                   Constitutionality of Proposed Conditions
                 to Senate Consent to the Interim Convention
                  on Conservation of North Pacific Fur Seals

  A proposed condition on the Senate’s consent to the Interim Convention on Conservation of
    North Pacific Fur Seals that dictates how the United States representative to the international
    N orth Pacific Fur Seal Commission must vote on certain matters before the Commission is
    unconstitutional because, rather than setting forth the Senate’s understanding o f the terms of
    the convention, it would interfere w ith the ability of the President and his appointee to execute
    faithfully the convention according to its terms.

                                                                                    February 6, 1986

             M   em orandum       O p in io n   for th e   D   epu ty   L e g a l A d v is e r ,
                                    Departm ent         of     State


     You have asked for our views on the constitutionality of a proposed “condi­
  tion” to the Senate’s consent to the Protocol Amending the Interim Convention
  on Conservation of North Pacific Fur Seals (Convention). The proposed condi-
• tion would require the United States representative to the North Pacific Fur
  Seal Commission (Commission) to vote against any recommendation before
  the Commission that would result in a commercial taking of fur seals within
  United States waters, and to abstain from voting on any recommendation that
  seeks to regulate taking of fur seals for subsistence purposes on the Pribilof
  Islands. For the reasons set forth below, we believe that this provision would
  impermissibly interfere with the President’s constitutional authority to execute
  the laws, and therefore would violate the constitutionally mandated separation
  of powers between the Legislative and Executive Branches.
     The Convention, originally signed in 1957, provides an international regime
  for the protection and management of fur seals. Parties to the Convention
  (Canada, Japan, the Soviet Union, and the United States) have agreed to
  coordinate scientific research programs and to cooperate in investigating the
  fur seal resources of the North Pacific Ocean. Art. II, § 1. The Convention
  specifically requires that the parties prohibit pelagic sealing (i.e., the killing of
  fur seals at sea). Art. III. The Convention also provides for establishment of
  the Commission, which is composed of one member from each party.
     The Commission is charged to:
             (a) formulate and coordinate research programs designed to
           achieve the objectives o f the Convention;
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            (b) recommend coordinated research programs to the parties
          for implementation;
            (c) study the data obtained from the implementation of coor­
          dinated research programs;
             (d) recommend appropriate measures to the parties on the
          basis of findings obtained from the implementation of coordi­
          nated research programs, including measures regarding the size
          and the sex and age composition of the seasonal commercial kill
          from a herd; and
            (e) recommend to the parties the methods of sealing best
          suited to achieve the objectives of the Convention.
Art. V, § 2. Decisions and recommendations of the Commission must be
unanimous, with each party having one vote. Art. V, § 4.
  The Interim Convention was extended by agreement of the parties in 1963,
1969, 1976, and 1980. On October 12, 1984, the parties signed another proto­
col extending the Convention until October 13, 1988, which the President has
submitted to the Senate for its advice and consent.1 See Message from the
President of the United States Transmitting the Protocol, signed at Washington
on October 12, 1984, Amending the Interim Convention on Conservation of
North Pacific Fur Seals between the United States, Canada, Japan, and the
Soviet Union, S. Treaty Doc. No. 5, 99th Cong., 1st Sess. (1985).
  The staff of the Senate Committee on Foreign Relations, which is now
reviewing the Protocol, has proposed that the Senate’s consent be subject to
four “conditions.” The first of these, which you have asked us to review,2
would provide:
          That as a result of the decline of the fur seal population on the
          Pribilof Islands and other factors, whenever the North Pacific
          Fur Seal Commission, during the period of this Protocol, con­
          siders recommendations to the Parties pursuant to Article V of
          the Convention, the United States Commissioner shall vote
          against any recommendation that would result in the taking of
          fur seals for commercial purposes on lands or waters within the
          jurisdiction of the United States. The Commissioner shall also
          abstain from voting on any recommendation that seeks to regu­
   1 In addition to extending the Convention, the parties agreed upon a “Statem ent o f C oncerns.” In that
statem ent, the parties take note o f concerns over declines in the fur seal population, current econom ic
conditions, and other problems o f fur seal m anagem ent and conservation.
  2 The other three conditions provide that (1) the North Pacific fur seal herd shall be conserved, m anaged,
and protected pursuant to U nited States dom estic laws to the extent such law s are m ore restrictive than
provided for under the C onvention; (2) the Secretary o f C om m erce is to take appropriate steps under the
C onvention to develop and im plem ent a program o f cooperative research in the Bering Sea ecosystem to
determ ine the causes o f the fur seal population decline and to increase the health and viability of the Bering
Sea ecosystem and the N orth Pacific fur seal population; and (3) the subsistence taking o f fur seals shall be at
no cost to the governm ent You have not asked us to review these proposed conditions, and we therefore take
no position as to their constitutionality.

                                                       13
           late the taking of fur seals for subsistence purposes on the
           Pribilof Islands.
Because of the interplay between the Convention and United States domestic
law, the effect of this reservation would be to prohibit the commercial taking of
fur seals on lands or waters within the jurisdiction of the United States,3 and to
allow subsistence kills of fur seals on the Pribilof Islands only as permitted
under United States domestic law.4
   This proposed condition does not purport to set out the Senate’s understand­
ing of the scope of the international obligations imposed by the treaty or its
domestic effects;5 nor does it purport to limit the obligations or rights of the
parties under the treaty.6 Rather, it would limit the discretion of the United
States representative, who is appointed by and answerable to the President, to
implement the Convention in accordance with its agreed-upon terms. The
condition thus reaches beyond the making of the treaty — i.e., delineating the
legal obligations and rights of the parties under the agreement — to the actual
execution of its terms. Because the execution of a treaty is clearly part of the
President’s “executive power” under Article II of the Constitution, we believe
   3 The killing o f fur seals w ithin United States w aters is effectively prohibited by the M arine Mammal
P rotection A ct o f 1972, 16 U .S.C . §§ 1361 et seq , except as authorized under the Fur Seal Act o f 1966, 16
U .S.C . §§ 1151 et seq., w hich w as passed to im plem ent the Fur Seal Convention. Pursuant to § 107 o f the Fur
Seal A ct, 16 U .S.C . § 1157, the Secretary o f State, with the concurrence o f the Secretary o f C om m erce, is
authorized to accept o r reject any recommendation made by the C om m ission under A rticle V, and thereby to
authorize com m ercial fu r seal kills. B ecause recom m endations o f the Com m ission m ust be unanim ous, the
effect o f the reservation w ould be to preclu d e the C om m ission from m aking any recom m endation to the
Secretary o f S tate fo r a com m ercial kill in U nited States w aters.
   4 Indians, A leuts, and E skim os who live o n the coasts o f th e N orth Pacific Ocean are perm itted to take fur
seals fo r subsistence purposes under the te rm s o f the Fur Seal Act and the M arine Mammal Protection Act.
See 16 U .S.C . §§ 1152, 1379.
   5 The S enate has often included “understandings” as part o f its consent to ratification. In general, such
understandings interpret o r clarify the obligations undertaken by a party to the treaty, and do not change those
oblig atio n s. For exam ple, the Senate F oreign Relations Com m ittee has recently approved the Genocide
C onvention, subject to several understandings that set forth the Senate’s interpretation of certain key
defin itio n s in the C onvention, and of the relationship betw een certain other provisions and obligations o f the
U nited States un d er dom estic law. See S. E x . Rep. No. 2 , 99th Cong., 1st Sess. 1 6 ,2 1 -2 6 (1985). The Senate
has included sim ilar understandings as p a rt o f its consent to a num ber o f other treaties. See generally
C ongressional R esearch S ervice, Treaties a n d Other International Agreements: The Role o f the United States
Senate, 98th C ong., 2d Sess. 11, 109-10 (Comm. Print prepared for the Senate Com m ittee on Foreign
R elations, 1984) (C R S Study); S. Rep. No. 2 9 , 97th Cong., 1st Sess. 45 (1981) (SALT II Treaty); S. Rep. No.
47, 96th C ong., 1st Sess. 1 3-25 (1979) (P an am a Canal Treaty).
   6 The S enate m ay, by “reservation” o r “ am endm ent,” condition its consent to a treaty on a revision or
lim itation o f its term s. See generally Restatement o f the Law, Foreign Relations o f the United States
(Tentative Draft No. 6) ( Restatement) § 3 1 3 ; CRS Study, supra, at 109-10. The resolution o f ratification for
the G enocide C onvention, as reported by th e Senate Foreign R elations Com m ittee, would condition the
S enate’s co n sen t to the C onvention on tw o su ch reservations: that the specific consent o f the U nited States is
required befo re any dispute to which the U n ited States is a party may be submitted to the jurisdiction o f the
International C ourt o f Justice, and that n o th in g in the C onvention requires or authorizes legislation or other
action b y the U nited States “prohibited by th e C onstitution o f the United States as interpreted by the United
S tates.” S. Ex. R ep. No. 2, supra, at 1 7-20. R eservations have also been attached by the Senate (or by the
P resid en t) to ratificatio n o f numerous o th er treaties, including the Panam a Canal T reaty, see S Rep. No. 47,
supra , at 2 4 -2 5 and the SA L T II Treaty, see S. Rep. No. 29, supra , at 44 -4 5 . See generally CRS Study, supra ,
at 10 9 -1 0 ; L. H enkin, Foreign Affairs and the Constitution 134 & n. 23 (1972). U nder international law, a
substan tiv e revision to the treaty obligations (w hether characterized as a “reservation” or an “am endm ent”)
m ust be accepted by the o th er contracting states. See Restatement, supra, § 313.

                                                          14
the proposed condition transgresses the “enduring” and “carefully defined
limits” imposed by the Framers on the powers of the coordinate branches. See
INS v. Chadha, 462 U.S. 919, 957-58 (1983).
   The powers of the national government were deliberately divided by the
Framers among three coordinate branches because they considered the concen­
tration of governmental power to be the greatest threat to individual liberty.
“Basic to the constitutional structure established by the Framers was the
recognition that ‘[t]he accumulation of all powers, legislative, executive, and
judiciary, in the same hands . . . may justly be pronounced the very definition
of tyranny.’” Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50,
57 (1982) (quoting The Federalist No. 47, at 300 (J. Madison) (H. Lodge ed.
 1888)). Accordingly, “[t]he Constitution sought to divide the delegated powers
of the new Federal Government into three defined categories. Legislative,
Executive, and Judicial, to assure, as nearly as possible, that each branch of
government would confine itself to its assigned responsibility.” INS v. Chadha,
462 U.S. at 951; see also Buckley v. Valeo, 424 U.S. 1, 122 (1976). The
Supreme Court has long acknowledged that the partitions separating each
branch of government from the others must be maintained inviolable if liberty
is to be preserved. “The hydraulic pressure inherent within each of the separate
Branches to exceed the outer limits of its power, even to accomplish desirable
objectives, must be resisted.” INS v. Chadha, 462 U.S. at 951.
   The Framers recognized nonetheless that the peculiar nature of treaty-mak­
ing warranted a limited exception to the strict separation of powers between the
branches because the negotiation and acceptance of treaties incorporates both
legislative and executive responsibilities:

       [T]he particular nature of the power of making treaties indicates
       a peculiar propriety in that union. Though several writers on the
       subject of government place that power in the class of executive
       authorities, yet this is evidently an arbitrary disposition; for if
       we attend carefully to its operation it will be found to partake
       more of the legislative than of the executive character, though it
       does not seem strictly to fall within the definition of either of
       them. The essence of the legislative authority is to enact laws,
       or, in other words, to prescribe rules for the regulation of the
       society; while the execution of the laws and the employment of
       the common strength, either for this purpose or for the common
       defense, seem to comprise all the functions of the executive
       magistrate. The power of making treaties is, plainly, neither the
       one nor the other. . . . The qualities elsewhere detailed as indis­
       pensable in the management of foreign negotiations point out
       the executive as the most fit agent in those transactions; while
       the vast importance of the trust and the operation of treaties as
       laws plead strongly for the participation of the whole or a
       portion of the legislative body in the office of making them.
                                       15
The F ederalist No. 75, at 450-51 (A. Hamilton) (C. Rossitered. 1961); see also
The F ederalist No. 64, at 390-93 (J. Jay); The F ederalist No. 66, at 402-03 (A.
Hamilton); see generally CRS Study, supra, at 25-28. Rather than vest either
the Congress or the President with the sole power to make treaties, the Framers
sought to accommodate the interests of both, providing that the President shall
make the treaties, but subject to the “advice and consent” of the Senate.7
   In practice, the Senate’s formal participation in the treaty-making process
has been to approve, to approve with conditions, or to disapprove treaties
negotiated by the Executive.8 Although the Senate’s practice of conditioning
its consent to particular treaties is well-established, its authority is not unlim­
ited merely because it may withhold its consent.9 The general principle that
Congress cannot attach unconstitutional conditions to a legislative benefit or
program merely because it has authority to withhold the benefit or power
entirely applies equally to the Senate’s advice and consent authority.10 For
example, the requirement that the Senate consent to appointments of executive
officers does not, by inference, empower the Senate to exert control over the
removal of officers once approved. See M yers v. United States, 272 U.S. 52,
126 (1926).11 The Senate cannot use its advice and consent power to alter the
constitutional distribution of powers or to impair constitutionally protected
rights, any more than the President and the Senate together can override the
requirements of the Constitution:
           [N]o agreement with a foreign nation can confer power on the
           Congress, or on any other branch of Government, which is free
           from the restraints of the Constitution.
                                            *            *            *

           The prohibitions of the Constitution were designed to apply to
           all branches of the National Government and they cannot be
   7 A rticle II, § 2, cl. 2 o f the Constitution provides in part that the President “shall have Power, by and with
the A dvice and C onsent o f the Senate, to m ake Treaties, provided two thirds of the Senators present concur."
   8 P resident W ashington attempted to co n su lt with the Senate, with lim ited success, on the negotiation of
several treaties w ith the Indians. By 1816 th e practice had becom e so firm ly established that the Senate would
grant its “advice and consent” to treaties alread y negotiated by the President or his representatives. See CRS
Study, supra , at 3 4 -3 6 ; L. Henkio, Foreign Affairs and the Constitution , supra, at 131-32.
   9 T he S enate adopted a resolution advising and consenting to the T reaty of 1797 w ith Tunis on condition
that a certain article be suspended and renegotiated. The S enate later gave its advice and consent to the treaty
and tw o o th er articles after they had b een renegotiated. C RS Study, supra , at 36. The Supreme C ourt has
recognized the validity o f the practice, b u t has never delineated the o u te r limits o f the Senate’s pow er to
condition its consent. See Fourteen Diamond Rings v. United States , 183 U.S. 176, 182 (1901) (Brown, J.,
concurring); Haver v. Yaker, 76 U.S. (9 W all.) 32, 35 (1869).
   10 F o r exam ple. C ongress could, if it ch o se, bar aliens from our shores, but could not admit them under
conditions w hich deprive them of constitutional rights such as the right to a fair trial. Wong Wing v. United
States , 163 U .S. 228, 237 (1896).
   11 S im ilarly, the Senate m ay not use its advice and consent pow er with respect to treaties to impose
conditions affecting only the domestic asp ects o f a treaty. See Power Authority v. Federal Power Comm'n ,
247 F.2d 538 (D.C. C ir.), vacated as moot , 355 U.S. 64 (1957). The S enate could not, for exam ple, condition
its consent to the C onvention on a p rovision depriving the Secretaries of State and Commerce o f their
authority u n d er the Fur Seal Act to adopt recom m endations o f the C om m ission. Such a condition would in
effect am end the existing statutory discretion o f those Executive Branch officers, and could be accom plished
only through plenary legislation. See INS v. Chadha, 462 U .S. at 9 52-54.

                                                        16
           nullified by the Executive or by the Executive and the Senate
           combined.
R eid v. Covert, 354 U.S. 1, 16-17 (1957). See also Geofroy v. Riggs, 133 U.S.
258, 267 (1890); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21
(1871); Fourteen Diamond Rings v. United States, 183 U.S. at 183 (1901)
(Brown, J. concurring).
   Thus, it is critical that the “JOINT AGENCY of the Chief Magistrate of the
Union, and of two-thirds of the members of the Senate” 12 embodied in Article
II, § 2, cl. 2, extends only to the making of treaties, i.e., the negotiation and
agreement with other nations as to the legal obligations and rights of the
parties. Nothing in the text of the Constitution or the deliberations of the
Framers suggests that the Senate’s advice and consent role in the treaty-making
process was intended to alter the fundamental constitutional balance between
legislative authority and executive authority. In fact, the Framers included the
Senate in the treaty-making process precisely because the result of that process,
just as the result of the legislative process, is essentially a law that has “the
effect of altering the legal rights, duties and relations of persons .. . outside the
Legislative Branch.” INS v. Chadha, 462 U.S. at 952.
   Under the Constitution, only the President is given the “executive power,”
and is charged with the specific responsibility to “take Care that the Laws be
faithfully executed.” U.S. Const, art. II, §§ 1 and 3. It is indisputable that
treaties are among the laws to be executed by the President,13 and that “the very
delicate, plenary and exclusive power of the President as the sole organ of the
federal government in the field of international relations,” which necessarily
includes fulfilling obligations under international agreements or treaties, is part
of the executive power. See United States v. Curtiss-W right Export Corp., 299
U.S. 304, 320 (1936); see also Haig v. Agee, 453 U.S. 280, 291-92 (1981);
Chicago & Southern A ir Lines v. Waterman S.S. Corp., 333 U.S. 103, 190
(1948).
   The condition proposed by the staff of the Senate Foreign Relations Com­
mittee would strike at the heart of the President’s executive prerogatives.
Absent such a condition, the United States representative to the Fur Seal
Commission would be free to follow the directions of the President in evaluat­
ing the complex questions that come within the jurisdiction of the Commission.
The proposed condition, however, would eliminate that discretion with respect
to two issues likely to come before the Commission. Such a limitation on the
discretion of the President’s representative — a limitation that takes effect only
after the scope of the legal obligations of all parties has been agreed upon14 —
   12 The Federalist No. 66, at 406 (A. H amilton) (C. R ossiter ed. 1961).
   13 A rticle VI, cl. 2 o f the C onstitution provides in part that “all Treaties m ade, o r which shall be made, under
the A uthority o f the U nited States, shall be the supreme Law o f the Land.” The President’s constitutional duty
under A rticle II extends to treaties as w ell as to statutes and the C onstitution itself. See In re Neagle, 135 U.S.
1, 64 (1890); 1 Op. A tt’y Gen. 566, 570 (1822).
   14 The condition is thus different from a reservation that w ould seek to lim it the legal authority o f the
C om m ission to consider recom m endations for com m ercial fur seal kills within U nited States waters, or for
                                                         Continued

                                                          17
would directly undercut the President’s authority “as the sole organ of the
federal government in the field of international relations.” The Senate cannot
constitutionally impose such a condition to its consent to ratification of a
treaty, any more than it could consent to the appointment of an ambassador on
the condition that the ambassador refrain from taking certain positions in
negotiations or discussions with his designated country. See generally M yers v.
United States, 272 U.S. at 126; 3 Op. Att’y Gen. 188, 189-90 (1837).

                                                                      C harles       J.   C ooper
                                                                 A ssistant Attorney General
                                                                   Office o f Legal Counsel




  14 ( . . . continued)
subsistence harvests on the Pribilof Islands. Such a reservation would be consistent w ith the constitutional
separation o f pow ers, as it would be a leg itim ate exercise o f the treaty-m aking pow er to define the legal
obligatio n s and rights o f the parties, prior to conclusion o f the treaty. O f course, any such reservation would
have to be subm itted to the o th er parties fo r their agreem ent prior to taking effect. See supra note 6.

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