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Treaties require Senate approval

Whether you agree or disagree with Israeli Prime Minister Netanyahu about an agreement with Iran, the president of the United States is required to submit the proposed treaty to the United States Senate for approval under the Constitution.  Similarly, President Obama’s proposed Trans Pacific Partnership with 13 other nations is a treaty under the Constitution requiring two-thirds Senate approval to be the law of the land. 

The Constitution provides in Article II, Section 2, Clause 2: “He (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.”

The first question is whether these two presidential proposals are treaties?  There are international agreements other than treaties that the Supreme Court has allowed.  However, these lesser agreements were entered into under the president’s power to receive ambassadors.  Neither of the president’s proposed international agreements involve his power to receive ambassadors, nor any other presidential power other than the treaty clause and thus cannot be implemented without Senate approval. 

Black’s Law Dictionary defines a treaty as “an agreement between two or more independent states.” By independent states the dictionary means nations. It is hard to imagine agreements that are more important than a nuclear disarmament agreement with Iran and a trade agreement with 13 nations. If the treaty clause has any meaning left it must be applied to these agreements because they will outlive Obama’s term of office and will affect the nation for decades to come. These are not simple agreements that the president can enter into by himself, or with a simple majority in Congress. 

The Nuclear Nonproliferation Treaty was negotiated in 1968 and approved by two-thirds of the U.S. Senate the following year.  Since that time, agreements seeking to control nuclear weapons with other nations have been considered treaties by the United States since this time. Because the proposed agreement with Iran involves nuclear arms control, it is certainly a treaty. 

Agreements involving international trade are no less treaties than those involving war and peace. The first U.S. trade agreement in a treaty was the Jay Treaty, or more formally, The Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America entered into in 1795 with two-thirds Senate approval. Since this was enacted soon after the Constitution was approved, the treaty clause was fresh in the country’s mind. Two hundred and thirty years later, however, we have ignored the treaty clause. 

The North American Free Trade Agreement bypassed the treaty clause because it failed to achieve two-thirds Senate approval.  It was signed by President Clinton as simple legislation, not as a treaty.  The Made in the USA Foundation and the United Steelworkers Union challenged NAFTA under the treaty clause.  The 11th Circuit Court of Appeals found that we had raised a “political question” and would not decide the issue.  The U.S. Supreme Court ducked the issue as well by declining to review the case. Mexico, on the other hand, called NAFTA a treaty (tratado) and approved it as such under the Mexican constitution.

The political question doctrine is a judge-made concept. A recent Supreme Court decision (Zivotovsky v. Clinton) has severely undermined the political question doctrine paving the way for the courts to review a challenge to a presidential agreement that is not ratified as a treaty by the Senate. In an eight to one decision the Supreme Court ruled in 2012: “At least since Marbury v. Madison, we have recognized that when an Act of Congress is alleged to conflict with the Constitution, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ That duty will sometimes involve the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches,’ but courts cannot avoid their responsibility merely ‘because the issues have political implications.’ INS v. Chadha (1983).” 

Presidents have regarded the Article II treaty process as necessary where an international accord would bind a future president. For example, Theodore Roosevelt explained in his 1913 autobiography:

The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo (Dominican Republic). But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two years before the Senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be proceeding under a treaty which was the law of the land and not merely by a direction of the Chief Executive which would lapse when that particular executive left office. I therefore did my best to get the Senate to ratify what I had done.

President Obama should follow Roosevelt’s advice and submit his proposed Trans Pacific Partnership treaty and proposed treaty with Iran to the United States Senate for its advice and consent as our Founding Fathers wisely engrained into the Constitution of the United States.

Joseph is chairman of the Made in the USA Foundation.


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