Politics Magazine

Congress is Wheelin’ and Dealin’

Posted on the 21 July 2015 by Adask

Deal2Today, The Washington Examiner published an article entitled “Kerry:  U.N. has the right to vote on Iran deal before Congress.”  The article focused on the recent preliminary agreement between Iran and the U.S. on the subject of nuclear weapons for Iran.

Including the headline, the article has 260 words.  The word “deal” appeared five times.  The word “treaty” didn’t appear even once.

Of course, The Washington Examiner article was not a Supreme Court decision.  We can’t assume that the article’s word choices reflect the actual law and relies on legal terms.  Still, it’s odd that the article repeatedly describes this agreement between the nations of Iran and the U.S. as a “deal” but never once called it a “treaty”.

Shouldn’t we expect that an agreement between two nations would be called a “treaty”?

The article reads,

“Secretary of State John Kerry deflected bipartisan criticism of the Obama administration’s move to take the Iran nuclear deal to the United Nations before the U.S. Congress has the opportunity to vote on it, saying the U.N. has a right to go first and to suggest otherwise was “presumptuous.”

“Obama had previously signed legislation that would give Congress 60 days to review and vote on the deal struck over Iran’s nuclear program.”

When the article talks about “Congress” voting on the “deal” and “legislation” giving “Congress” 60 days to review the “deal,” I assume that they’re using the term “Congress” to mean the “House of Representative”—but not the Senate.

After all, the Senate is empowered and required by the Constitution to give “Advice and Consent” to treaties negotiated by the President.  But there’s no constitutional proviso of which I’m aware that requires or even allows the House of Representatives to participate in deciding whether a treaty between the U.S. and some foreign nation should or should not be “ratified”.

So far as I know, there are only three sections of the Constitution that deal with “treaties”:

  1. Article 1, Section 10, Clause 1: “No State shall enter into any Treaty. . . . “

That means no State of the Union can independently enter into any Treaty with a foreign nation.

  1. Article 2, Section 2, Clause 2: “The President . . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided that two thirds of the Senators present concur . . . .”

The Senate has constitutional power to ratify Treaties negotiated by the President.  But, there is no constitutional proviso for the Congress (House of Representatives) to ratify or approve treaties. . . . 

  1. Article 3, Section 2, Clause 1: “ The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the laws of the United States, and Treaties made or which shall be made, under their Authority—“

The word “their” in the previous clause appears to refer to “United States”.  “Their” is plural.  It follows that the term “United States” must also be plural and therefore signifies the “several United States”—implying that the “Authority” to ratify constitutional Treaties lies with the Senators representing the States of the Union (“The United States of America”).

•  There’s no proviso in the Constitution for ratification or even approval by the “Congress”.  This omission explains why Obama had previously signed legislation to allow Congress 60 days to review and vote on the Iranian “deal”.  The House of Representatives is not authorized by the Constitution to participate in the ratification of treaties, but it it is “authorized” by statute enacted by the House, Senate and President.

Presumably, if Congress votes against the U.S./Iran nuclear “deal,” it will be rendered void.

But what, exactly, is this “deal”?  If it’s not to be ratified by the Senate but does require validation by the Congress, it is not a constitutional “treaty”.

So what is it?

  • More, 17th Amendment (A.D. 1913) declares that:

“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof for six years; . . . .”

Prior to the 17th Amendment, Senators were elected by the legislatures of each State of the Union—not the people.  The Senators therefore represented the States’ legislatures rather than the State’s people.  Under the Constitution, the Senators who represented the State legislatures were empowered to “advise and consent” to treaties on behalf of the State legislatures.

Prior to the 17th Amendment, Article 3, Section 2, Clause 1 declared,

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the laws of the United States, and Treaties made or which shall be made, under their Authority—“

The “judicial power” of the Article III courts only applies to “Treaties made” under the “Authority” of the States of the Union.   If the Senators are no longer elected by the legislatures of the States of the Union, does any constitutional ratification process by the Senate (or the House) remain under the “Authority” of the States of the Union?

If not, what is the legal nature of the “deals” we are reaching with foreign countries?

If those “deals” aren’t subject to the jurisdiction of Article III judicial courts, are they only subject to administrative law and administrative courts?

Since the 17th Amendment requires Senators to be elected by and therefore represent the people or perhaps only US citizens rather than the State legislatures, what does this mean for the modern Senators’ “authority” to ratify Treaties?

Has the Senate legitimately ratified any treaty on behalf of the States of the Union since A.D. 1913?  Can the modern Senate legitimately ratify any treaty, except on behalf of the States of the Union?

When the House of Representatives votes on and figuratively ratifies a “deal” today, is that ratification on behalf of States of the Union (“The Unite States of America”) or on behalf of the “United States”?

The article continues:

“But since agreeing on the deal with the other world powers, the administration has announced its intention to bring the deal to the United Nations first.

“Thus, by the time Congress votes, the administration will argue that were the body to reject the deal, they’d be blowing up a U.N.-approved agreement.”

Implication:  Obama and Kerry don’t expect the Iran nuclear “deal” to pass Congress.  They will therefore try to get the UN to first sanctify the “deal” in order to intimidate the Congress into ratifying.

My thought on this is “Who, under the Constitution, gives a damn as to what the U.N. does or doesn’t do?”

Why should the U.N. have any say or influence over whatever “deals” are ratified by the House of Representatives?

The fact that the U.N. does appear to have a say or influence over U.S. “deals” with foreign countries is more evidence that these “deals” are not constitutional “treaties” but may be some sort of international law under the auspices of the U.N..

 “In an interview airing Sunday on ABC’s “This Week,” Kerry said of the U.N. voting first, “They have a right to do that. Honestly, it’s presumptuous of some people to suspect that France, China, Russia, Germany, Britain ought to do what the Congress tells them to do. They have a right to have a vote.”

Say whut?  Foreign countries have a right to vote on the U.S./Iran “deal”?

I agree that, under the Constitution, Congress shouldn’t have any control over France, China, Russia, Germany and other foreign countries.  I also agree that, under the Constitution, those same foreign countries shouldn’t have any control or influence over Congress.

So, what is Secretary of State Kerry talking about when he claims that foreign countries have a “right” to vote on a “deal” that is presumably between only the U.S. and Iran?   Is this “deal” really a treaty between the U.S. and Iran?  Or is this “deal” between Iran in the U.N.?

I don’t know what this “deal” between U.S. and Iran is.

I do know what it’s not:  It’s not a “treaty” as referenced at Article 2 Section 2 clause 2 and Article 3 Section 2 Clause 1 of the Constitution of the United States.

•  More, I don’t know what the nature of the upcoming Trans Pacific Partnership (TPP) agreement is, but I’ll bet that it’s another “deal” rather than a constitutional treaty.  I might be “mis-remembering” (thanks for that term, G.W.B.), but if I recall correctly, the Congress has authorized the President to engage in “Fast Track” negotiations with the TPP.  “Fast Track” (if I recall correctly) allows the House of Representatives to vote on validating the TPP “deal”.

If I’m remembering correctly, all of this suggests that the “deals” with foreign countries that are validated by the House of Representatives rather than the Senate are not part of the “supreme law of the land”.  They are almost certainly the product of administrative law that is not mandatory for the people within the States of the Union.

I wonder how many previous “deals” with foreign countries have been validated by the House of Representatives rather than ratified by the Senate.  I wonder how many of those “deals” have been used as a basis for modifying American law.   How many of those “deals” affect your driver licenses,  “sanctuary cities,” passports, identification documents, Agenda 21 or access to banking services?

I doubt that any of the “deals” validated by Congress (rather than the Senate) have any legal authority except under administrative law.  As I’ve tried to describe elsewhere, administrative law is not mandatory for the people of The United States of America.  (See the category, “Administrative Law”.)

So, what is the legal jurisdiction, power and effect of these “deals”?


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