04.30.2015 2

Senate cedes treaty power to Obama on Iran

By Robert Romano

suicidal uncle samOnce again, the U.S. Senate has ceded power to the executive branch, this time with only 39 Senators, all Republican, voting that the president’s pending agreement with Iran over its nuclear program is a treaty subject to the advice and consent of the Senate.

This despite the fact that Article II, Section 2 of the U.S. Constitution states, “[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…”

Consider that. Only 39 senators out of 100 care about the separation of powers any more.

For this Senate, then, presidential prerogative is a top priority. Members may pretend that by ignoring the treaty clause they strengthen the hand of the president and future administrations to negotiate foreign agreements.

Yet, they undermine the very legitimacy of those negotiations, particularly since they will not actually be binding under the Constitution. The deal won’t be worth the paper it is printed on.

And if the U.S. Senate and the president do not take our treaty obligations seriously — including the proper process for entering into them — why should Tehran?

This was a matter of serious contention in the early days of the republic. On March 30, 1796, then-President George Washington had to communicate to the House of Representatives, which wanted a role in adopting treaties, that undermining the text of the treaty clause would undermine the treaty itself.

Wrote Washington, “It is thus that the treaty-making power has been understood by foreign nations, and in all treaties made with them we have declared and they have believed that, when ratified by the president, with the advice and consent of the Senate, they become obligatory.”

Thus, any treaty entered into that does not follow the proper formula for ratification, by definition, is not binding on future administrations. Obama and Iran might as well be issuing a press statement, since it would have about the same legal effect. It is a worthless arrangement.

Yet, most of the Senate does not seem to care. 57 members voted for a presidential fiat system that bears almost no resemblance to the constitutional form of government envisioned by the Framers.

Now, it is solely the province of the president to enter into agreements with foreign powers — a dangerous view of executive power — all the more alarming since it is now endorsed by the legislative branch.

How about that? Even the Senate views its own constitutional prerogatives as a hindrance on the exercise of executive power. Why would a president ever submit a treaty to the Senate for ratification again?

In the meantime, it is that very check on executive power by the legislative branch that is the cornerstone of the constitutional separation of powers and the ultimate expression of Enlightenment political thought.

It took more than 1,500 years to recover from and to do away with absolute executive powers, the last time humanity went through this process. For, once granted, no man is virtuous enough to cede power back to the people, either directly or via their representatives.

Instead, we are left with a vicious cycle of partisan escalation, where the out party adopts the same powers usurped by the ruling party once the guard has been changed. The paradigm only ever moves in one direction.

Why even have a Constitution? This is usurpation via abdication. Historically, this is a dangerous path that has only ever led to a complete seizure of power by the executive branch.

And now we know that liberty will not end with a bang, but with a whimper.

Robert Romano is the senior editor of Americans for Limited Government.

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