Withdrawing from a Treaty

 Gary J. Schmitt at AEI:

Arguments have been made that Congress must approve such a decision or that the Senate, given its role in sanctioning a treaty, should also have a say in terminating that pact. Yet presidents acted on their own in the two most recent decisions to end America’s adherence to a security-related treaty. In late 1979, President Jimmy Carter announced that the 1954 security accord with the Republic of China (Taiwan) would end on January 1, 1980. And then, in December 2001, not long after 9/11, George W. Bush announced that the U.S. was pulling out of the Anti-Ballistic Missile Treaty.

Carter’s decision did not go unchallenged. Republican Sen. Barry Goldwater filed a lawsuit in federal court arguing that treaty termination required Senate concurrence. Eventually, the case made it to the Supreme Court, where six of the nine justices ruled that it should be dismissed, with no hearing or oral arguments required. Justice William Rehnquist, concurring with that judgment, issued a statement along with three other justices that said the issue at hand was a political question—a dispute between Congress and the president over how foreign affairs should be conducted—and, therefore, not something for the court to decide. It was up to Congress to defend its claimed prerogatives. Justice Lewis Powell also concurred in the decision, but argued in a separate statement that the case might in fact have been one for the court to hear if the Congress had acted as a whole by passing a resolution formally opposing Carter’s decision.

Goldwater v. Carter (1979) undoubtedly influenced how Congress reacted to Bush’s decision to pull out of the ABM Treaty two decades later. While there were certainly Democrats who criticized the decision, the party itself was in the minority in the House and held a slim, one-vote margin in the Senate. With the precedent of Goldwater v. Carter, individual members stood no chance of contesting the White House in court and, just as importantly, they lacked the political wherewithal to challenge the decision by passing a resolution that the court might have then taken cognizance of.

Ancient Origins of Advice and Consent

Allan Matkins at The National Law Review:

The United States Constitution vests the executive power of the federal government in the president, but his or her power is not entirely autonomous. Notably, Article II, Section 2 notably endows the president with the power to make treaties with the "advice and consent" of the Senate. While the president has unilateral power to nominate ambassadors, judges and other officers of the United States, actual appointments may only be made with the "advice and consent" of the Senate.

The concept of advice and consent is an ancient one. It may have begun with the Etruscans, a people who preceded the Romans on the Italian peninsula. Like the Greeks and Romans, the Etruscans worshipped a pantheon of deities having one king or chief god. For the Greeks, this was Ζεύς (Zeus), for the Romans in was Jupiter, and for the Etruscans it was Tinia. Like his Greek and Roman counterparts, Tinia could hurl thunderbolts. Unlike Zeus and Jupiter, however, Tinia was required to consult with, and obtain the consent of, the other principal gods before throwing a destructive thunderbolt.

This idea of advice and consent became a central feature of the Roman government. Unlike the United States Senate, the Roman senate was not a legislative body. It was a deliberative body whose consent was required to legitimize executive and administrative actions. This consultative role gave it indirect executive power.

The founding fathers of the American republic may not have been thinking of Tinia when they wrote the advice and consent requirement into the Constitution. There can be no doubt, however, that they were familiar with, and borrowed from, precedents from the Roman republic that had their origins in Etruscan theology.

Senators, Treaties, and Foreign Policy

Reacting to the recent letter to Iran, Vice President Biden says that he cannot recall a case in which a senator told another country of the limit's of the president's negotiating authority.  At AEI, Marc A. Thiessen has a different view:

In June 2000, when Biden was ranking member of the Senate Foreign Relations Committee, President Bill Clinton set off for Moscow to negotiate a new arms control treaty with Vladimir Putin that would have limited the United States’ ability to build defenses against ballistic missile attack. The morning the talks were scheduled to begin, the president was greeted by on op-ed on the front page of Izvestia by committee chairman Jesse Helms (R-N.C.). “After dragging his feet on missile defense for nearly eight years, Mr. Clinton now fervently hopes that he will be permitted, in his final months in office, to tie the hands of the next President,” Helms wrote. “Well I, for one, have a message for the President: Not on my watch. Let’s be clear, to avoid any misunderstandings: Any modified ABM treaty negotiated by this administration will be dead-on-arrival at the Senate Foreign Relations Committee. . . . The Russian government should not be under any illusion whatsoever that any commitments made by this lame-duck Administration, will be binding on the next administration.”

The message was received in Moscow. There was no new arms control deal.

Biden also surely remembers how in 1998, when the Clinton administration was negotiating a U.N. treaty to create an International Criminal Court, Helms did more than send a letter expressing his opposition — he sent his aides to Rome to join the negotiations and make his opposition clear. I was a member of that team. Meeting with the United Nations delegates (with Biden’s aides present), we delivered a clear message from the chairman: Any treaty Clinton negotiated that did not give the U.S. a veto over the ICC in the Security Council was “dead on arrival” in the Senate Foreign Relations Committee. However, unlike the Obama administration, the Clinton team smartly tried to use Helms’s opposition as leverage to negotiate more protections for Americans.

Helms did not simply write to foreign leaders explaining the Senate’s constitutional role in foreign policy. Together with Biden, he went to the U.N. headquarters in New York to deliver the message in person. On Jan. 20, 2000, Helms became the first U.S. senator ever to address the U.N. Security Council, where he warned of steep consequences if the U.N. failed to accept the U.N. reforms he and Biden had passed. And he explained to the gathered world leaders what a mistake it was to try to ignore the role of the Senate in foreign policy. Citing the example of Woodrow Wilson’s failure to secure congressional approval for the League of Nations, Helms declared, “Wilson probably could have achieved ratification of the League of Nations if he had worked with Congress.” Helms and Biden then invited the Security Council to Washington, where he gathered all the U.N. ambassadors in the old Senate chamber for a lecture from Senate historian Richard Baker on the Senate’s role in U.S. foreign policy. (Russia’s then-U.N. ambassador, and current foreign minister, Sergei Lavrov turned to Helms’s aide after the lecture and asked, “Where in the bastion of democracy can I have a smoke?”)

Senators Write an Open Letter to Iran

Senator Tom Cotton (R-AR) and 46 GOP colleagues have written "An Open Letter to the Leaders of the Islamic Republic of Iran."

It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system. Thus, we are writing to bring to your attention two features of our Constitution—the power to make binding international agreements and the different character of federal offices—which you should seriously consider as negotiations progress.

First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote. A so-called congressional-executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate). Anything not approved by Congress is a mere executive agreement.

Second, the offices of our Constitution have different characteristics. For example, the president may serve only two 4-year terms, whereas senators may serve an unlimited number of 6-year terms. As applied today, for instance, President Obama will leave office in January 2017, while most of us will remain in office well beyond then—perhaps decades.

What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei. The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.

Death Star Petition

An actual petition on the White House website:

The whimsical petition relates indirectly to a real issue.  On June 28, 2010, The New York Times reported:

The Obama administration on Monday unveiled a space policy that renounces the unilateral stance of the Bush administration and instead emphasizes international cooperation, including the possibility of an arms control treaty that would limit the development of space weapons.

In recent years, both China and the United States have destroyed satellites in orbit, raising fears about the start of a costly arms race that might ultimately hurt the United States because it dominates the military use of space. China smashed a satellite in January 2007, and the United States did so in February 2008.

The new space policy explicitly says that Washington will “consider proposals and concepts for arms control measures if they are equitable, effectively verifiable and enhance the national security of the United States and its allies.”

In a New York Times op-ed on March 8 of this year, John R. Bolton and John C. Yoo took exception to administration policy:

 OUTER space has become the next frontier for American national security and business. From space, we follow terrorists and intercept their communications, detect foreign military deployments, and monitor a proliferation of unconventional weapons. Our Global Positioning System gives us targeting and tactical advantages, spacecraft create image-rich maps, and satellites beam data around the world.

But instead of advancing American primacy in this realm, the Obama administration has wrongly decided not only to follow a European Union draft “code of conduct” regulating outer space, but also to circumvent the Senate’s central constitutional role in making treaties.

The Obama administration recently declared that America would follow, though not sign, a European Union code of conduct for outer space — a transparent end run around the constitutional requirement that the Senate ratify all treaties. This code, drafted by Europeans who do not bear America’s global responsibilities, restricts military activities in space as well as some peaceful dual-use technologies, like the multistage rockets used to launch commercial satellites.

At Time, Jeffrey Kluger took another view:

“When they were academics,” Yoo and Bolton write, “several of [Obama’s] current advisers loudly proclaimed that simply signing treaties without the Senate’s consent helped form binding ‘customary international law.’” Put aside for the moment that the words loudly and binding are merely confections of the writers, the fact is that both international and American common law are built partly of just such broadly embraced practices and indeed always have been.

The militarization of space is not to be laughed off — and the dozens of black-box payloads carried into orbit for the Department of Defense by the space shuttles during their 30-year career attest to how deeply the U.S. is invested in protecting our skies. But making space policy also requires understanding space history — and star warriors like Bolton and Yoo seem to have little grasp of it. For more than 50 years, Presidents of both parties have, in ways big and small, committed themselves to showing the world that our aspirations in space are and will remain peaceful.

A Final Exam Question on Pot and Federalism

For those of you teaching introductory American politics, here is a nifty federalism question for a final exam or take-home essay:

Discuss the  story below in light of the following passages from the United States Constitution:

• Article II, section 3:  "[The president] shall take Care that the Laws be faithfully executed..."
• 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."
• Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

From Charlie Savage, "Administration Weighs Legal Action Against States That Legalized Marijuana Use,"

New York Times, December 6, 2012:

Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.

Even as marijuana legalization supporters are celebrating their victories in the two states, the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.

Marijuana use in both states continues to be illegal under the federal Controlled Substances Act. One option is to sue the states on the grounds that any effort to regulate marijuana is pre-empted by federal law. Should the Justice Department prevail, it would raise the possibility of striking down the entire initiatives on the theory that voters would not have approved legalizing the drug without tight regulations and licensing similar to controls on hard alcohol.
...
Federal officials spoke on condition of anonymity because they were not authorized to discuss the matter. Several cautioned that the issue had raised complex legal and policy considerations — including enforcement priorities, litigation strategy and the impact of international antidrug treaties — that remain unresolved, and that no decision was imminent.

Bob Dole and the Senate

A previous post noted that most current members of the House and Senate were not serving when Congress last passed a comprehensive tax reform in 1986. Turnover is also important in understanding this report from Roll Call:

It isn’t Bob Dole’s Senate anymore.

The wheelchair-bound, 89-year-old former Senate majority leader, GOP presidential nominee and World War II veteran was escorted onto the floor Tuesday by his wife, former Sen. Elizabeth Dole, R-N.C., to rally support for the United Nations disabilities treaty.

Last week, he was being treated at the Walter Reed National Medical Military Center. This week, he was trying to buttonhole colleagues to support an initiative to extend the rights granted to Americans under the Americans with Disabilities Act to citizens of the world.

Dole was gravely injured during World War II when his right arm was shattered in battle, and he has been a longtime advocate for the rights of the disabled, particularly veterans.

One by one, Senators of both parties approached the frail national leader, with former colleagues gently resting their hands on his shoulder or reaching out to his left hand, briefly clasping the man who once presided over the chamber with a mix of wit, tactical guile and ruthlessness.

Then, one by one, after Dole was wheeled off the floor, most Republicans voted against the measure.

Of 47 current Republican members of the Senate (there will be 45 in January), only 11 served with Dole before he left the Senate in mid-1996. And only seven of the eleven will be back next year.

• Lugar (defeated in primary)
• Hatch
• Cochran
• Grassley
• McConnell
• Shelby
• McCain
• Hutchison (retiring)
• Inhofe
• Snowe (retiring)
• Kyl (retiring)

Disability Treaty

Our chapter on national security and foreign policy discusses the making of treaties. The Hill reports:

Sens. Dick Lugar (R-Ind.), John Barrasso (R-Wyo.) and Johnny Isakson (R-Ga.) joined the 10 Democrats on the Senate Foreign Relations Committee to pass the Convention on the Rights of Persons with Disabilities, which has the support of advocacy groups across the country. Proponents say it would merely require the rest of the world to catch up to the United States' high standards created by the Americans With Disabilities Act while protecting Americans with disabilities abroad, but opponents — including a number of home-schooling groups — have raised concerns about international standards being imposed on America.

The treaty, said panel Chairman John Kerry (D-Mass.), “raises the standard to our level without requiring us to go further.”

Abortion was the only issue to divide lawmakers along partisan lines.

Sen. Marco Rubio (R-Fla.) proposed language saying the treaty “does not create any abortion rights.” All nine Republicans on the panel voted for it.

But Democrats said that would have allowed treaty signers to discriminate against people with disabilities — refusing to provide the full range of family planning services under domestic law — in violation of the spirit of the treaty. Instead, Kerry offered an amendment saying the treaty does not address “the provision of any particular health program or procedure,” meaning the treaty doesn't create any new abortion rights beyond the duty not to discriminate against people with disabilities.

The anti-abortion rights Susan B. Anthony List however said abortion itself is often a form of discrimination against people with disabilities.

"Ironically, when special needs children are identified in the womb, they often become a prime target for abortion," SBA List President Marjorie Dannenfelser said in a statement. "Over 90% of children diagnosed with Down syndrome in utero have their lives abruptly ended. Abortion in no way promotes the rights and dignity of people with disabilities."

UN Children's Rights Convention

CBS reports:

Thirty-one Republican senators are cosponsoring a resolution opposing the United Nations Convention on the Rights of the Child, according to the conservative group ParentalRights.org, which is pushing the resolution.

The resolution, which you can read here, states that the convention "undermines traditional principles" of U.S. law and calls efforts to sign on to the treaty "contrary to principles of self-government and federalism." It says the convention should not be put before the Senate for a vote.

...

Two-thirds of the Senate would have to ratify the treaty, which is why ParentalRights.org has set a goal of getting 34 cosponsors to its resolution. It is also pushing a Constitutional amendment called "The Parental Rights Amendment" to fend off "the attack on the child-parent relationship" and "ensure that the courts of our nation protect the fundamental right of parents to raise their children."

Seven Republican senators have signed on to the amendment, the group said, led by South Carolina Sen. Jim DeMint.

There is no sign that Senate Democrats are poised to bring the convention to the floor for ratification during the current session.

You can read the entire convention here. The claim that it would outlaw spanking is grounded in the provision that "No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment," according to ParentalRights.org.

According to University of North Carolina School of Medicine researchers, however, only 24 countries have banned all forms of corporal punishment at school and at home, while 193 countries have signed onto the treaty.