The Importance of Categories

I think that the debate that is going one amongst myself, James Joyner and Brett Marston needs some clarification.

While the specific topics are treaties v. trade agreements and the judicial nomination process, there are two general issues here that need clarification, one is a matter of empirical fact, the other a matter of normative judgment.

It is an empirical fact that Congress created a legal category called “trade agreements” via first “Fast Track” and now “Trade Promotion Authority” and that legal category is distinct from Treaties as discussed in the Constitution.

Now, one can argue that this oughtn’t be the case—that it violates the spirit (or even the letter) of Article II in regards to treaties. I am not actually attempting to argue, per se, that trade agreements should or should not exist, but rather simply that they do.

One can say that “well, they really are treaties in all but name” and in some ways I would have to agree. However, categories matter: trade agreements are negotiated differently than treaties, are more limited than treaties, and are approved differently from treaties. As such, the politics of one are different than the politics of the other, as are the institutional constraints. As such, it matters greatly to get the categories correct if one is seeking understanding of the issues at hand.

It is like a comment Brett made yesterday about the Viet Nam war and the usage of phrases like “police action” to describe them. On the one hand, he has a point--two sides shooting at one another sure looks like a war. However, there is significance to the fact that we haven’t actually declared war on anyone since WWII, despite conflicts in Korea, Viet Nam, and Iraq, to name the most prominent examples.

This fits into the broader argument about judicial nominations because Brett constructs an argument that the Democrats are within their rights to use the filibuster, as a cloture is distinct from the confirmation vote. Here is a prime example of why categories matter. Many Republicans are arguing that since the lack of cloture (i.e., official end of debate on the nominees) has the effect of stopping the nomination, it is the same thing as requiring that the confirmation vote be a supermajority. Brett has pointed out that these are two separate votes for two separate issues. I concur, as I stated yesterday.

I do agree that these issues raise important questions about original intent. However, I would reject the argument that the weakening of the treaty category somehow means all adaptation is acceptable. I tend in the “Strict construction” direction, but am more pragmatic about the fact that there are informal changes to the Constitution than some others in that camp. I do think that the place to start is one of looking at original intent, however.

In regards to the filibuster of the nominees issue, I think that, in fact, this is not an issue of subverting the Constitutional order, but is a legitimate usage of the rules by the Democrats, no matter how annoying it may be to the Republicans, and therefore this is really a different debate than the TPA v. treaties issue. One is about the internal rules of a specific chamber, the other is about what kind of power Congress as a whole has vis-à-vis treaties. Of course, by focusing on the rules of the Senate, I think that it does open a legitimate door for the “nuclear option”-no matter how annoying it may be to Democrats.

Posted by Steven Taylor at June 11, 2024 11:02 AM | TrackBack