Presidential unilateralism run amuck

As partisans vigorously debate the merits of the U.S.-Iran agreement, separation of powers issues receive much less attention though in the long run will be more consequential. In short, President Barack ObamaBarack ObamaOvernight Regulation: Trump administration reveals first regulatory agenda | GOP lawmakers introduce measures to repeal arbitration rule | Exxon gets M fine for sanctions violation Mounting nationwide immigration enforcement costs 20 attorneys general urge DeVos to keep college sexual assault protections MORE, in pushing the controversial deal by avoiding the Senate’s constitutional treaty ratification power has of course delivered the outcome he sought, but at a great cost to constitutional government.

The president’s action is not unique. From immigration policy to international agreements, he has made repeated maneuvers around normal constitutional constraints on executive power. As a first-time presidential candidate in 2007-2008, he often criticized President George W. Bush for exceeding the limits of presidential powers. Obama invoked his background in constitutional law as lending credibility to his critique of presidential overreaching and he pledged to respect Congress’s constitutional powers.

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To be sure, many successful presidential candidates have made such pledges in campaigns and then discovered the utility of their predecessors’ tactics for acting without Congress.  And the combination of out-of-control partisanship along with the president trying to achieve his agenda in the waning months of his presidency explain much of the cause of the current mess. Yet as presidents look to pushing an agenda, Congress must be mindful of protecting its institutional prerogatives. 

Claims that presidents possess prerogative powers that would permit Obama’s unilateralism in this situation, as well as a number of others during his tenure, do not stand up.  The Treaty Power is shared by the President and Congress. As stated in Article 2 Section 2 of the Constitution, approval or rejection of a treaty requires the concurrence of “two-thirds of the Senators present.” How this clear requirement of a supermajority to ensure broad consensus on global matters of state has been transformed into approval by a partisan minority without congressional debate is a travesty of the rule of law. It is yet another instance of Congress abdicating its constitutional responsibilities to the other branches of government.  

History is instructive. One of the first debates over the Treaty Power occurred between Alexander Hamilton and James Madison over President George Washington’s Proclamation of Neutrality with France in 1793. Hamilton argued that an implied reading of the vesting clause in Article II broadly endowed the president with unspecified or inherent powers not explicitly found in the Constitution. According to Hamilton, the President “was subject only to the exceptions and qualifications which are expressed in the instrument.” However, Hamilton himself acknowledged that the two-third’s concurrence by the Senate in treaties is among these exceptions.  Thus, even Hamilton, the champion of broad executive power, nonetheless recognized the Senate’s role in treaty making. Given this recognition, he regarded the Neutrality Proclamation not as a new law or treaty, which would have involved a congressional role, but as “a fact with regard to the existing state of the Nation.” In other words, the Proclamation merely clarified the status quo. On the contrary, the current negotiations with Iran are a new treaty with far-reaching implications for our country’s future and therefore do not justify a unilateral claim to Executive Power, even by Hamilton’s own criteria.

Thomas Jefferson urged Madison to rebut Hamilton’s broad view of executive power. Madison quoted Hamilton himself in Federalist 75 who acknowledged that the treaty power “partake[s] more of the legislative than of the executive character.” And while critics of Jefferson accused him of over-reaching his constitutional authority with the Louisiana Purchase, he nonetheless sought and secured the Senate’s approval. Finally, in the twentieth century, the Senate memorably asserted its prerogative and rejected President Woodrow Wilson’s proposal for a League of Nations. 

As Obama pushes the U.S.-Iran agreement and Congress responds ineffectually, it appears that today political leaders have become so inured to claims of unilateralism on both sides of the aisle that they no longer recognize constitutional arguments and precedents to the contrary.

In the end, short of a judicial challenge, the congressional will to protect its powers is the best hope for a constitutional corrective. To his credit, Senator Bob CorkerBob CorkerOvernight Cybersecurity: DOJ takes down two online criminal markets | Kansas breach exposed 5M Social Security numbers Lawmakers inch closer to deal on Russia sanctions The next battle in the fight against human trafficking MORE assembled bipartisan support within the Senate Foreign Relations Committee to require President Obama to submit the U.S.-Iran agreement to Congress.  The majorities in the House and the Senate in passing this bill were huge.  But too bad Corker couldn't have used these majorities to switch the agreement to a treaty. As the situation stands, Congress now is left to vote on an agreement that contains key elements that are secret. Certainly this is not the process that the constitutional framers ever would have imagined to happen when they devised our system of separated but balanced powers.

Fornieri is professor of political science at Rochester Institute of Technology and Rozell is acting dean and professor of public policy at George Mason University.