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…by and with the Advice and Consent of the Senate…..

March 8, 2015

By any definition, a treaty is a formal agreement between sovereign foreign nations.  Any agreement being negotiated between the US Department of State and the leaders of Iran is by definition considered a treaty.  I may not be a consitutional expert, but Article 2, Section 2, clause 2 states:

He (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; …..

This was one of the “checks” on the executive that was deliberated and included in the Constitution, with much discussion and thought at the convention.  While in the early years of the country there was some debate as to exactly at what point – during or after – negotiations and deliberations and “advice and consent” were to be provided, there was never any doubt about the clarity that the Senate needed to have input, be able to make changes to, and ultimately approve any treaty between a foreign power and our government.  You only need to look to Federalist 75 by Hamilton written under the name Publius, or any of the written debates during the constitutional convention and many of the documented ratification debates among the several states.  (See the Founders Constitution, Volume 2, page 29).

Justice Joseph Story, in his 1833 “Commentaries on the Constitution” said:

§ 1517. Some doubts appear to have been entertained in the early stages of the government, as to the correct exposition of the constitution in regard to the agency of the senate in the formation of treaties. The question was, whether the agency of the senate was admissible previous to the negotiation, so as to advise on the instructions to be given to the ministers; or was limited to the exercise of the power of advice and consent, after the treaty was formed; or whether the president possessed an option to adopt one mode, or the other, as his judgment might direct. The practical exposition assumed on the first occasion, which seems to have occurred in President Washington’s administration, was, that the option belonged to the executive to adopt either mode, and the senate might advise before, as well as after, the formation of a treaty.3 Since that period, the senate have been rarely, if ever, consulted, until after a treaty has been completed, and laid before them for ratification. When so laid before the senate, that body is in the habit of deliberating upon it, as, indeed, it does on all executive business, in secret,and with closed doors. The senate may wholly reject the treaty, or advise and consent to a ratification of part of the articles, rejecting others, or recommend additional or explanatory articles. In the event of a partial ratification, the treaty does not become the law of the land, until the president and the foreign sovereign have each assented to the modifications proposed by the senate. But, although the president may ask the advice and consent of the senate to a treaty, he is not absolutely bound by it; for he may, after it is given,still constitutionally refuse to ratify it. Such an occurrence will probably be rare, because the president will scarcely incline to lay a treaty before the senate, which he is not disposed to ratify.

Therefore, I’m mystified by this push in Congress to pass a bill (law) requiring that the President put any agreement before them before it can be considered adopted.  Would not the current Constitution allow for the Senate to have this power now?

The Founders were so leery of a strong executive having overreaching powers similar to a monarchy, that they built-in checks and balances to curb this possibility.  Whenever we see the President acting unilaterally, the first place to seek recourse is in the Constitution, where generally you can find a direct check against such actions by one or more of the co-equal branches.

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