Is The Pending Deal With Iran Over Its Nuclear Program A Treaty – Or Not? – Guest Essayist: Colin Hanna

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Is the pending deal with Iran over its nuclear program a treaty – or not?  What powers does the Constitution give the President, and what powers does it give the Senate?

There are three places in the Constitution that address treaties with other nations.  The first is the most relevant to this discussion.  It is easy to recall where it is: just remember the numbers 2-2-2: It is Article II, Section 2, Clause 2. [The President] “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 clearly makes a treaty conditional upon the concurrence, or affirmative vote, of two thirds of the Senators voting.  Both the President and the Secretary of State are former Senators, presumably well-acquainted with that stipulation.  So on what basis can they claim that Senate approval of this proposed deal is not required?

Before answering that central question, let’s examine the other two places in the Constitution mentioning treaties.  The second instance is in Article III, the article that deals with the judicial powers of the Supreme Court.  The portion of that Article that references treaties reads: “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 …” This does not define a treaty, but it clearly establishes the Supreme Court’s power over treaties.  This could prove critical if a case came before it claiming that a treaty was made that was not in accordance with the Constitution.

The third instance in which the Constitution mentions treaties is in Article VII, Clause 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…”   This has the effect of elevating valid treaties and laws to the same “supreme Law” status as the Constitution, meaning that individual States cannot abrogate validly made laws and treaties.  It’s not really relevant to the Iran nuclear deal, because no State in the 21st century is likely to try to assert that a treaty does not apply to it, although at the time of adoption of the Constitution, that was a genuine concern.

Because a treaty is almost always an agreement between two nations, it has gradually been accepted over the years since our Constitution was adopted that a treaty is subject to international law.  That’s where the subject at hand becomes complicated. If our Constitution is indeed the “supreme Law of the land,” then there can be no superior authority. The Federal Judicial Center (www.fjc.gov) attempts to resolve this in a document worth reading, called Treaties as Law of the Land (www.fjc.gov/public/pdf.nsf/lookup/intl0627.pdf/$file/intl0627.pdf). A simplified reduction of its argument is that in the case of international agreements entered into by the United States, our Constitution takes precedence over international law, but only when a clear conflict occurs between the two.  Thus our definition of a treaty is narrower than is the definition under international law. This gives rise to some confusion, especially if an American President signs a treaty that is then subjected to the Senate for ratification and fails to achieve it.  Other nations citing the principles of international law may claim that the treaty became binding upon the President’s signature, as would be the case with the signature of most other heads of state.  Yet in the case of the United States, our Constitution appears to invalidate any treaty that the Senate votes down.

Beginning in the 19th century, another practice began of our making international agreements that were something less than a treaty, and thus did not require Senate ratification.  The lines of demarcation between what is a treaty and what is not have become so murky that the only workable distinction is that an international agreement is considered in this country to be a treaty only if it has been ratified as a product of the advice and consent of the Senate as spelled out in our Constitution, and merely an “executive agreement” by the President when it has not.  If it is an “executive agreement,” however, it is in force at the pleasure of the executive, and that executive may cancel the agreement at any time – which is especially likely when a new executive, or President, takes office.  This is the point that the 47 U.S. Senators made in their letter to Iran’s Supreme Leader – and it is a valid point unique to the United States.

Given that neither the former Senator negotiating the treaty as our Secretary of State nor the former Senator directing those negotiations as President appears to want to submit the Iran nuclear deal to the Senate as a treaty for ratification, which would clearly give it greater force, it is logical to conclude that they fear that it would not pass.

The latest twist in this tortured process is the possibility raised by Presidential spokesman Josh Earnest that the agreement may not even be put in writing.  If that turns out to be the case, then not only will it not be a binding treaty on the United States, it won’t be worth the paper it isn’t written on.

Colin Hanna is the President of Let Freedom Ring, a public policy organization promoting Constitutional government, economic freedom, and traditional values. Let Freedom Ring can be found on the web at www.LetFreedomRingUSA.com.

Click Here to Read More Essays From This Year’s 90 Day Study!

8 replies
  1. Joseph R. Harrah
    Joseph R. Harrah says:

    Thank you for pointing out the fact that both the president and the secretary of state were senators. This is an obvious truth which is forgotten by many. In my opinion, they both should know better.

    Thank you for this study. I’m looking forward to learning more.

    Joseph R. Harrah

    Reply
  2. Roger Laux
    Roger Laux says:

    The study explores in well spoken terms, what the intent and purpose of the Constitution’s definition and restriction for the three branches when it pertains to Treaties. These thoughts, definitions, and practices were the guides that have stood for over 200 years. The problem arises from various avenues; complacency, corruption, lawyer twisted arguments, the “overreach” of our three branches of Government, and a fundamental flaw of personal power vs. the principles of our Constitution. Knowing and understanding the Supreme Law of the land is a start, however the lack of principle and self centered partisan politics is very rapidly diminishing and redefining the term “Supreme Law”. Stopping the madness should not be a brave thing to do, it should be the only option for the people we have elected and serve “to protect and preserve” our Constitution of the United States of America.

    Reply
  3. barb Zack
    barb Zack says:

    I’m so excited that you have started another 90/90 study. Eagerly awaiting this one. The Alinskytes attempting to negotiate this deal are deceitful and dishonest to say the least. If they do not submit this deal to the Senate as they should, then I believe our Nation is being sold out.

    Again, thank you SO much for bringing back these studies and I look forward to each and every one!

    Reply
  4. Richard Moore
    Richard Moore says:

    Whether it is a treaty or an Executive Agreement; the Constitution is the supreme law of the land. In Reid v. Covert, 354 U.S. 1 (1957) about an Executive Agreement that violated a U.S. citizen’s rights. “No agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” In this decision, the Supreme Court also affirmed the supremacy of the Constitution over any treaty approved by the Senate in its decision.

    Reply
  5. Robert F. Altman, AE1, USN(Ret)
    Robert F. Altman, AE1, USN(Ret) says:

    I can only wish that everyone would take the time–not a whole lot required–to go through this. All this was taught in 9th grade Civics class when I was in high school, and was a REQUIRED class for everyone.

    Reply
  6. Vikki Arneault
    Vikki Arneault says:

    If real civics and history instead of the revised versions over the last 4 decades, our nation would have never stood for this hijacking of our Constitution by our elected officials nor the cowardice by those who should know it not to keep the law of the land pure. Our citizen has grown lazy about holding our leaders accountable and the runaway legislating from the bench have made it worse. Our early founders and leaders warned us about this very thing. Now is the time to act or we will be like the Jews of Germany who kept quiet and followed blindly until they were so entrapped or exterminated. Wake up America!

    Reply
  7. Ralph Howarth
    Ralph Howarth says:

    The federal Constitution actually uses an older term for International Law a.k.a. “Law of Nations”. International Law has progressed since then that treaties first have signatories who sign a treaty and bring it back to their own country for the treaty to have affect. Home countries then typically ratify treaties nowadays as the days of monarchical heads of state who used to have central authority to make treaties have diminished over the centuries. As treaty ratification has become common place among modern democracies, diplomats come to understand the difference between signatories and ratified treaties. Then their is a third leg of treaties required to have affect in home countries by the passing of statutory laws a.k.a. “Municipal Law”. We tend to associate the term “municipal” with that of local city ordinances and laws; but in International Law, nationwide statutory or constitutional laws are classified as Municipal Law. If a state fails to pass Municipal Law, or simply does not even have the authority to pass a law such as unconstitutional laws, then the state is considered to have failed to honor, and therefore broke, the treaty.

    Reply
  8. Paul Hodson
    Paul Hodson says:

    A good opening essay, addressing a timely subject.

    I believe it’s also worth mentioning that when the Constitution was written, and ratified, the role of the Senate was seen much differently than it is today. The 17th amendment radically altered the relationship between the states and the federal government, to the detriment of the states.

    Alexander Hamilton’s Federalist #75 is worth a reread on the subject of treaties as well. Here are some highlights:

    “Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.”

    “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”

    “It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them.”

    But in conclusion, it’s all well and good to be informed about what/how the Constitution is being violated, but what are “We the People” going to do about it? Do we really believe that educating and voting in the right people is going to correct course quickly enough? “Another practice” began in the 19th century. Are we to just accept that tradition, practiced by Republican and Democrat alike, now trumps the Constitution? “(N)o State in the 21st century is likely to try to assert that a treaty does not apply to it”. The ideas of nullification and interposition are powerless when it comes to the people having a voice to oppose a treaty, or executive action regarding a foreign country, or whatever the current executive wishes to call it (see Hamilton above, it’s a CONTRACT with foreign nations, his emphasis, not mine).

    There is a Constitutional solution, in Article V, the amending article proposed by the framers. The states, collectively, have the authority, and the duty, to course correct an overreaching federal government. Whenever two-thirds of the states apply, for the same subject, to amend the Constitution, Congress “shall” call a “convention to propose amendments.” There is much fear being thrown out in opposition to such an idea; my biggest argument against that fear is that this provision is clearly written in the Constitution, is clearly defended by both Madison and Hamilton in the Federalist Papers (#43 and #85, respectively), and provides the states with the only unilateral authority to correct the federal government (two-thirds apply for an amending convention for the same subject(s), the convention of state delegates proposes one or more amendments germane to the originating application, and three-fourths of the states then must ratify any proposed amendments).

    In specific reference to treaty authority, an application for an amending convention to “limit the power and responsibility of the federal government” could entertain/propose an amendment which demands that two-thirds of the states ratify a treaty, or that two-thirds of the states can nullify a treaty, both without further recourse (no appeal to the courts). Such an amendment could effectively restore the power the states enjoyed before the ratification of the 17th amendment. Now that’s nullification!

    The Convention of States Project does in fact have that very clause in their amending application, currently working through some 30 state legislatures in the country. No other Article V proposal is offering the state legislatures this opportunity to reclaim their lost power.

    For more information, please consider visiting conventionofstates.com.

    Reply

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