The Senate's Pie-in-the-Sky Treaty Interpretation: Power and the Quest for Legislative Supremacy

Abstract

JR.ttt ' Professor Rostow in his article Once More Into the Breach: The War Powers Resolution Revisited, 21 VAL. U.L. REV. 1, 2 (1986), termed modern advocaters of legislative supremacy, particularly in the field of foreign relations, "ultra-whigs," a term he credits to Edward Corwin. 4 Koplow, supra note 1, at 1357. Koplow compounds the problem by observing that "[tireaty law is a classic example of Justice Jackson's second category, the 'twilight zone' of concurrent, uncertain Executive and Legislative authority and shared functions." Koplow, supra note 1, at 1394 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)). In fact, both political branches have very clear and distinct treaty-relevant powers and the "twilight zone" in this area exists only in the minds of those arguing for increased legislative prerogatives, dissatisfied with the constitutionally-mandated allocation of powers. I See generally E. CORWIN, THE PRESIDENT'S CONTROL OF FOREIGN RELATIONS (1917) (describing the structural role of the presidential veto and the advice and consent function of the Senate in the scheme of separation of powers).