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Friday, September 11, 2015

Article VI. Debate over Treaties

By Douglas V. Gibbs

The debate over treaties has escalated since the Iran Deal was recently negotiated by the Obama administration.  Rather than calling it a treaty, the White House has called the Iran Deal an "agreement," changing its dynamics, and altering the way the "advise and consent" powers provided for in Article II of the United States Constitution would be applied.  International agreements were all considered to be "treaties" at the time of the writing of the Constitution, and that is why the Founding Fathers established a series of checks and balances regarding treaties that were intended to prohibit the Executive Branch from making agreements with the ease that the Obama administration experienced when it came to the Iran Deal.  The Obama administration, by manipulating the language, calling what should have been a treaty an "agreement," acted unconstitutionally, and therefore illegally.

The Rule of Law is what makes our country a republic, and adherence to the rule of law is a requirement of everyone in the United States, including the political class.  No person is above the law, no person should be allowed to be exempt from any law, and no person is supposed to received preferential treatment when it comes to the law.  The ruling elite, especially when it comes to folks like the Obamas, the Clintons, and a wide range of other "professional politicians," seems to think they are above the law, so they "act" as if they are above the law.  This is why Hillary Clinton didn't think twice about her treasonous behavior that mixed a personal server, her email accounts, and national security issues into one big mixing bowl.  What did she care what the law said?  She figured she's above the law.  What about congressional critters making themselves exempt from Obamacare, and a whole slew of other laws?  What do they care?  They think they are above the law.  We can go back in history with a number of scandals, from the check bouncing by representatives to Watergate.  Each and every time, what was primarily the problem was that we have a class of people that believe they are above the law.  Checks and balances in government were established to protect us from that kind of behavior.  Yet, as we saw with the Iran Deal, the checks and balances are shrugged off and circumvented, by simply changing the language.

The U.S. Senate was given the authority to be the final say regarding treaties not only so that there was a check and balance against agreements made by the President with foreign nations, but specifically because at the time the Senate was the voice of the States.  The Senate, at the time, was comprised of members appointed to the House of Congress by the State Legislatures.  By giving the voice of the States the authority to approve treaties, it ensured that treaties would not be agreed upon that may put at risk the sovereignty of the States.  This was important because treaties can be a powerful thing.  In fact, according to Article VI., once a treaty is ratified, it becomes the Law of the Land no less than is the United States Constitution, and no less than federal laws made in pursuance of the U.S. Constitution.

Which brings up another often debated topic.

In the Supremacy Clause of Article VI. in the United States Constitution, there is uneasiness that was also felt by the anti-federalists during the time period immediately following the Constitutional Convention in 1787.  While those that supported the Constitution encouraged its ratification, the anti-federalists questioned the language used, and the potential for the federal government to grow beyond the restraints enumerated in the Constitution, and become a tyrannical system like all other centralized governments in history.

According to Clause 2 of 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."  based on the placement of the semicolon between "made in pursuance thereof" and "and all treaties made, or which shall be made," and based on discussions during the Constitutional Convention as penned by James Madison in his notes on the Federal Convention of 1787, federal laws are not legal if they are not "made in pursuance" of the Constitution, and treaties do not have to be made in pursuance of the Constitution.

Did you catch that?  Unconstitutional treaties become constitutional upon ratification, while unconstitutional laws made by Congress remain unconstitutional and can be repealed for that very reason.

The reality of this clause reminds us of how important the eternal vigilance of the people truly is.  If treaties are not subject to constitutional scrutiny, as the language is presented in Article VI., then the President and the Senate can pass any treaties they like, and ultimately render the Constitution meaningless with that power.

The Federal Farmer during the period immediately following the writing of the Constitution voiced the same concern. In a letter dated October 12, 1787, he wrote, "By the article before recited, treaties also made under the authority of the United States, shall be the supreme law: It is not said that these treaties shall be made in pursuance of the constitution--nor are there any constitutional bounds set to those who shall make them: The president and two thirds of the senate will be empowered to make treaties indefinitely, and when these treaties shall be made, they will also abolish all laws and state constitutions incompatible with them. This power in the president and senate is absolute, and the judges will be bound to allow full force to whatever rule, article or thing the president and senate shall establish by treaty, whether it be practicable to set any bounds to those who make treaties, I am not able to say: if not, it proves that this power ought to be more safely lodged."

Two dangers then arise regarding treaties.  First, treaties can be used to compromise our republic when the Senate is willing to ratify treaties that are a danger to the sovereignty of the States, and since the 17th Amendment in 1913 took away the State's voice from Congress, that is a very real possibility.  Second, if the executive branch finds a way to bypass the Senate and sign treaties without the need for ratification, it opens up the opportunity for a President that desires to create tyranny and compromise the sovereignty of the States - an action President Obama set a precedent for by calling the Iran Deal an "agreement," allowing him to put it in force without proper ratification.

More disturbing is that Congress did not demand that the agreement be treated as a treaty, but instead established a process that changed approval from Senatorial ratification to Congressional approval that can be vetoed by the President.  What this means is that as a treaty, the agreement needed 2/3 approval regardless of what the President's opinion.  However, with the way the Iran "agreement" is being treated by Congress, if they disapprove it with a majority vote, the President can veto it, and it takes 2/3 majority of both houses to override that veto, otherwise he gets what he wants, regardless of what the majority of Congress thinks.

By circumventing the Constitution, the Obama administration has established a recipe for tyranny.

-- Political Pistachio Conservative News and Commentary


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