Hundreds of articles and broadcasts recently have been written or aired posing the question, “Should Congress pass the Iran Deal?” All demonstrate a lack of constitutional knowledge and the establishment media, ignorantly or knowingly, omits the constitutional perspective in the proposed Iran Treaty, which we give here. Were the Constitution actually used as intended by the Founders, and as used for 150 years, the Iran Treaty would be dead on arrival. Unfortunately the perversions of the constitutional treaty-making process allow faulty treaties to become reality.
The typical definition of congress, and the one used by the media, includes both the U.S. Senate and the U.S. House of Representatives. For the House to have a vote would be unconstitutional, as the Constitution clearly gives this function to the U.S. Senate alone. Article II, Section 2, Clause 2 of the Constitution says that 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 advice function is performed during the creation of a treaty and the consent function is thereafter, once an agreement is presented to the Senate. Many presidents have not sought the advice of the Senate when they created treaties and certainly Barack Obama has shown no tendency to do so either, preferring to prepare a treaty without any advice from it. So this part of the treaty-making process has effectively been handed to the executive branch some time ago.
Obama’s violation of the Constitution goes even deeper. In calling it a “deal,” rather than a treaty, he hopes to blur the difference and bypass the Senate roll required by the Constitution. If treated as a law, rather than a treaty, he is only required to obtain a mere majority vote of each house which is infinitely easier to get than 2/3rds of a senate controlled by an opposing party. He than can override an opposing vote should it come. This would give a president, any president, far more power than intended by the Framers. The Senate function has no presidential veto and stands on its own. The treaty must get the approval of 67 senators or it is dead as it stands. Knowing this a president is far more likely, from the beginning, to work with the Senate to vastly improve a favorable outcome.
Throughout history a treaty has been defined as any agreement between two or more countries. Presidents, anxious to expand their powers beyond constitutional limits, began to look for ways of doing so and their obedient followers gave no resistance. Probably the first to intentionally do this was President Franklin Delano Roosevelt who began calling treaties, that he feared might not get the required 2/3rds Senate vote, executive agreements, a term not mentioned in the Constitution but uncontested by his vast following. He could now unilaterally approve everything internationally that he did. This was one reason that after his death his own political party supported the two-term limitation on the length of time a president served. Presidents become too powerful, but the precedent of avoiding the term treaty in favor of agreement and going the back door route for implementation continued.
President Bill Clinton, realizing that on NAFTA (the North American Free Trade Agreement) he could not get a two-thirds vote for treaty confirmation in the Senate as required, purposely used the word agreement rather than treaty, thus treating it as a law, which then required only a simple majority of both houses of Congress for confirmation. He used the same unconstitutional technique on his second major treaty of his two terms in office, GATT — General Agreement on Tariffs and Trade.
So constitutionally deteriorating has our treaty making process become — even for Americans — the U.S. Senate last March felt they needed to advise the Iranian government that promises of any president required confirmation by them. And if bypassed, which the Senate feared might happen with Barack Obama in office, a predecessor could reverse such. We are different from most countries in the world in this respect. The leaders of the Islamic Republic of Iran were advised by the letter of the separation of powers in the Constitution between the executive branch, which makes international agreements, and the legislative branch that must approve such; that a treaty must be ratified by two-thirds of the Senate; and that without this majority vote of Congress it is merely an executive agreement and potentially meaningless after, in this case, Obama leaves office. It ended: “We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.”
The Obama deal would require a 2/3rds negative vote of both houses for override and defeat. Under the Constitution his treaty would require a two-thirds vote for its approval. The constitutional way is much more difficult to obtain and improves the probability of better treaties. Both political parties must return to the constitutional treaty making provisions. Again, the Constitution as used for most of our history would leave the Iran Treaty dead on arrival because if it could not get the 2/3rds vote of the Senate confirming, it ends. The Senate, not the president, has final say.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.