Constitutional Corner – The Treaty Power

Constitutional Corner – The Treaty Power

The treaty-making power detailed in the Constitution has been hotly debated for at least the last 100 years. Found in Article 2, Section 2, Clause 2, the Treaty Clause reads: “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…”

Until the turn of the 20th Century, the treaty power was viewed traditionally: the President negotiated treaties with foreign countries and sent them to the Senate for ratification. If the Senate ratified the treaty with a 2/3 vote in approval, the treaty went into effect usually followed by legislation that formalized the government’s responsibilities under the treaty. Treaties themselves were traditionally viewed as any agreement between countries that bound the U.S. to action.

All this began to change with the presidency of Theodore Roosevelt, our 26th President. Roosevelt, who has been described by author Henry Adams as “pure act,” was the personification of progressivism. When someone who “loathed inactivity” (as historian Thomas Woods puts it) ascends to the Office of President, we should expect traditional presidential powers to expand. And expand they did. Roosevelt believed (and stated) that the President could “do anything that the needs of the nation demanded” unless expressly prohibited in the Constitution.

In early 1905, Woods writes, with its economy in shambles, the Dominican Republic was expecting a “visit” by some European power intent on protecting its defaulted loans. Roosevelt, employing his own version of the Monroe Doctrine, decided to head off such occupation and the resulting economic pillage. He secured an “agreement” that allowed the U.S. to take over the administration of the Dominican Republic’s customs collections offices, their chief source of revenue.   The agreement was concluded, and set to take effect a mere 11 days after it was signed, hardly enough time for measured discussion and ratification by the Senate. The Senate immediately objected, insisted the agreement constituted a treaty, and demanded adequate time for debate and ratification. After the agreement/treaty was submitted to the Senate, a special session was held to discuss it and concluded without taking a vote.

Roosevelt, piqued, responded by drawing up what today we call an executive agreement and proceeded to implement it on his own. In his autobiography, he wrote: “I went ahead and administered the proposed treaty anyhow, considering it as a simple agreement on the part of the Executive which could be converted into a treaty whenever the Senate acted.” The Senate later did approve a modified version of the treaty, but Roosevelt wrote that: “I would have continued [the treaty] until the end of my term, if necessary, without any action by Congress.”

Our current controversy over the Treaty Power involves President Obama’s “agreement” with Iran over its barely concealed program to acquire a nuclear weapon, which presumably it would use to carry out its oft proclaimed destruction of the nation of Israel. Many forget that Iran’s program dates to the early 1990’s when it hired Pakistani nuclear scientist Abdul Qadeer Khan to setup the program. Today, many believe Iran is only months, perhaps weeks from creating enough enriched uranium for their first weapon.

When the Obama administration announced progress towards an agreement that Iran seemed willing to sign, Congressional lawmakers insisted any “agreement” would constitute a treaty and must be offered to the Senate for ratification.   Obama responded by saying “If Congress kills this deal, not based on expert analysis and without offering any reasonable alternative, then it’s the United States that will be blamed for the failure of diplomacy.” Like his bullying of the Supreme Court over Obamacare, the President’s message appears to have been received loud and clear.

Oddly enough, and so convenient for the President, the ranking Democrat on the Senate Foreign Relations Committee, Bob Menendez, who was co-sponsoring a bill that would block the administration from lifting any sanctions against Iran for 60 days, presumably enough time for the Senate to debate the merits of the “agreement,” stepped down last week from his leadership position after being indicted on corruption charges — surely just a coincidence.

Now Senate Foreign Relations Committee Chairman, Bob Corker (R-TN) is proposing Senate Bill 615: “To provide for congressional review and oversight of agreements relating to Iran’s nuclear program, and for other purposes.”

Journalist Andrew McCarthy thinks Corker’s bill, surprisingly supported by the President, is an underhanded way for the Senate to divest itself of its Constitutional treaty duty. “The Corker bill is a ploy to circumvent this constitutional roadblock. That is why our post-sovereign, post-constitutional president has warmed to it.” The bill would basically allow the President to conclude whatever “agreements” he wants and Congress would have a specified time, perhaps as little as 30 days, to indicate its disapproval with a vote of both houses. Of course, due to the pesky cloture rule in the Senate, a mere 40 Senators could block any disapproval resolution and thus give the President his treaty.

This turns the Treaty Clause on its head, and gives the President nearly everything he wants, thus his tacit approval. It also means that Congress has given up on insisting that any agreement between two nations is a treaty. Essentially, Senator Corker has re-written the Constitution.

Some may charge that this conclusion reaches too far, since the Corker bill only applies, theoretically, to Iran; at least that’s what it says in black and white. But then there’s the silly notion of precedent, something the judicial system likes to invoke from time to time. Precedent is precedent, whether it occurs in the legal world or the legislative world. Once the Senate states that they no longer have to ratify such things, what President will be able to resist the siren call of “executive agreement?”

Of course, as is normal, the American people aren’t being consulted on this by Congress. There are no Townhalls scheduled to discuss the wisdom of this unprecedented move. So the bill is likely to pass, unless of course the American people, who typically don’t pay attention to such trivial matters, somehow get wind of it, somehow understand it for what it is, and then protest in numbers sufficient to give Senator Corker and the others on the committee pause. That is unlikely to happen.

And so the President will have his interim agreement; and unless it is found to contain something truly dreadful — something that alarms even the 40 Senate “blockers” — Iran will probably get what it set out to achieve: a lifting of sanctions without having to suspend its program altogether, only a shutting down of a few of its centrifuges. This will merely delay Iran from achieving its ultimate goal by a few years, and push the problem into some else’s presidency. Neat.

Meanwhile, the Constitution gets yet another chink in its armor.

The WFYL “Constitution Matters” panel will be discussing this issue tomorrow morning, 24 April 2015, 7-8am EDT. You can listen to the live broadcast via Click on “Listen Live.”

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. Comments on this essay and ideas for future essays should be sent to