The Treaty Clause empowers the President to negotiate treaties, accords, and agreements with other nations that will benefit the Union. Treaties are required under the clause to receive advice and consent from two-thirds majority of the US Senate at which time they become International Law.
That’s a simplified version and for sake of this discussion The Treaty Clause has been cited in opposition to the Iran Nuclear Agreement previously enacted by the Obama Administration and the United Nations Security Council.
But as things go, it’s a bit more complicated than it appears on the surface and both those who support the agreement and those opposed have made some interesting points when it comes to the pro and cons. One thing that remains a hot topic of debate is the constitutionality of non-binding executive agreements.
Arms control agreements are often ratified by the treaty mechanism as cited by the Analysis of Congressional-Executive Agreements in the American Journal of Law and can be further analyzed here: https://scholarship.law.berkeley.edureferer
While opponents to these types of agreements might wish they could rely on the Treaty Clause to nullify them, these agreements, though not ratified through Senate approval, are legitimate. But are they actually useful in the long term?
The Iran Nuclear Agreement was a short-lived feather in the cap of the Obama legacy as President Trump quickly dismantled it in the early days of his presidency thus moving his agenda forward and keeping a corner-stone campaign promise.
So are these costly and non-binding negotiations done in the best interest of the Union as per the constitution, or are they being used as instruments in the political tool box of whomever is occupying the White House? Whether it’s on the negotiating end or the dismantling after the fact, are our leaders putting the Nation’s interest ahead of their own? It’s terribly dangerous to have rouge nations with their fingers on a button that can potentially annihilate large portions of the planet. So nuclear disarmament treaties seem to be the way to go. If they can’t be obtained through bi-partisan agreements with Senate approval, should they be gotten by any means necessary – and what is the cost to the Union if that’s the case?
If we look at some of the arguments from both sides there was obviously little bi-partisan agreement and each side had strong statements to make, but in the end there was no way to get the votes needed to ratify the Iran agreement when going by the rules according to the Treaty Clause. This isn’t unprecedented and executive agreements have given us presidential right-of-way for decades.
Those supporting the Iran deal believe that it was designed to block the pathway to nuclear proliferation for Iran and provide a means of verification and inspection that would compel them to comply and cooperate. In exchange certain sanctions would be lifted and the US would pump billions into the Iranian economy while giving the security needed to control movement toward a growing nuclear arms program. Jill Stein, who supported the deal went so far as to say this deal would be the first step to a nuclear-free middle east and eventually the world could be free from nuclear arms. Uh huh, dream on Jill – Israel will not be negotiating away their nuclear weapons anytime soon.
None of the former Republican presidential candidates supported the agreement and most believed it was nothing more than a billion dollar signing bonus for Iran that would be used to fund terrorism throughout the middle east and further plunge the region into a contest for nuclear arms. Even supporters had concerns that the upfront payment would eventually be funneled to terror groups.
However there are experts from The Center For Strategic and International Studies who closely monitor Iran’s creep toward nuclear weapons capabilities and think the program had merit and would dial back their abilities for at least the next 10 years.
Now that the deal has been shut down by the Trump administration we have lost the ability to monitor the Iranian nuclear program leaving very real opportunities for the middle east to ratchet up a nuclear arms race. Critics have been outspoken about wanting an agreement in the region that completely dismantles all nuclear programs (including energy) but that deal was never going to happen. Supporters agree the deal wasn’t perfect but what it put on the table was time and the ability to go in and inspect. Tanking the plan without having any re-negotiation strategy has likely set back relationships in the area that will make diplomatic solutions a bit trickier and leave non-nuclear middle eastern nations vulnerable.
So back to the question… what does all of this have to do with the constitution? Probably not as much as pundits on both sides would want you to think. Its kind of a ‘go-to’ strategy to label all things unconstitutional these days when there are opposing political factions involved. Few politicians (and even fewer trolls) bother to actually verify the constitutionality of an issue before dragging it through the twitter-sphere until their thumbs go numb.
Since there was no way the Republican lead Senate was going to ratify the treaty through a conventional two-thirds majority vote, the only way to make it legally valid without congressional approval was through a non-binding executive agreement. That left the door wide open for a future president (who knew it would be this one) to renege at anytime and that’s exactly what happened. Like I said, no one actually saw this president coming when the decision was made to enact the executive agreement.
At the forefront of the Founders goals for our nation in drafting a constitution for The People, meaning the Union, was the idea that we must insure a separation of powers and have executive oversight by the National Congress. In terms of constitutional interpretation of the Law of the Land they allowed for the Judiciary to step in when necessary to rule on those laws. While to many the Iran agreement may seem like an unconstitutional delegation of legislative power, the modern day Supreme Court is permissive on the subject and not likely to rule. Especially considering the number of times that executive agreements have been used in the past, it’s not a precedent.
But I have to wonder if such sweeping authority by any sitting president, regardless of intent and trustworthiness should legislate without majority approval and congressional oversight. If the constitution is the law of the land and though this type of measure isn’t illegal, it seems that the best interest of the union isn’t being served by circumventing the treaty clause. The Congress is elected by the people to give them a voice and when that voice is no longer heard then are we actually a nation of ‘We the People’.
One last footnote – the Iran Nuclear Agreement signed by executive agreement by President Obama was part of an International agreement approved by the UN Security Council in accordance with the UN Charter which was ratified in the US in 1945.