The Russian ambassador to the United States, Anatoly Antonov, has reported that “important verbal agreements were made,” in the two-hour, closed-door meeting between Donald Trump and Vladimir Putin. Purportedly, those agreements involved Syria and nuclear arms. Of course, the American people have no way of knowing either the details of these agreements and, perhaps more troubling, what other deals may have been made.
Such clandestine talks brings to mind a song from the musical “Hamilton,” describing the secret meeting between Alexander Hamilton, Thomas Jefferson and James Madison that apparently led to an agreement to move the nation’s capital out of New York City in exchange for enactment of Hamilton’s controversial economic plan. Because, “no one else was in the room where it happened,” the song goes, “No one really knows how the parties get to yes; the pieces that are sacrificed in every game of chess.” The song concludes with the plaintive observation, “We want our leaders to save the day, but we don't get a say in what they trade away.”
Fortunately, the real Alexander Hamilton, the visionary lead author of the Federalist Papers, knew that our constitutional system of government provided protection against the perils of any such secret agreements between the United States and foreign nations. As Hamilton wrote, the Constitution provides only one way to make “agreements between sovereign and sovereign,” and that is through treaties.
The president was to have no power to make agreements with the rest of the world without Senate approval. Article II of the Constitution expressly states that the president can only make treaties, “provided two thirds of the Senators present concur.” In explaining the necessity of Senate involvement in the treaty-making process, Hamilton, in language that is frighteningly relevant today, cautioned that those who occupied the nation’s highest office might not always be motivated by the highest of virtues. In Federalist 75, Hamilton forewarned that, “An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents.”
Hamilton knew that an avaricious and ambitious president could not be controlled unless he was denied the power to act unilaterally. In fact, to ensure real control of such a president, the Constitution requires a super-majority, a two-thirds vote in the Senate, for a treaty to be ratified. What Hamilton called the “advantage of numbers,” reflects the way the framers intended our most important political decisions to be made, requiring more than a simple majority, but a true national consensus. In our modern political era, a two-thirds vote would mean that a substantial number of Senators from both parties would need to concur in order for any treaty obligation to be binding.
Treaties, however, have fallen out of favor. Since the 1919 defeat in the Senate of the Treaty of Versailles, which would have established the League of Nations, presidents have largely opted to use so-called “executive agreements,” instead of treaties. With the exception of arms control treaties, the treaty provision of the Constitution has been largely forgotten. In the past century, executive agreements have been utilized for 95 percent of all American foreign commitments. Sometimes, presidents make executive agreements without any congressional approval, such as the 1981 agreement President Jimmy Carter made with Iran to free American hostages. More frequently, trade agreements such as NAFTA, the North American Free Trade Agreement, are made with the approval of a simple majority of both the Senate and the House of Representatives. Neither type of agreement, though, ensures the guarantee of a national consensus that the constitutional requirement of a two-thirds Senate treaty vote does, and neither type of agreement is provided for in the Constitution.
Now is the time to return to the wisdom of Hamilton and the requirements of the Constitution. Congress must declare, in unambiguous language, that no agreement made by President Trump with any foreign country — especially none made with Russia — will be effective unless it has gone through the Constitution's treaty ratification procedure. That protection was deemed necessary in 1787, when the framers were confident that the first president would be George Washington, a person universally considered to be of impeccable character. In 2018, with a president for whom the words “avaricious” and “ambitious” barely scratch the surface of his character, reinstating the constitutional requirement of Senate ratification may be the best way to safeguard our democracy.
Michael Meyerson is the DLA Piper Professor of Law, University of Baltimore School of Law; his email is firstname.lastname@example.org.