[quote]pushharder wrote:
[quote]Bismark wrote:
[quote]pushharder wrote:
Maybe I missed it but I don’t believe it’s come up here yet about the unconstitutional end-run once again Obama is trying to pull off by labeling this as an agreement and not a treaty (subject to Senate approval).
Even liberal Chuck Schumer (likely the next Democrat Senate Majority leader) is squawking.[/quote]
The Constitution does not define the term treaty, but has two relevant provisions dealing with treaty practice. Under Article II, section 2.2, the president has the power with “the advice and consent” of two-thirds of the Senate to make treaties. The president ratifies and proclaims treaties, not the Senate. Article VI, section 2, declares that “all Treaties made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby.” In addition to “treaties”, the president has the power to make other international agreements (1) on the basis of congressional authorization, (2) on the basis of his own foreign relations power, or (3) on the basis of authority contained in an earlier treaty made pursuant to Article II.
If the Joint Comprehensive Plan of Action results in a final agreement, it will not be a bilateral agreement between Iran and the US, but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council, and will also be endorsed by a Security Council resolution. Congress has no authority in regard to the dealings of the UNSC, and has no power to veto any resolutions that body may conclude. Executive agreements do not require the Senate’s final approval. They are binding international obligations made solely by the executive branch. According to international law, Congress may not modify the terms of the agreement at any time as they claim, and if Congress adopts any measure to impede its implementation, it will have committed a material breach of US obligations. Article 25 of the UN Charter states that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. Even if congress abrogates a final agreement, this will not relieve the United States of its international obligations. I draw your attention to the reasoning of the District of Columbia Court of Appeals in Diggs v. Schultz (1972).
“We think that there can no blinking the purpose and effect of the Byrd Amendment. It was to detach this country from the U.N. boycott of Southern Rhodesia in blatant disregard of our treaty undertakings.”
Article 27 of the Vienna Convention on the Law of Treaties holds that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” This may not seem applicable to a congressional abrogation of a potential P5+1 deal because the aforementioned Vienna Convention has not been ratified by the U.S, However, insofar as Article 27 reflects a codification of customary law, and arguably, a peremptory norm, the U.S. would not escape the onus of violation. Pacta sunt servanda - treaties must be honored - is an undeniable and unambiguous example of international customary law. Domestic noncompliance with a UNSCR would be a clear and blatant material breach of American obligations.
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Yep, part of the end-around is labeling it an “executive agreement” and shifting the ratification to the UN instead of the US Senate. Not constitutionally sound despite any other examples you may cite. Remember, the executive branch has been on an illegal power grab binge for a couple or more generations so citing other examples doesn’t validate your position that it’s A-fooking-OK.
Also, you are completely incorrect with your assertion that “the President ratifies treaties.” He is to negotiate them but he can’t “ratify” them. To ratify means to give formal consent to an agreement making it officially valid. The President can’t give formal consent to something he’s negotiated; that’s the Senate’s job.
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Executive agreements are constitutionally valid; the Supreme Court has stated as much on multiple occasions. Again, the president has the power to make other international agreements (1) on the basis of congressional authorization, (2) on the basis of his own foreign relations power, or (3) on the basis of authority contained in an earlier treaty made pursuant to Article II. Only one of the three criteria needs to be satisfied.
Oh? The Senate itself disagrees with you, despite what Senator Cotton and his ilk may contend. The Constitution says as much.
https://www.senate.gov/general/Features/Treaties_display.htm
“The Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification.”
