Prospective Advice and Consent

Treaty-making in the United States follows a well-worn track: the President negotiates and signs; the Senate gives advice and consent; and the President ratifies. This Article argues that the order of the first two steps is not constitutionally determined and should be reversed under certain circumstances. As text, historical context, and evolving practice demonstrate, the Treaty Clause gives the President and the Senate the flexibility to determine the timing and specificity of the Senate’s advice and consent. The present system of advice and consent after negotiation and signature limits the number of treaties that can be made under the Treaty Clause, slows the entry into force of even minor treaties, and leads to intentionally endless delays (amounting to outright deaths) for major multilateral ones. By having broad-brush advice and consent precede treaty negotiation and signature, the United States could greatly improve the efficiency of its treaty-making process and increase its negotiating power at the international level.