The Ties that Bind

Eric LaMont Gregory

To what extent has the President eroded the 'advice and consent' function of the Senate? 

At a recent meeting of the Cincinnati East Tea Party, a patriot approached me, to ask about an article I had written  in which I stated that there was an agreement between Israel and the United States which calls for the United States to come to the defense of that nation if it is attacked.  “But there is no treaty between that nation and ourselves which compels us to do so,” he remarked.  “There is no treaty ratified by the Senate, but there are equally binding Executive Agreements and Accords which compel us to do,” I replied.  He then asked, “How could this be?”

The answer to that question goes to the heart of the relationship between the Executive and Legislative Branches of our federal government, and their constitutionally enumerated powers and responsibilities. 

First, it should be understood that the Senate does not ratify treaties, per se — the Senate approves or rejects a resolution of ratification.  If the resolution passes, then ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s).

Most treaties submitted to the Senate have received its advice and consent to ratification.  During its first 200 years, the Senate approved more than 1,500 treaties and rejected only 21.  A number of these, including the Treaty of Versailles, were rejected twice.

The main threat of erosion of Senate treaty powers comes not from the international agreements that are submitted to it as treaties, but from the many international agreements that are not submitted for its consent.  By concluding hundreds of executive international agreements, increasingly Presidents have made important international commitments that are considered politically but not legally binding.  These agreements and accords bypass the Senate and its role to give its 'advice and consent' to all international agreements which have the force of a treaty, that is, that bind the United States to terms of the agreement.

Maintaining the Senate role in treaties requires overseeing all international agreements to assure that agreements that should be treaties are submitted to the Senate.

It will come as a surprise to no one, that Congressional legislative powers have been eroded, and therefore the constitutionally enshrined system of checks and balances between the legislative and executive branches of our federal government have been blurred. 

The framers of the constitution sought to limit executive authority by requiring that the executive seek the advice and consent of the Senate in matters of international agreements, treaties, before they become ties that bind the United States to another country.  Successive presidents have circumvented the legislative powers of the Congress by the use of the Executive Order, and the treaty ratification powers of Congress by the issuance of Executive International Agreements.  Successive presidents have claimed that because the International Agreements they sign are politically but not legally binding, they are not required to submit such agreements to the Senate.   And, the war making powers of the Congress have been eroded by Accords signed between the Executive and not the Senate as enumerated among its powers in the Constitution.  The question becomes, where is the Senate?

As to the question of politically as opposed to legally binding agreements not requiring the advice and consent of Senate, as claimed by recent presidents?  In fact and in law, nothing could be further from the truth.  For an authoritative account of how the treaty ratification powers of the US Senate in relation to the use of Executive Agreements bypass the Congress and have eroded Senate powers, see the following:

TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, 

A  S T U D Y 

PREPARED FOR THE COMMITTEE ON FOREIGN RELATIONS UNITED STATES SENATE BY THE CONGRESSIONAL RESEARCH SERVICE LIBRARY OF CONGRESS

JANUARY 2001
http://www.gpo.gov/fdsys/pkg/CPRT-106SPRT66922/pdf/CPRT-106SPRT66922.pdf

The main conclusion of this study is that:

The main threat of erosion of the Senate treaty power comes not from the international agreements that are submitted as treaties, however, but from the many international agreements that are not submitted for its consent. In addition to concluding hundreds of executive agreements, Presidents have made important commitments that they considered politically binding but not legally binding. Maintaining the Senate role in treaties requires overseeing all international agreements to assure that agreements that should be treaties are submitted to the Senate.  In addition, it should be remembered that the Tokin Bay Resolution, passed by Congress, joint resolution (H.J. RES 1145), titled the Southeast Asia Resolution, granted President Johnson the authority to conduct military operations in Southeast Asia without the benefit of a declaration of war.  This is yet another example of the how our Congress has given even its constitutional powers over to the president, that is, the executive branch of our government.  The Resolution gave President Johnson approval "to take all necessary steps, including the use of armed force, to assist any Southeast Asian state  requesting assistance in defense of its freedom."  It was this resolution that propelled us into the Viet Nam War.

There are a host of Executive International Agreements in force today, such as, the Sinai Accords as well as the US agreement not to interfere in the internal affairs of Iran.  These agreements compel the United States to act or not to act in relation to other states although they have not been ratified by the US Senate.

And, when the bullets start flying ‘We the People of the United States, with or without the advice and consent of the Senate as prescribed by the constitution, will be at the trigger.

In conclusion, the constitutional role of Congress to make laws has been increasingly usurped by the Executive Branch of our government legislating by the issuance of the Executive Order.  The role of the Senate to ratify international agreements, treaties, is increasingly over shadowed by the presidents use of Executive International Agreements.  Our system of checks and balances is under threat.

Knowledge is the only true safeguard of liberty.