“Obama seals Iran deal win as Senate Democrats find 34 votes.”
That was the headline from the Associated Press proclaiming Senator Barbara Mikulski (D-Md.) would vote to sustain a veto by President Barack Obama of any resolution of disapproval by Congress against the Iran nuclear deal.
Since when does it take 34 votes to adopt a treaty, or any other type of agreement with a foreign country that just happens to be our sworn enemy?
And yet, that is precisely the situation that Congress created when it adopted H.R. 1191, legislation by Bob Corker (R-Tenn.) that authorizes Obama 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.
Meaning, to stop the deal, any resolution of disapproval against the deal will have to pass the House and Senate. Then when Obama vetoes it, the resolution will need a two-thirds vote in each house.
In the process, the treaty provisions of the Constitution in Article II, Section 2, stating 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,” have been turned on their head.
Now, to adopt the nuclear treaty with Iran, Obama only needs 34 votes in the Senate to sustain his veto, when it would have taken 67 votes to adopt it under the constitutional procedure. And with Mikulski’s pledge, as AP notes, the Iran deal is now a done deal.
But this is actually nothing new. Presidents have been entering into 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 (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, it did.
Almost 80 years later, there are few treaties that are ratified anymore. But there have been over 17,000 executive agreements with foreign governments. Over 93 percent of these agreements have occurred since 1939, according to data compiled by the Congressional Research Service. Far fewer took place prior to the New Deal.
Apparently, the only reason to put a treaty up for ratification nowadays is to ensure it is defeated.
Yet, nowhere in the AP story — or in any Republican leadership objections to the Iran deal — are these constitutional flaws revealed to readers. Instead, the only matter up for “debate” is whether Obama will have to suffer the indignity of actually vetoing the legislation. For, if Democrats get to 41 votes in the Senate, they can block a resolution of disapproval from ever even getting to Obama’s desk to be vetoed.
Which, if no bill ever reaches Obama’s desk and the Iran nuclear deal goes forward anyway, it underscores that the only consequential vote that took place authorizing the Iran deal, was the adoption of H.R. 1191.
The whole process was rigged from the get-go to ensure precisely this outcome.
Welcome to post-constitutional America, where treaty ratification is optional, and everybody just goes about their business as if nothing is wrong.
So, with all due respect to Republican presidential contenders and U.S. senators gathering on Capitol Hill on Sept. 9 to rally in opposition to the Iran nuclear deal, the real time to have opposed it was when the Corker bill authorizing it came up for a vote. Everything else is just theater, and the American people are growing weary of these inconsequential show votes.
This is a guest post by Robert Romano senior editor of Americans for Limited Government.