law classification of the agreement that the negotiator will pursue, whether that be an Article II treaty, a congressional-executive agreement, or a sole-executive agreement. And U.S. practice reflected as much. Most of the cases of advice and consent appointments involved Article II treaties. But in 1799, President Adams also sought and obtained the Senate’s advice and consent in appointing William Vans Murray to negotiate the nation’s first sole-executive agreement—the settlement of a claim against the Netherlands for the unlawful seizure of an American ship. It is unclear why the Framers would have treated the negotiator of a congressional-executive agreement (at least the ex post variety) any differently.

With respect to the third point, it certainly helps that the Senate advises and consents to the appointment of top officials at the Office of the U.S. Trade Representative, as this plausibly implies that the Senate approves the initiation of any negotiations (even if not necessarily the results thereof) that the appointees might eventually pursue. But I am not sure it is sufficient. The Framers—and certainly the law of nations with which a number of them were familiar—appear to have treated as public ministers everyone who personally participates in international negotiations in an official capacity. It follows from such practice that advice and consent is necessary not only for top officials at USTR (the USTR, the Deputy USTRs, and the Chief Agricultural Negotiator), but also for the various Assistant USTRs and perhaps others as well.

In addition, it is questionable whether wholesale advice and consent of the sort that currently predominates is a sufficient substitute for the retail advice and consent that the Framers pursued on the occasion of each new negotiation. The formal difference is transparent, but the modern approach also encounters a unique practical disadvantage: Often serving for a number of years, senior officials at USTR might become involved in negotiations that are not even on the horizon at the time of their initial appointment. In this context, it is much harder for the Senate to know what sorts of negotiations it might end up facilitating by endorsing a nomination. The result is that President Trump has greater freedom to pursue his trade agenda, sign new agreements and thus trigger interim obligations with which the United States must comply as a matter of international law, and shape foreign expectations about developments in U.S. law and policy without meaningful input from the Senate. This is one of the consequences—again, for better or worse—of living constitutionalism.

Ryan Scoville is a Professor of Law at Marquette University Law School.

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