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Is NAFTA Constitutional?
Bruce Ackerman and David Golove
Harvard University Press, 1995

By a vote of 61 to 38, the Senate joined the House in declaring that "Congress approves...the North American Free Trade Agreement." The vote was virtually unnoticed, since the real battle over NAFTA was in the House. But there is a puzzle here. The President, the Framers assure us, "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Whatever happened to the Treaty Clause?

Bruce Ackerman and David Golove tell the story of the Treaty Clause's being displaced in the twentieth century by a modern procedure in which the House of Representatives joins the Senate in the process of consideration, but simple majorities in both Houses suffice to commit the nation. This is called the Congressional-Executive Agreement, and is a response to a sea change in public opinion during and after World War II.

This agreement substituted for a failed constitutional amendment that would have required all treaties to be approved by majorities in both Houses rather than by two-thirds of the Senate. The modern Congressional-Executive Agreement was self-consciously developed in order to make formal constitutional amendment unnecessary. So, is NAFTA constitutional?

This book is reprinted from the Harvard Law Review.

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front cover of Treaty Politics and the Rise of Executive Agreements
Treaty Politics and the Rise of Executive Agreements
International Commitments in a System of Shared Powers
Glen S. Krutz and Jeffrey S. Peake
University of Michigan Press, 2011

“Krutz and Peake’s book . . . puts another stake in the heart of the ‘imperial presidency’ argument.”
—Lisa L. Martin, University of Wisconsin–Madison, American Review of Politics

 

“Krutz and Peake reach their conclusions as a result of carefully crafted examination that might be cited as a model of political analysis of this sort . . . As [they] introduce each chapter with a summary of the argument as developed and supported to that point, the reader can enter into and understand their discussion and argument at virtually any point in the book. In sum, Treaty Politics and the Rise of Executive Agreements is a clearly written and important book that adds substantially to the existing literature on the presidency and on presidential-congressional relations.”
—Roger E. Kanet, University of Miami, International Studies Review

“One can only hope that this fine and challenging book starts an argument, or at least a dialogue, about presidential power in a post-Bush era. It merits the attention of presidency and congressional scholars, and those interested in the interaction of America’s political institutions.”
—Michael A. Genovese, Loyola Marymount University, Journal of Politics

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