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.
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