Quick Reactions to Obama’s UN Gambit on Nuclear Testing

Jack Goldsmith
Friday, August 5, 2016, 7:02 AM

Josh Rogin of the Washington Post reports that “President Obama has decided to seek a new United Nations Security Council resolution that would call for an end to nuclear testing, a move that leading lawmakers are calling an end run around Congress.” The piece’s title says Obama’s gambit will “bypass” Congress.

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Josh Rogin of the Washington Post reports that “President Obama has decided to seek a new United Nations Security Council resolution that would call for an end to nuclear testing, a move that leading lawmakers are calling an end run around Congress.” The piece’s title says Obama’s gambit will “bypass” Congress. The Wall Street Journal editorialists similarly maintain: “Our sources say the President has also decided to seek a United Nations Security Council resolution banning the testing of nuclear weapons. This means that two decades after the U.S. Senate refused to ratify the Comprehensive Test Ban Treaty, Mr. Obama may usurp the Senate’s constitutional treaty powers with an end-run to the U.N.” And Senator Corker, the Chairman of the Senate Foreign Relations Committee, says:

This is a plan to cede the Senate’s constitutional role to the U.N. It’s dangerous and it’s offensive. Not only is this an affront to Congress, it’s an affront to the American people. It directly contradicts the processes that are in place to make sure that Congress appropriately weighs in on international agreements.

What it really does is allow countries like Russia and China to be able to bind the United States over our nuclear deterrent capability without the scrutiny of Congress. Should we ever decide we may wish to test, we could be sued in international courts over violating a United Nations Security Council resolution that Congress played no role in.

My first reaction is to doubt that the President will (as the WSJ says) seek a U.N. Resolution “banning the testing of nuclear weapons.” It is unclear whether the Security Council would have the authority to issue such a ban, even assuming that one of the other permanent five would not veto it. Rogin’s claim is more circumspect, and probably more accurate. He says the planned Resolution would “call for an end to nuclear testing,” and says that the NSC Spokesman told him that the administration is “looking at possible action in the UN Security Council that would call on states not to test and support” the Comprehensive Test Ban Treaty’s objectives. Rogin’s reporting make it sound like the administration is considering a hortatory Resolution that would state the ambition or goal to end nuclear weapons testing, not one that would impose a ban on such testing. Those are two very different things, and the former is much less significant than the latter (though not insignificant).

If I am right that what is planned is not a ban on nuclear weapons testing, then the significance of the UN action is much less a threat to Congress’s prerogatives than is suggested in the two articles. But what are Congress’s prerogatives here? The situation is akin to the one in the Paris Agreement and the Iran Deal, which I have written a lot about in these pages (and in succinct form in the second half of this essay). In those examples, the President acted (1) in the face of opposition by the current Congress, but (2) based on older authorities delegated by Congress to the President, to (3) effectuate domestic law change in order to satisfy pledges made in non-binding international agreements. Or, simplifying a bit, the President used an authority delegated by a prior Congress to achieve an international goal without seeking contemporary approval from Congress. Something like that is happening here, though the international “agreement” will come in the Security Council rather than a broader multilateral pact, and I don’t see any need to change domestic law.

The Senate has for two decades refused to consent to the Comprehensive Test Ban Treaty, and it is not inclined to gives it consent in the last six months of the Obama administration. So the President is doing what he can—probably no more, at best, than a Resolution encouraging a universal test ban, or starting an alternative process toward one. And where does the President get this authority to make policy and cast votes in the U.N .Security Council? Presidents have exercised discretion under Article II of the Constitution to speak and vote for the United States in the United Nations—with enormous consequences on a variety of topics, and without congressional input or approval on particular matters—since the 1940s. And importantly, Congress has expressly approved and authorized this practice in broad and unqualified terms.

Section 287 of Title 22 provides that the President, with the Senate’s advice and consent, “shall appoint a representative of the United States to the United Nations” who “shall represent the United States in the Security Council of the United Nations.” And Section 287a of Title 22 provides that the U.S. representative to the United Nations “shall, at all times, act in accordance with the instructions of the President” and shall “in accordance with such instructions, cast any and all votes under the Charter of the United Nations.” In sum, Congress has delegated unqualified authority to cast votes in the U.N. Security Council to the President.

I am not suggesting that there are no limits on what the President can do, or how he can vote, in the Security Council. He may not be able to vote in ways that violate a specific domestic law restriction or a U.S. treaty obligation. I do not know what domestic laws or treaties might hand-tie the President related to nuclear test bans, but it is quite possible that none exists. (Non-consent to a treaty doesn’t count). There also may be some constitutional limit on the President agreeing to a U.N. Security Council Resolution that imposes large and novel international law obligations on the United States. This is entirely untested legal ground, as far as I know. But I can imagine an argument that at some point an international law-creating U.N. Security Council Resolution violates the Senate’s or Congress’s exclusive constitutional prerogatives even if it does not run afoul of prior law. And yet this would be a hard argument to make, I think, since (i) Congress has expressly authorized the President to vote in the Security Council in open-ended terms, and (ii) Presidents have for 60 years exercised this authority in a number of very consequential ways without prior congressional input. The constitutional argument would have to be that the delegation itself was somehow unconstitutional. But Congress’s power to delegate is, according to a long line of Supreme Court cases, at its apex in the foreign relations context.

So this once again seems like a situation where President Obama is taking advantage of congressional non-action on one front (the refusal to Consent to the CTBT) and congressional delegation on another front (authority to vote in the U.N. Security Council) to achieve an international goal that many and perhaps most in Congress do not like. Once again, Congress seems defeated by its own delegation.

I want to emphasize that I am not arguing here in favor of a nuclear test ban or even a hortatory U.N. Security Council Resolution. I simply want to underscore that once again, Congress is complaining about the President circumventing its prerogatives when in fact the President is exercising authority that Congress gave him. In a world in which constitutional etiquette between the branches has evaporated, a president will fall back on his hard-law prerogatives, especially those expressly delegated from Congress, especially at the end of a second term. It is a lesson that Congress should consider—but likely won't—the next time it gives away foreign relations authorities to the President.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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