House Debating the Constitutionality of Presidential Termination of Treaties

CSPAN ^ | 6-6-2002 | Huck

[Huck]

Maybe I am crazy, but I find this fascinating. Say what you will about Jerry Nadler debating Constitutional limitations of power, it does show that despite what people say, the Constitution does still matter. Incidentally, the neo-rebs might be interested to know who the first President was to terminate a treaty without the consent of Congress: You get one guess.

[Huck]

Does this interest you at all? Incidentally, upon a cursory examination, and having listened to the debate, I find the GOP argument weak. It is clear to me that both sides are biased by their attitude towards the ABM treaty. However, it seems to me the most compelling argument, and perhaps the most republican, is that the Constitution does say that treaties are laws, and the power to repeal laws resides in both</> houses of Congress combined.

[Real Cynic No More]

"Incidentally, the neo-rebs might be interested to know who the first President was to terminate a treaty without the consent of Congress."

Unless I am mistaken, the treaty was never ratified. If so, the treaty was not in effect from a legal standpoint anyway, but was only a voluntary issue. So the president terminating it gives the Senate no standing.

Are these libs conceding that the President may make a treaty enforceable if they never ratified it???

Congress does so many things like this, leaving the ball up in the air, then tries to take credit: such as not declaring wars when they have an obligation to do so.

[mlo]

The ABM treaty was ratified, but it contains an escape clause which Bush used. Since the treaty is the law of the land the escape clause it contained was law too, and Bush needed no further authority, as long as he followed the procedure the treaty outlined.

[Lurking Libertarian]

Unless I am mistaken, the treaty was never ratified.

No, you're thinking of the International Criminal Court treaty, which was signed but never ratified. This is about the 1972 ABM Treaty, which was ratified by the Senate.

[hchutch]

If this is a guy from Ohio, I bet it's Kucinich (spelling may be off). A REALLY left-wing Democrat. Knocked off Martin Hoke in `96.

[Huck]

The ABM treaty was ratified, but it contains an escape clause which Bush used. Since the treaty is the law of the land the escape clause it contained was law too, and Bush needed no further authority, as long as he followed the procedure the treaty outlined.

Here is the so-called "escape clause", from the ABM Treaty:

. Each Party shall, in exercising its national sovereignty, have the right to withdraw from thisTreaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to the other Party six months prior to withdrawal from the Treaty. Such notice shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests.

So, who are the parties to the treaty? Is it your contention that President Bush is a party to the treaty? If so, you are mistaken. Look at the first sentence of the actual treaty:

The United States of America and the Union of Soviet Socialist Republics, hereinafter referred to as the Parties,

In fact, wasn't it the argument of many conservatives that one of the parties, the USSR, no longer exists, and therefore, the treaty is null and void? Or is Vladimir Putin the other party? You can't have it both ways. It seems to me, though I don't know if it is anywhere in writing, that the US has continued the treaty with Russia, as if it were the other party. IMO, the argument that the disolution of the USSR nullified the treaty has some merit. At least I am not aware of the counterargument. But you simply can't argue that the treaty provides for the President of the US to withdraw on his own. It doesn't.

[Huck]

That's who it was. While they will lose this argument due to numbers, it seems to me---hard to believe I know---the lefties were correct in their argument. It just goes to show that in politics, the ends justify the means.

[bloggerjohn]

USSR or Russia, I will invoke the hallowed principle that the treaty follows the nukes ;')

[conservatism_IS_compassion]

I guess I glaze over pretty easily when a writer has two hands--"on the one hand", but "on the other hand."

It seems scary, and in a real sense illogical, but when I see the term "supreme law of the land" I think, "Constitution." Clearly nobody intended, let us hope, that the president and the Senate alone could modify the First Amendment (for example) without so much as a by-your-leave from the States. But that's what pops into my head.

OTOH it would seem that if a treaty is in fact a "law" it would be backed by Congress as well as the president. Yet the House has no role in treaty making, and the president is alone responsible for foreign policy unless a treaty is to be ratified. But what is a treaty with the US, if a new president can on his word alone abrogate it six months after the signing/ratification? Some "supreme law"!!

This whole issue is quite similar to the war powers issue: it's gotten to the point where presidents who feel like fighting--or, say, bombarding asperin factories--just do it. The role of the Congress is much attenuated. But if the Congress did ever declare war, what role would it have in terminating that emergency state?

Worst of all, of course, is the nonsequeteur known as the 17^th Amendment, which converted the Senate from representatives of the States to representatives of the people of the states. The whole rationale of the Senate was, after all, to represent the State governments; now it's just a funny way of districting a second house of the legislature. And, since no State may be deprived of its equal representation in the Senate without its consent, it really required unanimous consent of the states to properly ratify that amendment.

Which gets me onto one of my hobby horses, the fact that the Senate would do its job better if it conducted its business electronically from the respective State capitols . . . and then you wouldn't need seperate elections for Senators; each State could be represented by its own Governor.

Then if a president were impeached he would be judged by a jury of his peers--and if a judge were nominated or impeached, that judge's respect for the States' prerogatives would be taken into consideration much as it was before the states allowed the 17^th Amendment to be implemented.

There really should be some change in the Constitution (or at the very least a landmark Supreme Court precedent) to reflect the lessons we should have learned from the machinations of x42 . . .

[hchutch]

I disagree. I think that the execution of foreign policy is left to the Executive Branch for the most part, IMHO.

[Huck]

Regarding the dissolution of the USSR, I found this blurb from BBC News:

Following the 1991 dissolution of the Soviet Union, Belarus, Kazakhstan, Russia and Ukraine ratified the treaty and took on its obligations.

The Heritage Foundation chimes in here:

THE ABM TREATY WITH RUSSIA: THE TREATY THAT NEVER WAS

A much better argument, and interesting to read, but not related to the question of how treaties may be terminated under the Constitution. I believe, based on my reading of the arguments, that Congress should do it.

[Huck]

I think that the execution of foreign policy is left to the Executive Branch for the most part, IMHO.

But you won't find that in writing. It is an "implied" power, whereas the power to make treaties is specifically limited, and the status of treaties as "law" is explicitly expressed.

[Huck]

The Supremacy clause is pretty clear:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Treaties, therefore, are laws. That's the first part of the argument. Next we go to the "necessary and proper" clause in Article One: The Legislative Powers:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

So what power does the President have to make treaties?

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur;

That's all. If memory serves me, President Bush professes to be a strict constructionist. Not in this case, he isn't.

[hchutch]

The President can take a foreign policy action. If Congress does not like it, they can pass a law or Joint Resolution prohibiting such actions, subject to the President's veto.

[Huck]

The President can take a foreign policy action.

Can you show me what Constitutional power you are referring to? I can't find it.

[Huck]

This whole issue is quite similar to the war powers issue: it's gotten to the point where presidents who feel like fighting--or, say, bombarding asperin factories--just do it.

I think this is one of those "foreign policy actions" hchutch is granting to the Presidential power.

[general_re]

I'm with you - I've never found the Article II/Curtiss-Wright argument to be particularly persuasive. It seems clear to me that if the making of a treaty requires Senate approval, then Senate repeal ought to be a component of withdrawing from treaties. The executive does not have the power to unilaterally withdraw the US from treaties, IMO.