The New Sovereignty and the Old Constitution: The Chemical Weapons Convention and the Appointments Clause
![handle is hein.journals/ccum15 and id is 95 raw text is: THE NEW SOVEREIGNTY AND THE OLD
CONSTITUTION: THE CHEMICAL
WEAPONS CONVENTION AND THE
APPOINTMENTS CLAUSE
John C. Yoo*
A noted scholar on foreign affairs law has declared, [n]o
provision in any treaty has been held unconstitutional by the
Supreme Court and few have been seriously challenged there.1
The Constitution appears to subject treaties and executive
agreements to the same limitations that apply to all other ac-
tions of the federal government.2 Further, the first principles of
constitutionalism seem to dictate that the federal government
cannot evade the Constitution simply because it acts through the
process of presidential ratification and senatorial consent, rather
than through bicameralism and presentment? Nonetheless, the
Supreme Court's record on foreign relations is littered with
cases in which the Court arguably stretched the law in order to
* Acting Professor of Law, University of California at Berkeley School of Law
(Boalt Hall). A.B., Harvard University; J.D., Yale Law School. I would like to thank
Akhil Amar, David Caron, Jesse Choper, John Dwyer, Jack Goldsmith, John Manning,
Paul Mishkin, Robert Post, and Cornelius A. Vermeule for reading various versions of
the manuscript, and Dick Buxbaum, Susan Davies, Mike Glennon, Stephen Higgins,
Mike Hirshland, Laurent Mayali, Sai Prakash, and Ron Rotunda, for helpful discussions.
Financial support for the research was provided by the University of California at Ber-
keley Committee on Research and the Boalt Hall Fund. The ideas in this article stem
from testimony the author delivered in hearings before the Senate Subcommittee on the
Constitution, Federalism, and Property Rights concerning the constitutionality of the
Chemical Weapons Convention. I would like to thank Elsa Arnett and Chris Yoo for
their support.
1. Louis Henkin, Foreign Affairs and the Constitution 7 (Foundation Press, 1972).
Events of the last 25 years have not changed the truth of this observation. See Louis
Henkin, Foreign Affairs and the Constitution 185 (Oxford U. Press, 2d ed. 1996).
2. See Reid v. Covert, 354 U.S. 1 (1957) (Constitution bars court martial of civil-
ian spouses who murdered servicemen-husbands).
3. As Justice Black wrote no 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 nullified by the Executive or
by the Executive and the Senate combined. Id. at 16-17.](ViewImageLocal?handle=hein.journals/ccum15&div=13&collection=&method=preview&ext=.png&size=3)
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The New Sovereignty and the Old Constitution: The Chemical Weapons Convention and the Appointments Clause
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