A few months ago John Bolton and John Yoo published an op-ed in the Wall Street Journal criticizing the Obama Administration for promoting U.S. ratification of the Arms Trade Treaty, which the UN General Assembly adopted in April. The op-ed argues that the ATT would enable the Administration to circumvent Congress and require new domestic limits on small arms in violation of the Second and Tenth Amendments. I just read the piece and was surprised at how unpersuasive I found it to be, so I decided to write a quick response. I have already explained why the Second Amendment argument isn’t particularly compelling (see here), but a few additional points deserve emphasis:
First, in arguing that Articles 5 and 10 of the treaty would require the United states to adopt new restrictions, Bolton and Yoo overlook existing federal law. They acknowledge that the United States “already has the world’s most serious export controls in place.” What they fail to mention is that current laws also impose permit and registration requirements on arms importers, bar some imports based on country of origin, mandate broker registration, and even authorize criminal penalties against violators. I see nothing in Articles 5 and 10, or in the op-ed, indicating that these laws would be insufficient. That being the case, it’s at least questionable that the United States would have to adopt new import restrictions after ratification. While some might perceive the sufficiency of existing U.S. law as an argument against ratification, that view ignores the positive diplomatic implications of U.S. participation—an arms treaty backed by the world’s largest arms exporter would enjoy much greater legitimacy.
Second, Bolton and Yoo seem to suggest that the ATT would enable the Obama Administration to get around the Second Amendment, but that is simply incorrect. As they later acknowledge, the Supreme Court held in Reid v. Covert that treaties cannot violate the protections enshrined in the Bill of Rights. The right to bear arms being one of those protections, it is obvious that a ratified ATT would have to comport with the Second Amendment. And as I explained in my previous post, I think the treaty in fact would, particularly given the common practice of adding reservations to address issues of this nature.
Third, the argument that the President could use the ATT to circumvent the Tenth Amendment seems unpersuasive. Because the treaty focuses on international arms transfers, its restrictions fall easily within Congress’s ample powers to regulate foreign and interstate commerce. Moreover, even assuming the ATT would interfere with a traditional domain of state power, that fact would not render the treaty unconstitutional. As Bolton and Yoo concede, longstanding Supreme Court precedent holds that the Tenth Amendment does not restrict the treaty power. This concession forces them to argue that the Court’s precedent has been wrongly decided, which is the same as saying that the ATT is constitutional under that precedent.
Bolton and Yoo also attack the ATT on the ground that it is “far easier,” and thus more problematic, to adopt gun restrictions by treaty than through normal legislation. This also seems incorrect. Unlike a statute, the passage of which requires only simple majorities, a treaty must win approval from two-thirds of the Senate. Official practice is consistent with the view that this heightened voting requirement poses a greater hurdle than bicameralism: according to one study, from 1980 to 2000 the United States entered into over 2700 congressional-executive agreements, which are the same as statutes in the procedures required for their adoption, but only 375 treaties. If it were far easier to adopt treaties, one would think that they would outnumber congressional-executive agreements, or at least rival them in frequency, particularly given the widely held position that treaties and congressional-executive agreements are functionally interchangeable.
Bolton and Yoo close by suggesting that President Obama might rely upon the international obligations that accompany treaty signature to implement the ATT without Senate approval. This argument is based on Article 18 of the Vienna Convention on the Law of Treaties, which requires signatories of an unratified treaty to “refrain from acts which would defeat the [treaty’s] object and purpose.” Putting aside the political implausibility of the scenario that Bolton and Yoo describe, they gloss over the fact that most interpretations of Article 18 characterize the interim obligation as negative in character; the duty is simply to avoid new conduct that will defeat the object and purpose, not to affirmatively implement treaty provisions.
One final point: I was surprised that Bolton and Yoo did not address the issue of whether the ATT would be self-executing, given that a non-self-executing ATT would require implementing legislation and, therefore, could not possibly enable the Administration to circumvent Congress. On my reading, non-self-execution is likely. The provisions of Articles 5 and 10, for example, rather clearly contemplate domestic acts of implementation after ratification. Moreover, many have interpreted the Supreme Court’s 2008 decision in Medellin v. Texas as favoring, if anything, a presumption against self-execution. I don’t see anything in the relevant provisions that would overcome that presumption.