When is a treaty not a treaty?
Obama’s Iran deal has generated enormous anger, and some of that ire has been directed at the Republicans in Congress.
One of the main accusations against them is that they have made Obama’s task easier by passing Corker-Menendez, a bill that allows them to stop the president from lifting the Iranian sanctions unilaterally, but only with a super-majority because Obama could (and indeed would) veto the bill. Then Congress would end up needing a 2/3 majority of both houses to stop him.
Why do it that way, critics ask, instead of the simple route of exercising the Senate’s treaty power (under Article II Section 2 Clause 2 of the Constitution) to advise and consent? That would require a two-thirds vote before the treaty is approved rather than requiring a two-thirds vote to stop it.
But what a great many critics fail to appreciate is how watered-down the Senate’s treaty power has already become ever since FDR, and how much the de facto power of the executive to make international agreements without Congress’ say-so has expanded.
It’s well worth your time to listen to an interview on the subject with Elizabeth Chryst, who is a former elected officer of the U.S. Senate and an expert on how Congress works in terms of rules and procedures. In this recording, she speaks on the subject of the Corker-Menendez bill and why conservatives are dreaming if they think there was ever any chance of blocking the Iran deal as a treaty.
That’s not a reality that Chryst likes, and she knows that her fellow conservatives are very unhappy to hear it; but she thinks it’s a reality they need to face.
Chryst’s basic point is that beginning with FDR the practice of concluding a treaty-like international “deal” and bypassing Congress by regarding it as an executive action rather than a treaty has become fairly commonplace and has been regularly approved by the Court. In fact, as political science professors Glen F. Krutz and Jeffrey S. Peake point out:
Since the 1940s, the vast majority of international agreements have been completed by presidents as executive agreements rather than as treaties. This major policy evolution occurred without changes to the Constitution, though Supreme Court decisions and practice by the political branches have validated the change. This has led some scholars to conclude that the treaty power “has become effectively a Presidential monopoly” (Franck and Weisband 1979: 135; see also Corwin 1984).
With the Iran deal, Obama appears to be taking that monopoly one step further. I am no expert on the historical use of the executive agreement instead of the treaty power, but has there ever before been a president so determined to defy the will of the majority of Congress, including not just the opposition party but significant numbers in his own party, in order to conclude a precedent-setting and conciliatory arms agreement with an enemy of 35-years duration?
So it’s no wonder that Congress was not content to allow Obama to call the Iran deal an executive agreement and to leave it at that. Corker-Menendez was an attempt to open up another avenue of opposition to the bill, not to close one down. And Corker-Menendez had the decided advantage of significant bilateral support, enough to discourage Obama from attempting to veto it because he knew the veto would be overriden.
So please take a few minutes to listen to the Chryst interview. The most important part takes place from minute 17:25 to 27:12, and another part begins around minute 37:00 and goes to about 48:30. If you only have time to listen to one of those segments, I’d suggest the first one. But I strongly urge you to hear both of them.
It is no mystery why so much ire is being directed at Corker-Menendez.
People on the right are extremely frustrated and angry at how many times Obama has succeeded in defying the Republicans even though the GOP became the majority party in Congress this year. I share that frustration and anger. I further hope, if Obama does veto the results of a vote under Corker-Menendez to keep the sanctions, that there will be enough votes to override that veto.
But if not (and it is highly likely that the override will not succeed), then the Senate could still vote to reject the Iran deal under the seemingly long-lost treaty power. As Chryst says in the interview, facts are facts, and such a vote would probably be the equivalent of mere theater because Obama would claim that the deal is an executive action and SCOTUS would almost certainly back him up on that.
However, Corker-Menendez is most likely a bona fide effort by Congress to take at least some of its power back. There are plenty of reasons to be frustrated with the Republicans in Congress. Corker-Menendez doesn’t appear to be one of them.
[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]DONATE
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