Necessary and Proper: Executive Competence to Interpret Treaties

Abstract

From Europe, where I have been for the last months, it seems quintessentially "anglo-saxon," in that slightly pejorative sense in which Europeans use the term, to have selected a debate format to explore the question of whether the Executive should continue to perform treaties and, as a necessary part of that function, have the autonomous competence to interpret the instrument in light of changing circumstances and needs or whether the Executive should henceforth constantly check back with the Senate or Congress for authorizations for each new interpretation. The format creates a certain drama but it also polarizes inquiry, presses participants and audience into a disjunctive, either-or mode and deflects attention from the search for integrative solutions. Given my own views on the matter, I find it particularly constraining. Though I think Bricker Amendments, however they try to weasel in, are misguided and could not imagine myself sitting on the other side of this table on this issue, some assertions made successively on behalf of the Carter, Reagan and Bush administrations are equally unpersuasive.