The Pronk Pops Show Podcasts
Story 1: Obama The Tyrant Races To Have The United Nations Security Council Pass The Traitorous Terrorist Treaty Before Congress Votes It Down — Congress and President Betray The United States Constitution — Just Walk Way From Both Political Parties — Never Again Fasicism — Videos
Incredible! New George S Patton speech! Iran & modern warfare
The Iran nuclear deal. Good deal or bad deal?
George Pataki: Iran deal is bad for civilized world
White House, Democrats divided over Iran nuclear deal
KEY POINTS OF HISTORIC IRAN NUCLEAR DEAL
Bolton: Nuke Deal ‘Paves the Way’ for Iran to Get Nuclear Weapons
Mitch McConnell Fox News Sunday. McConnell On Iran Deal, Ted Cruz, Donald Trump
July 14, 2015 Fiorina on nuclear deal with Iran: Bad behavior pays
Trump reacts to Obama’s Iran deal presser, El Chapo’s escape
Key Republican Senator Corker Angry Over Iran Nuclear Deal
Blackburn: Iran Nuclear Deal is Bad for the United States
Levin: ‘U.S. Senate Just Capitulated To Obama,’ And Rewrote The Constitution’s Treaty Provision
Just Walk Way From Both Political Parties
Discusses Iran Nuclear Agreement Review Act on FOX News Channel’s “The O’Reilly Factor”
“TREATY” – The Word Congress Won’t Use
Judge Napolitano : Obama pushes World Government by signing U.N. Arms Trade Treaty (Sep 26, 2013)
Obama Bringing Iran Deal to UN, Bypassing Congress
The Four Tops Walk Away Renee
Four Tops – It’s The Same Old Song (1966)
UN ENDORSES IRAN NUCLEAR DEAL WITH 6 WORLD POWERS
The U.N. Security Council on Monday unanimously endorsed the landmark nuclear deal between Iran and six world powers and authorized a series of measures leading to the end of U.N. sanctions that have hurt Iran’s economy.
But the measure also provides a mechanism for U.N. sanctions to “snap back” in place if Iran fails to meet its obligations.
Both U.S. Ambassador Samantha Power and Iran’s U.N. Ambassador Gholamali Khoshroo called the agreement an important achievement for diplomacy, the Iranian promising to be “resolute in fulfilling its obligations” and the American pledging to be vigilant in ensuring they are carried out.
The resolution had been agreed to by the five veto-wielding council members, who along with Germany negotiated the nuclear deal with Iran. It was co-sponsored by all 15 members of the Security Council. The European Union’s foreign ministers endorsed the agreement later Monday in Brussels and pledged to implement it.
Under the agreement, Iran’s nuclear program will be curbed for a decade in exchange for potentially hundreds of billions of dollars’ worth of relief from international sanctions. Many key penalties on the Iranian economy, such as those related to the energy and financial sectors, could be lifted by the end of the year.
Iran insists its nuclear program is purely peaceful, aimed at producing nuclear energy and medical isotopes, but the United States and its Western allies believe Tehran’s real goal is to build atomic weapons. U.S. President Barack Obama has stressed that all of Iran’s pathways to a nuclear weapon are cut off for the duration of the agreement and Iran will remove two-thirds of its installed centrifuges and get rid of 98 percent of its stockpile of uranium.
Britain’s U.N. Ambassador Matthew Rycroft said “the world is now a safer place in the knowledge that Iran cannot now build a nuclear bomb.” But Israel’s U.N. Ambassador Ron Prosor told reporters immediately after the vote that the Security Council had “awarded a great prize to the most dangerous country in the world,” calling it “a very sad day” not only for Israel but the entire world.
The document specifies that seven resolutions related to U.N. sanctions will be terminated when Iran has completed a series of major steps to curb its nuclear program and the International Atomic Energy Agency has concluded that “all nuclear material in Iran remains in peaceful activities.”
All provisions of the U.N. resolution will terminate in 10 years, including the “snap back” provision on sanctions.
But last week the six major powers – the U.S., Russia, China, Britain, France and Germany – and the European Union sent a letter, seen by The Associated Press, informing U.N. Secretary-General Ban Ki-moon that they have agreed to extend the snap back mechanism for an additional five years. They asked Ban to send the letter to the Security Council.
Obama told reporters the vote will send a strong message of international support for the agreement as the best way to ensure “that Iran does not get a nuclear weapon.” He faces strong opposition in the Republican-controlled Congress and expressed hope that members will pay attention to the vote.
Power, the U.S. ambassador, said the nuclear deal doesn’t change the United States’ “profound concern about human rights violations committed by the Iranian government or about the instability Iran fuels beyond its nuclear program, from its support for terrorist proxies to repeated threats against Israel to its other destabilizing activities in the region.”
She urged Iran to release three “unjustly imprisoned” Americans and to determine the whereabouts of Robert Levinson, a former FBI agent who vanished in Iran in 2007.
The message that diplomacy can work ran through many speeches from council members.
Iran’s Khoshroo stressed that only if commitments are fully honored “can diplomacy prevail over conflict and war in a world that is replete with violence, suffering and oppression.”
Russia’s U.N. Ambassador Vitaly Churkin said the agreement “clearly demonstrates that where there’s a political will based on realism and respect for legitimate mutual interests of the international community, the most complex tasks can be resolved.”
“Today, the Security Council has confirmed the inalienable right of Iran to develop its peaceful nuclear program, including to enrich uranium, while ensuring the comprehensive control by the IAEA,” Churkin said.
Article II, Section 2, Clause 2 of the United States Constitution, includes the Treaty Clause, which empowers the President of the United States to propose and chiefly negotiate agreements, which must be confirmed by the Senate, between the United States and other countries, which become treaties between the United States and other countries after the advice and consent of a supermajority of the United States Senate.
Full text of the clause
[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…
One of three types of international accord
In the United States, the term “treaty” is used in a more restricted legal sense than in international law. U.S. law distinguishes what it calls treaties from congressional-executive agreements and sole-executive agreements. All three classes are considered treaties under international law; they are distinct only from the perspective of internal United States law. Distinctions among the three concern their method of ratification: by two-thirds of the Senate, by normal legislative process, or by the President alone, respectively. The Treaty Clause  empowers the President to make or enter into treaties with the “advice and consent” of two-thirds of theSenate. In contrast, normal legislation becomes law after approval by simple majorities in both the Senate and the House of Representatives.
Throughout U.S. history, the President has also made international “agreements” through congressional-executive agreements (CEAs) that are ratified with only a majority from both houses of Congress, or sole-executive agreements made by the President alone. Though the Constitution does not expressly provide for any alternative to the Article II treaty procedure, Article I, Section 10 of the Constitution does distinguish between treaties (which states are forbidden to make) and agreements (which states may make with the consent of Congress). The Supreme Court of the United States has considered congressional-executive and sole-executive agreements to be valid, and they have been common throughout American history. Thomas Jefferson explained that the Article II treaty procedure is not necessary when there is no long-term commitment:
It is desirable, in many instances, to exchange mutual advantages by Legislative Acts rather than by treaty: because the former, though understood to be in consideration of each other, and therefore greatly respected, yet when they become too inconvenient, can be dropped at the will of either party: whereas stipulations by treaty are forever irrevocable but by joint consent….
A further distinction embodied in U.S. law is between self-executing treaties, which do not require additional legislative action, and non-self-executing treaties which do require the enactment of new laws. These various distinctions of procedure and terminology do not affect the binding status of accords under international law. Nevertheless, they do have major implications under U.S. domestic law. In Missouri v. Holland, the Supreme Court ruled that the power to make treaties under the U.S. Constitution is a power separate from the other enumerated powers of the federal government, and hence the federal government can use treaties to legislate in areas which would otherwise fall within the exclusive authority of the states. By contrast, a congressional-executive agreement can only cover matters which the Constitution explicitly places within the powers of Congress and the President. Likewise, a sole-executive agreement can only cover matters within the President’s authority or matters in which Congress has delegated authority to the President. For example, a treaty may prohibit states from imposing capital punishment on foreign nationals, but a congressional-executive agreement or sole-executive agreement cannot.
In general, arms control agreements are often ratified by the treaty mechanism. At the same time, trade agreements (such as the North American Free Trade Agreement and United States accession to the World Trade Organization) are generally voted on as a CEA, and such agreements typically include an explicit right to withdraw after giving sufficient written notice to the other parties. If an international commercial accord contains binding “treaty” commitments, then a two-thirds vote of the Senate may be required.
Between 1946 and 1999, the United States completed nearly 16,000 international agreements. Only 912 of those agreements were treaties, submitted to the Senate for approval as outlined in Article II of the United States Constitution. Since the Franklin Roosevelt presidency, only 6% of international accords have been completed as Article II treaties. Most of these executive agreements consist of congressional-executive agreements.
American law is that international accords become part of the body of U.S. federal law. Consequently, Congress can modify or repeal treaties by subsequent legislative action, even if this amounts to a violation of the treaty under international law. This was held, for instance, in the Head Money Cases. The most recent changes will be enforced by U.S. courts entirely independent of whether the international community still considers the old treaty obligations binding upon the U.S.
Additionally, an international accord that is inconsistent with the U.S. Constitution is void under domestic U.S. law, the same as any other federal law in conflict with the Constitution. This principle was most clearly established in the case of Reid v. Covert. The Supreme Court could rule an Article II treaty provision to be unconstitutional and void under domestic law, although it has not yet done so.
In Goldwater v. Carter, Congress challenged the constitutionality of then-president Jimmy Carter‘s unilateral termination of a defense treaty. The case went before the Supreme Court and was never heard; a majority of six Justices ruled that the case should be dismissed without hearing an oral argument, holding that “The issue at hand … was essentially a political question and could not be reviewed by the court, as Congress had not issued a formal opposition.” In his opinion, Justice Brennan dissented, “The issue of decision making authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts”. Presently, there is no official ruling on whether the President has the power to break a treaty without the approval of Congress, and the courts also declined to interfere when President George W. Bush unilaterally withdrew the United States from the ABM Treaty in 2002, six months after giving the required notice of intent.
Scope of presidential powers
Presidents have regarded the Article II treaty process as necessary where an international accord would bind a future president. For example, Theodore Roosevelt explained:
The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo. 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.
A sole-executive agreement can only be negotiated and entered into through the president’s authority (1) in foreign policy, (2) as commander-in-chief of the armed forces, (3) from a prior act of Congress, or (4) from a prior treaty. Agreements beyond these competencies must have the approval of Congress (for congressional-executive agreements) or the Senate (for treaties).
In 1972, Congress passed legislation requiring the president to notify Congress of any executive agreements that are formed.
Although the nondelegation doctrine prevents Congress from delegating its legislative authority to the executive branch, Congress has allowed the executive to act as Congress’s “agent” in trade negotiations, such as by setting tariffs, and, in the case of Trade Promotion Authority, by solely authoring the implementing legislation for trade agreements. The constitutionality of this delegation was upheld by the Supreme Court in Field v. Clark (1892).
Warren F. Kimball, Alliances, Coalitions, and Ententes – The American alliance system: an unamerican tradition
HAMILTON’S WARNING AGAINST OBAMA AND THE IRAN DEAL – FEDERALIST NO. 75
“An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents.” Thus did Alexander Hamilton warn the American people, in Federalist No. 75, against allowing the president to make treaties alone.
Hamilton, while a supporter of executive power, nevertheless argued for the Senate’s treaty role, because “it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration.”
It would be unsafe, he said, because even the most virtuous individuals, with the best of intentions, would fall prey to the temptations that negotiations with foreign powers would certainly provide.
How much more so does his advice apply to a president of lesser virtue, such as Barack Obama, who intends to decrease the power of the United States as a matter of ideological conviction, and who seeks narcissistic satisfaction in the attention a deal with Iran would temporarily provide!
Hamilton also anticipated the greed allegedly displayed by Hillary Clinton as Secretary of State, whose perambulations around the globe in service of the president’s dubious foreign policy agenda coincided with generous donations from foreign governments to her family’s personal foundation.
“An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth,” Hamilton warns, prescribing the review powers of the Senate as the remedy.
And lest apologists for Obama argue that the nuclear deal with Iran is not actually a “treaty,” but merely an “executive agreement,” Hamilton leaves no doubt as to the scope of arrangements to which the Senate’s review power applies.
“The power of making treaties,” he says, concerns “CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith” (original emphasis).
Congress should heed Hamilton’s warning before it is too late.
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….
ARTICLE II, SECTION 2, CLAUSE 2
Teacher’s Companion Lesson (PDF)
The Treaty Clause has a number of striking features. It gives the Senate, in James Madison’s terms, a “partial agency” in the President’s foreign-relations power. The clause requires a supermajority (two-thirds) of the Senate for approval of a treaty, but it gives the House of Representatives, representing the “people,” no role in the process.
Midway through the Constitutional Convention, a working draft had assigned the treaty-making power to the Senate, but the Framers, apparently considering the traditional role of a nation-state’s executive in making treaties, changed direction and gave the power to the President, but with the proviso of the Senate’s “Advice and Consent.” In a formal sense, then, treaty-making became a mixture of executive and legislative power. Most people of the time recognized the actual conduct of diplomacy as an executive function, but under Article VI treaties were, like statutes, part of the “supreme Law of the Land.” Thus, as Alexander Hamilton explained in The Federalist No. 75, the two branches were appropriately combined:
The qualities elsewhere detailed as indispensable in the management of foreign relations point out the executive as the most fit in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.
Another reason for involving both President and Senate was that the Framers thought American interests might be undermined by treaties entered into without proper reflection. The Framers believed that treaties should be strictly honored, both as a matter of the law of nations and as a practical matter, because the United States could not afford to give the great powers any cause for war. But this meant that the nation should be doubly cautious in accepting treaty obligations. As James Wilson said, “Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people.”
The fear of disadvantageous treaties also underlay the Framers’ insistence on approval by a two-thirds majority of the Senate. In particular, the Framers worried that one region or interest within the nation, constituting a bare majority, would make a treaty advantageous to it but prejudicial to other parts of the country and to the national interest. An episode just a year before the start of the Convention had highlighted the problem. The United States desired a trade treaty with Spain, and sought free access to the Mississippi River through Spanish-controlled New Orleans. Spain offered favorable trade terms, but only if the United States would give up its demands on the Mississippi. The Northern states, which would have benefited most from the trade treaty and cared little about New Orleans, had a majority, but not a supermajority, in the Continental Congress. Under the Articles of Confederation, treaties required assent of a supermajority (nine out of thirteen) of the states, and the South was able to block the treaty. It was undoubtedly that experience that impelled the Framers to carry over the supermajority principle from the Articles of Confederation.
At the Convention, several prominent Framers argued unsuccessfully to have the House of Representatives included. But most delegates thought that the House had substantial disadvantages when it came to treaty-making. For example, as a large body, the House would have difficulty keeping secrets or acting quickly. The small states, wary of being disadvantaged, also preferred to keep the treaty-making power in the Senate, where they had proportionally greater power.
The ultimate purpose, then, of the Treaty Clause was to ensure that treaties would not be adopted unless most of the country stood to gain. True, treaties would be more difficult to adopt than statutes, but the Framers realized that an unwise statute could simply be repealed, but an unwise treaty remained a binding international commitment, which would not be so easy to unwind.
Other questions, however, remained. First, are the provisions of the clause exclusive—that is, does it provide the only way that the United States may enter into international obligations?
While the clause does not say, in so many words, that it is exclusive, its very purpose—not to have any treaty disadvantage one part of the nation—suggests that no other route was possible, whether it be the President acting alone, or the popularly elected House having a role. On the other hand, while the Treaty Clause was, in the original understanding, the exclusive way to make treaties, the Framers also apparently recognized a class of less-important international agreements, not rising to the level of “treaties,” which could be approved in some other way. Article I, Section 10, in describing restrictions upon the states, speaks of “Treat[ies]” and “Agreement[s]…with a foreign Power” as two distinct categories. Some scholars believe this shows that not all international agreements are treaties, and that these other agreements would not need to go through the procedures of the Treaty Clause. Instead, the President, in the exercise of his executive power, could conclude such agreements on his own. Still, this exception for lesser agreements would have to be limited to “agreements” of minor importance, or else it would provide too great an avenue for evasion of the protections the Framers placed in the Treaty Clause.
A second question is how the President and Senate should interact in their joint exercise of the treaty power. Many Framers apparently thought that the President would oversee the actual conduct of diplomacy, but that the Senate would be involved from the outset as a sort of executive council advising the President. This was likely a reason that the Framers thought the smaller Senate was more suited than the House to play a key role in treaty-making. In the first effort at treaty-making under the Constitution, President George Washington attempted to operate in just this fashion. He went to the Senate in person to discuss a proposed treaty before he began negotiations. What is less clear, however, is whether the Constitution actually requires this process, or whether it is only what the Framers assumed would happen. The Senate, of course, is constitutionally authorized to offer “advice” to the President at any stage of the treaty-making process, but the President is not directed (in so many words) as to when advice must be solicited. As we shall see, this uncertainty has led, in modern practice, to a very different procedure than some Framers envisioned. It seems clear, however, that the Framers expected that the Senate’s “advice and consent” would be a close review and not a mere formality, as they thought of it as an important check upon presidential power.
A third difficult question is whether the Treaty Clause implies a Senate power or role in treaty termination. Scholarly opinion is divided, and few Framers appear to have discussed the question directly. One view sees the power to make a treaty as distinct from the power of termination, with the latter being more akin to a power of implementation. Since the Constitution does not directly address the termination power, this view would give it to the President as part of the President’s executive powers to conduct foreign affairs and to execute the laws. When the termination question first arose in 1793, Washington and his Cabinet, which included Hamilton and Thomas Jefferson, embraced this view. All of them thought Washington could, on his own authority, terminate the treaty with France if necessary to keep the United States neutral.
A second view holds that, as a matter of the general eighteenth-century understanding of the legal process, the power to take an action (such as passing a statute or making a treaty) implies the power to undo the action. This view would require the consent of the President and a supermajority of the Senate to undo a treaty. There is, however, not much historical evidence that many Framers actually held this view of treaty termination, and it is inconsistent with the common interpretation of the Appointments Clause (under which Senate approval is required to appoint but not to remove executive officers).
The third view is that the Congress as a whole has the power to terminate treaties, based on an analogy between treaties and federal laws. When the United States first terminated a treaty in 1798 under John Adams, this procedure was adopted, but there was little discussion of the constitutional ramifications.
Finally, there is a question of the limits of the treaty power. A treaty presumably cannot alter the constitutional structure of government, and the Supreme Court has said that executive agreements—and so apparently treaties—are subject to the limits of the Bill of Rights just as ordinary laws are. Reid v. Covert (1957). InGeofroy v. Riggs (1890), the Supreme Court also declared that the treaty power extends only to topics that are “properly the subject of negotiation with a foreign country.” However, at least in the modern world, one would think that few topics are so local that they could not, under some circumstances, be reached as part of the foreign-affairs interests of the nation. Some have argued that treaties are limited by the federalism interests of the states. The Supreme Court rejected a version of that argument in State of Missouri v. Holland (1920), holding that the subject matter of treaties is not limited to the enumerated powers of Congress. The revival of interest in federalism limits on Congress in such areas as state sovereign immunity, see Seminole Tribe of Florida v. Florida (1996), and the Tenth Amendment, see Printz v. United States (1997), raises the question whether these limits also apply to the treaty power, but the Court has not yet taken up these matters.
Turning to modern practice, the Framers’ vision of treaty-making has in some ways prevailed and in some ways been altered. First, it is not true—and has not been true since George Washington’s administration—that the Senate serves as an executive council to advise the President in all stages of treaty-making. Rather, the usual modern course is that the President negotiates and signs treaties independently and then presents the proposed treaty to the Senate for its approval or disapproval. Washington himself found personal consultation with the Senate to be so awkward and unproductive that he abandoned it, and subsequent Presidents have followed his example.
Moreover, the Senate frequently approves treaties with conditions and has done so since the Washington administration. If the President makes clear to foreign nations that his signature on a treaty is only a preliminary commitment subject to serious Senate scrutiny, and if the Senate takes seriously its constitutional role of reviewing treaties (rather than merely deferring to the President), the check that the Framers sought to create remains in place. By going beyond a simple “up-or-down” vote, the Senate retains some of its power of “advice”: the Senate not only disapproves the treaty proposed by the President but suggests how the President might craft a better treaty. As a practical matter, there is often much consultation between the executive and members of the Senate before treaties are crafted and signed. Thus modern practice captures the essence of the Framers’ vision that the Senate would have some form of a participatory role in treaty-making.
A more substantial departure from the Framers’ vision may arise from the practice of “executive agreements.” According to the Restatement of Foreign Relations Law of the United States, the President may validly conclude executive agreements that (1) cover matters that are solely within his executive power, or (2) are made pursuant to a treaty, or (3) are made pursuant to a legitimate act of Congress. Examples of important executive agreements include the Potsdam and Yalta agreements of World War II, the General Agreement on Tariffs and Trade, which regulated international trade for decades, and the numerous status-of-forces agreements the United States has concluded with foreign governments.
Where the President acts pursuant to a prior treaty, there seems little tension with the Framers’ vision, as Senate approval has, in effect, been secured in advance. Somewhat more troublesome is the modern practice of so-called congressional–executive agreements, by which some international agreements have been made by the President and approved (either in advance or after the fact) by a simple majority of both houses of Congress, rather than two-thirds of the Senate. Many of these agreements deal particularly with trade-related matters, which Congress has clear constitutional authority to regulate. Congressional–executive agreements, at least with respect to trade matters, are now well established, and recent court challenges have been unsuccessful. Made in the USA Foundation v. United States (2001). On the other hand, arguments for “complete interchangeability”—that is, claims that anything that can be done by treaty can be done by congressional–executive agreement—seem counter to the Framers’ intent. The Framers carefully considered the supermajority rule for treaties and adopted it in response to specific threats to the Union; finding a complete alternative to the Treaty Clause would in effect eliminate the supermajority rule and make important international agreements easier to adopt than the Framers wished.
The third type of executive agreement is one adopted by the President without explicit approval of either the Senate or the Congress as a whole. The Supreme Court and modern practice embrace the idea that the President may under some circumstances make these so-called sole executive agreements. United States v. Belmont (1937); United States v. Pink (1942). But the scope of this independent presidential power remains a serious question. The Pink and Belmont cases involved agreements relating to the recognition of a foreign government, a power closely tied to the President’s textual power to receive ambassadors (Article II, Section 3). The courts have consistently permitted the President to settle foreign claims by sole executive agreement, but at the same time have emphasized that the Congress has acquiesced in the practice. Dames & Moore v. Regan (1981);American Insurance Ass’n v. Garamendi (2003). Beyond this, the modern limits of the President’s ability to act independently in making international agreements have not been explored. With respect to treaty termination, modern practice allows the President to terminate treaties on his own. In recent times, President James Earl Carter terminated the U.S.–Taiwan Mutual Defense Treaty in 1977, and President George W. Bush terminated the ABM Treaty with Russia in 2001. The Senate objected sharply to President Carter’s actions, but the Supreme Court rebuffed the Senate in Goldwater v. Carter (1979). President Bush’s action was criticized in some academic quarters but received general acquiescence. In light of the consensus early in Washington’s administration, it is probably fair to say that presidential termination does not obviously depart from the original understanding, inasmuch as the Framers were much more concerned about checks upon entering into treaties than they were about checks upon terminating them.
- Michael D. Ramsey
- Professor of Law
- University of San Diego School of Law
The Pronk Pops Show Podcasts Portfolio
Read Full Post
| Make a Comment ( None so far )