When is a treaty not a treaty?
Apparently, whenever the president says so, according to Sen. John McCain (R-Ariz.).
In an interview with the Daily Caller asking why the Senate was not treating the Iran nuclear deal as a treaty and defeating it, McCain responded, “It’s not a treaty, though. That’s the problem. They’re calling it an agreement. If it were a treaty, then it would require two-thirds vote of the Senate in a positive fashion… [But] [n]ot when the administration doesn’t call it a treaty — okay? They’re the ones that label it. It is not a treaty. We can’t designate it. They have the ability to call it an agreement. We do not. Those are the facts.”
And just like that, a prominent U.S. senator — whose job it would otherwise be to ratify or reject treaties — ceded one of the most important checks on presidential power in the Constitution.
Never mind that Article II, Section 2 of the Constitution requires treaties to be adopted by a two-thirds majority of those present in the Senate. If a president does not want to bother with that onerous process, he can apparently just skip it.
But in truth, this is nothing new.
Presidents have been entering into legally-binding executive agreements with foreign nations for decades. And, apparently, the Senate can no longer be bothered to do anything about it, per McCain.
In United States v. Belmont (1937), the Supreme Court found that international compacts, even ones that are not treaties (i.e. executive agreements) are not only legally binding, but the supreme law of the land.
Wrote Justice George Sutherland in the court’s majority opinion: “[W]hile this rule in respect of treaties is established by the express language of clause 2, article 6, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states.”
The question was whether an executive agreement with the Soviet Union that was never ratified by the Senate trumped state law, invoking the supremacy clause. In that case, remarkably, it did.
Fast forward 78 years, and the Senate hardly ratifies treaties any more. But there have been more than 17,000 executive agreements with foreign nations.
Interestingly, more than 93 percent of executive agreements with foreign nations have been concluded since 1939, according to data compiled by the Congressional Research Service. Comparatively fewer occurred prior to the New Deal.
So, not only are these foreign agreements binding, they are the supreme law of the land, and like so many other post-constitutional abominations, depend on the New Deal Supreme Court for their existence.
That is why Obama does not feel like he needs to go to the Senate to ratify his Iran nuclear deal — even though it imposes legal requirements on the U.S., like lifting economic sanctions and repealing certain executive orders.
The real mystery is why the Senate continues to put up with it.
The least members could do is try to wage the battle, deem the Iran nuclear deal to be a treaty, take it up, and defeat it. Even if it was a battle that would ultimately fail. Let the Supreme Court rule that the treaty clause is optional once again.
What has the Senate got to lose that the presidency and the Supreme Court has not already taken away?
What we know for certain is that if Congress does not fight for its own prerogatives, then the battle is already lost. And members who refuse to fight are little more than dead weight. If they don’t see their jobs as defending the Constitution, what are they good for?
Clearly, and the Iran nuclear deal is a perfect example — it is touching off an arms race in the Middle East and risking war — U.S. interests are no longer served by the presidential system we have now. And at every turn, for the sake of our liberty, it must be combated until Congress’ rightful powers are restored, starting with the Senate’s treaty ratification power.
This guest post is by Robert Romano senior editor of Americans for Limited Government.