The Supreme Court decision upholding the constitutionality of the Enhanced Defense Cooperation Agreement was in essence a realistic recognition of the executive’s prerogative to enter into international agreements. That the Edca would allow more American troops to be stationed temporarily in more military bases in the Philippines as a counterweight to Chinese expansionism in the West Philippine Sea was only a secondary consideration. The realpolitik behind the Edca, however, exactly has it the other way. The Aquino administration entered into the executive agreement precisely because, in its calculus, the country needed greater American military presence.
“No court can tell the President to desist from choosing an executive agreement over a treaty to embody an international agreement, unless the case falls squarely within Article 18 Section 25,” the Supreme Court ruled, referring to the exception provided in the Constitution regarding “foreign military bases, troops, or facilities.”
“In the field of external affairs, the President must be given a larger measure of authority and wider discretion, subject only to the least amount of checks and restrictions under the Constitution.”
That seems to be the right reading, in light of both history and jurisprudence. In foreign policy, the executive has always enjoyed a “larger measure of authority” and “wider discretion”—in contrast with domestic policy, for instance, the use of budgetary allocations such as congressional pork barrel, which the executive used to employ, until it was struck down by the Supreme Court.
And yet we cannot help but think that the Supreme Court failed to consider the case in all its dimensions. The real purpose of enhanced cooperation with the United States is to help the Philippines project a stronger, more credible military position in the West Philippine Sea. This is not in itself an unconstitutional initiative or even a necessarily controversial policy.
As we have written in this space more than once, the Aquino administration has the public’s support for its multilevel approach to the Chinese government’s expansion into the West Philippine Sea. But the same public is aware that there are real risks to confronting China, whether in the international courts or in increasingly fraught encounters at sea. Or, indeed, in enhanced military cooperation with the United States.
Given the risks, and the stakes, it would have been better for the Senate to have gotten involved, precisely as a means for the public to make itself heard. In fact, the Senate passed Resolution 105, affirming that the Edca was a treaty and that, therefore, and as the Constitution provides, at least two-thirds of the Senate must approve it before it can take effect.
We had hoped that the Court would see it the Senate’s way. Such a decision would not have been a repudiation of the policy itself, but rather a remedy that would have allowed the Senate to take its mandated part. It wouldn’t have been a political question, at least as pre-1986 jurisprudence understood that term, because the Constitution allows the Court to intervene even in political questions on the grounds of abuse of discretion.
Instead of supporting the Aquino administration’s discretion in “choosing an executive agreement over a treaty to embody an international agreement,” the Supreme Court should have forced the issue and obliged the executive to court the support of the Senate. The risks and stakes of enhanced military cooperation with the United States demanded it. And the executive’s calculated refusal to do so, given precisely the risks of increased confrontation with China and with the future of Philippine maritime claims at stake, should have been judged an abuse of discretion.
But, with its 10-4 decision, the Court has enabled a process that will dramatically increase the presence of American military personnel and hardware in the Philippines—against the intent of the Constitution it is the guardian of—without a single debate in the Senate. Realpolitik.
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