According to Article II, Section 2 of the U.S. Constitution, “[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…”
Meaning, the president can negotiate a treaty with a foreign nation, but it shall not be binding unless and until it is submitted to the U.S. Senate, and two-thirds of the members in attendance agree.
It is a meaningful and vital check on executive power. In today’s two-party system, it would require that, in order to ratify a treaty with other governments, there must be broad bipartisan consensus. It was designed to be hard to enact treaties. And with good reason. As Alexander Hamilton warned in Federalist No. 75 justifying the treaty clause of the Constitution, “it would be imprudent to confide in [the president] solely so important a trust.”
Instead, Hamilton wrote, “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 what we see today out of Washington, D.C. has almost no resemblance to that constitutional construct. There is no treaty process any more. It is self-evident.
President Barack Obama has negotiated a climate deal with China — for the U.S. to reduce carbon emissions now, and China, sometime later — that will never be submitted to the Senate for two-thirds majority treaty ratification. In fact, he has given it to the United Nations to review instead.
The U.S. Trade Representative has negotiated a trade deal between the U.S. and Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam — that will never be submitted to the Senate for two-thirds majority treaty ratification.
Instead, Congress will agree to adopt the treaty by first agreeing not to call it a treaty, expediting its process, and finally by allowing a simple majority vote of both houses to ratify it. A so-called executive-legislative branch agreement — never considered under the original terms and conditions of the Constitution — it is a pure fabrication of the modern administrative state begun in the 1930s. Nothing more.
Prior to that time, trade treaties, such as the United Kingdom Commerce and Navigation Treaty of 1815, a free trade agreement, required a two-thirds Senate majority to ratify. Too bad nobody told then-President James Madison — father of the Constitution — he could have done it with simple majorities of both houses. Somehow that escaped his attention.
Finally, Obama’s State Department has negotiated a deal that ends economic sanctions against Iran — allowing Tehran to acquire nuclear weapons with which to threaten the region and U.S. national security — which will never be submitted to the Senate for two-thirds majority treaty ratification.
Instead, Senate Republicans — just a short month after writing a letter to the mullahs in Tehran that it is the Senate, not the president, who approves treaties — are now moving legislation that once again cedes the Senate’s treaty ratification prerogatives.
It will allow Congress to block Obama’s Iran treaty, but only if Obama signs the bill, and, in the process, rejects his own negotiations. Why would he do that? As many constitutional experts have already noted, such as talk radio host Mark Levin, this is the treaty process exactly backwards.
Obama will veto such legislation. Meaning, to block the treaty will require a two-thirds vote when, originally, it would have required a two-thirds vote to ratify the treaty.
Again, we have written before, and it bears repeating: Why have a Senate? Or a Congress as a whole for that matter? Apparently, under our current form of government — which is no longer a constitutional, limited government — the president can just negotiate treaties at will, without any need for ratification. He can just amend law, such as immigration law, at will, without any need for Congress to act. He can just issue regulations governing every aspect of the economy, such as on carbon emissions, without any need for Congress to act.
And Congress, now led by Republicans, is just letting it happen. They’re funding it. They’re enabling it. Oh sure, they’ll issue statements whining about it, but when it comes to the powers at their disposal — to reject Obama’s treaties, to deny him funds for his administration, or even to threaten impeachment — all have been forsaken by Republican leaders, who prefer to cower from fulfilling their constitutional duties.
The damage to our constitutional system may prove to be irreparable. After enduring this ordeal, the next president, Republican or Democrat, will likely argue, from a precedential standpoint, that Obama has not followed constitutional procedures to enact laws or treaties.
So, whoever he or she is will simply claim the same powers. Why would a president ever again bother submitting a treaty to the Senate for ratification — unless he or she wanted to make sure it didn’t pass?
This is dangerous.
Instead of having a conversation about the separation of powers, the Senate, led by Republicans, has ceded its constitutional prerogatives — and that body will never again reclaim them. Members pretend they will restore normal order, but they won’t.
Not when we are living under an entirely new order that transcends any constitutional limits.
This reckless disregard for the rule of law has destroyed the freedom of great nations in the past. In our arrogance, we pretend we are different. That somehow we will escape this fate. But the truth is, liberty has already been lost, since the government no longer derives its powers from the consent of the governed.
Nobody ever agreed to eliminate the Constitution. They just did it.
Robert Romano is the senior editor of Americans for Limited Government.
