2015 may go down as the year that Congress gave up some of its most important legislative powers. Or, at least, the year it was confirmed that Congress’ powers are not what they used to be.
Take President Barack Obama’s executive amnesty granting legal status to millions of illegal immigrants with children who were born in the U.S.
In 2014, Congressional Republicans campaigned on the issue and promised to roll it back if they were granted majorities in the House and Senate. They won.
And Homeland Security funding was even separated out from the omnibus so that very fight could be had in 2015 with the new majorities.
But when push came to shove, Congress relented, and gave funding for Homeland Security without any strings attached, thus granting the taxpayer dollars to carry out the amnesty program.
Then there was the Iran nuclear deal. Members of Congress say they now oppose it. But why didn’t they wait for Obama to reveal the deal before they passed H.R. 1191? That legislation by Sen. Bob Corker (R-Tenn.) was passed in May and gave Obama all of the authority he needed to lift sanctions against Iran’s nuclear program.
The law provides that “any measure of statutory sanctions relief by the United States pursuant to an agreement [with Iran]… may be taken, consistent with existing statutory requirements for such action, if, following the period for review provided… there is not enacted any such joint resolution” by Congress disapproving of the deal.
In other words, the Iran nuclear deal was preapproved before anyone could read it. And Congress wanted to pretend that it would be voting against it after it was unveiled. Give me a break.
Naturally, Obama promised to veto any such resolution of disapproval, and 150 House Democrats signaled in May that they will be voting to sustain such a veto.
Of course, the Senate should have treated the nuclear deal as a treaty and subjected it to that level of scrutiny, including the constitutionally-requisite two-thirds majority of present senators to ratify it. Instead, Congress ceded the Senate’s treaty power.
Apologists will say this is nothing new. And indeed it isn’t. Presidents have been entering into legally-binding executive agreements with foreign nations for decades.
In United States v. Belmont (1937), the Supreme Court found that international compacts – even ones that are not treaties, including executive agreements, and thus were not approved by two-thirds of the Senate – were 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 it did.
Next there was legislation granting trade authority to Obama to negotiate the Trans-Pacific Partnership, a global trade agreement between the U.S. and Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam.
Now don’t tell me trade deals are not treaties. In 1795, Supreme Court Chief Justice John Jay negotiated a commercial treaty with Great Britain, “The Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America.” It was put to the Senate for ratification by a two-thirds vote, which eventually came on June 24, 1795.
Yet, with the trade authority legislation, Obama gets to submit the final agreement to Congress for approval by a simple majority of both chambers, instead of the two-thirds treaty ratification vote in the Senate.
Of course, this is nothing new, thanks to the Trade Act of 1974, which created an entirely new method of enacting trade agreements. It was signed into law by Gerald Ford. Now, the House and Senate authorize the President to negotiate trade deals, and then they are adopted by the House and Senate on an expedited basis — so-called fast track legislation.
Finally, there is the so-called Dotcom (Domain Openness Through Continued Oversight Matters) Act that the House voted on June 23 to pass.
The framers of the legislation pretend that it will “prohibit the National Telecommunications and Information Administration from relinquishing responsibility over the Internet domain name system…”
That is, “Until the date that is 30 legislative days after the submission to Congress of [a] report” by NTIA making certain certifications that everything will be okay with the transition.
In other words, the very bill that purports to “prohibit” turning over the administration of vital Internet functions — governing the assignment of domain names and Internet Protocol (IP) addresses — actually authorizes their giveaway to the international community. All the Obama administration would have to do is turn in a book report to complete the transition.
Again, the legislation is put forth as the means to stop an Obama agenda item, in this case the Internet giveaway, but actually sows the seeds for it being passed. How deceptive. How cynical.
And all this after Republicans ran for majorities in the House and Senate on the promise of restoring the legislative branch’s primacy. Are they kidding, or what? We need Congress to assert its constitutionally-enumerated powers under Article I and Article II more than ever. It’s not just a campaign talking point; it actually needs to be done to stop this administration.
This guest post is by Robert Romano senior editor of Americans for Limited Government.
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