Once 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.
http://netrightdaily.com/2015/04/senate-cedes-treaty-power-to-obama-on-iran/
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