Tag Archives: treaty

Reposted from The White House Dossier

I keep reading today that the White House folded, caved, threw up the white flag, rolled over on its sword and died a humiliating death by accepting legislation by Sen. Bob Corker, R-Tenn., giving Congress “a role” in the Iran negotiations.

In this case, that’s a bit of spin that both the White House and Republicans want you to buy. Because Republicans want you to think they’ve etched out some kind of a victory over Obama, and finally stood up one of his power grabs. While the White House want to camouflage . . . its latest successful power grab.

“The Unified States Senate just capitulated to Obama,” radio host and Constitutional scholar Mark Levin said Tuesday night. “The Unified States Senate just rewrote the Treaty Provision of the Constitution.”

And he’s right. Because a treaty requires a two thirds vote by the Senate to be accepted as law. Corker’s bill turns that on its head, allowing Congress to vote down the treaty with Iran but giving Obama veto power, which must be overridden by a two thirds vote. MEANING THAT INSTEAD NEEDING TWO THIRDS OF THE SENATE FOR HIS TREATY, OBAMA ONLY NEEDS ONE THIRD.

And that’s a victory for Congress?

What Corker has done is legitimize Obama’s power grab. Congress could have instead voted this treaty down on its own and then passed legislation withholding funding for its implementation. Obama could also veto the measure withholding funds, which would require the same two-thirds override. But at least the point would have been made that he was acting unconstitutionally, and he would be on record as defying the Congress. As a practical matter, this would have made it far easier for a future president to discard the Iran deal.

It’s true, international agreements have increasingly, over the decades, been done by executive action. But an agreement such as this – negotiated over the course of years and involving nuclear weapons for our most pernicious adversary and therefore the possible destruction of the United States – must by its nature qualify as a treaty under the Constitution, or there is no Constitution at all.

The Founders are very clear on the need for a co-equal role in such critical matters for the Senate, which was originally entrusted not just with approving treaties, but helping negotiate them too.

Levin points to Federalist No. 75 by Alexander Hamilton “The Treaty-Making Power of the Executive,” in which Hamilton asserts that no single man can be counted on as sufficiently morally pristine to be entrusted solely with such a vast power:

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.

Hamilton raises an interesting example of how allowing just the president to make treaties can go wrong:

A man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand.

Hamilton’s concern here is with that a president, being only human, might be tempted to do something that would benefit him financially, since he is soon headed back to the private sector. And sure, Obama’s memoir will fetch millions and will certainly be enlivened by an Iranian nuclear arms deal.

But Hamilton could have just as easily used vainglory as he did venality as a choice of human weakness here. Obama has plenty of money, but a deficit of glory. Many believe Obama desperately wants an Iran deal to provide him with an illustrious legacy, particularly for a second term in which he has achieved nothing beyond making a mess of half the world.

With the Corker bill, he now has Congress in his pocket as he joins Iran in shredding the Constitution over a Swiss negotiating table. And in ten to 15 years, when Iran conducts its first nuclear test, Congress will have had a “role” in the tragedy.