Posted on 05/06/2003 11:43:43 AM PDT by follow the money
Yeah, the court's ruling on the hearing is pretty goofy.
But I'm not sure that it matters much.
The guy was convicted of 2nd degree robbery afterall.
If he doesn't want to be deported, fine. Just toss his butt in jail for the 5~10 years (or whatever the max is) for the crime he's convicted of.
Seems better than turning him loose with his freedom in another country.
They do in California, ask Bob Dornan. They do anything they want to here in the golden state, in fact, they're outnumbering us!
Are you suggesting that treaties must be followed even though they:
(1) have not been ratified and have no laws of enforcement or penalties have been passed by the Senate?
and (2) even if ratified, that they must be followed even though no laws of enforcement and penalties have been passed by the Senate?
In any case, (on a side issue) do you believe that the laws of treaties supersede the Constitution/Bill of Rights?
“This nation’s credibility would be weakened by non-compliance with treaty obligations or with international norms. The United States seeks to impose international law norms--including, notably, those on terrorism--upon other nations. It would seem strange, then, if the government would seek to avoid enforcement of such norms within its own borders.”
And then comes the real doozie:
“If the statutes are not so interpreted, then in this instance treaties and international law override the statutes and require such a hearing.”
My friends, we are entering completely uncharted territories of hubris.
Once ratified by the Senate, treaties ARE US law, as pointed out in #7. Perhaps you meant treaties signed by the President but not ratified by the Senate, in which case I agree with you.
If a treaty has been ratified by the Senate, then the Judge is correct in so far as treaties, but not international law, are concerned. Treaties override laws, that much is plain. I don't like that because it allows for no change of mind. It's the only way a Congress can bind future Congresses.
Heck even the Constitution can be amended. I think a couple of such amendments, or one with a couple of provisions, are needed. One provision be that ratification of treaties must be by recorded vote of BOTH houses, not just the Senate and by the same supermajority required to pass a Constitutional amendment. The second provision being that by the same supermajority vote of BOTH houses and upon signature by the President, the United States be able, as a matter of domestic law, to overide any provision of a treaty or may withdraw from the treaty completely.
I don't think the original authors ever envisioned treaty provisions would affect individual citizens, nor attempt under color of "treaty" to overide Constitutional provisions, as they can today. This oversite needs to be corrected. Some say treaties even override the Constitution itself, but a close reading of the applicable provisions indicates this not to be the case, although they may override state Constitutions.
I don't see where it says that treaties can bind future Congresses. My reading of the Constitution is that they can overturn treaties at will.
From Article VI:
"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"
You're right, of course. I stand corrected.
Their contention is off-target.
Ratification of a treaty is writing that treaty into law.
After re-reading the first few clauses of Article VI, this is a question that immediatly jumped to mind. It does appear to me that treaties can violate the Constitution.
"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"It doesn't say that treaties must abide by the Constitution. I guess it depends on what exactly "the Authority of the United States" means. I would think it simply means a treaty signed by the President and approved by the Senate. In which case it seems that any treaty passed by the Senate (and signed by the President) has equal bearing with the Constitution itself. Obviously, this is very, very bad and should definatly be changed.
I'd be very interested in hearing which provisions more clearly define this, or is it simply implied from the powers relegated to and against the government. In the latter case, it's only a matter of time before it is ignored. I'd hate to see a liberal President and a liberal Senate agree to a "Handgun Disarmament Treaty", or something of the sort.
That would be good, but can you elaborate? What part or parts of the Constitution do you base that statement on? Upon further review of the parts of the Constitution concerning treaties,
Art II sec 2 para 2
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;...
Art III sec 2
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--
Art VI para 2
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.
it's not clear if treaties override federal laws or not. If they do not, then of course Congress could just pass a law abrogating the domestic impact of any treaty.
Art VI para 2 goes most directly to the question, and is silent on the question of surpemacy of treaties over laws. It has however been interpreted to allow treaties to confer powers on the federal government over and above those granted by the Contitution, and that is clearly not a correct reading, IMHO, since the only valid treaties are those made "under the authority of the United States", which cannot have any auhority not granted by the Constitution.
I base it on the fact that Congress is the supreme legislative authority in the country, and that treaties are acts of legislation, according to Article VI that you posted. The only reason they're not created in the same manner as other types of legislation, has to do with the logistics of treatymaking (for example, the necessity for efficiency and secrecy), not with the notion that the House of Representatives aren't considered competent enough to handle such affairs. If they're competent to declare war, and they're competent to pass all kinds of other complex legislation that in many cases impacts upon foreign relations, then they're certainly competent to pass judgment on treaties.
And as nothing in the Constitution stipulates that Congress may not override treaties, then the most natural reading, as far as I can see, would be that they may.
It has however been interpreted to allow treaties to confer powers on the federal government over and above those granted by the Contitution, and that is clearly not a correct reading, IMHO, since the only valid treaties are those made "under the authority of the United States", which cannot have any auhority not granted by the Constitution.
Actually, that interpretation you refer to goes back to the beginning. There were all kinds of issues surrounding foreign relations that don't relate to specific grants of power found elsewhere in the Constitution, such as property rights of foreign subjects here in the U.S. Then, of course, there's the Louisiana Purchase, which was not done in pursuance of any specific power granted to Congress.
The precedent even goes back before the Constitution. Under the Articles of Confederation, Congress was never given any specific power over foreign trade, yet it was understood that they could make commercial treaties with other countries.
That said, I'd agree that treaties are restricted from violating the Constitution, but that doesn't necessarily mean that they're restricted to the specific grants of power found therein. I elaborated on this a little further at the bottom of Post 37.
The courts have, however, (correctly, in my view) ruled that they may not go beyond the actual prohibitions contained in the Constitution.
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