Friday, November 06, 2009

Agreements are Not Treaties. Agreements are Therefore Not Constitutional

The Constitution is very clear on how the United States must go about making commitments to other nations. Every such accord must be ratified by a two-thirds majority of the Senate in order to take effect. This, specifically, is called a treaty. In the last several decades, this requirement has been skirted more and more often. Now, nearly always, an "agreement" is used instead. Sometimes the agreement between the President and another country doesn't even get voted on in congress.

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Up until tonight, I had thought that the North American Free Trade Agreement was really a treaty, but that the acronym NAFTT just didn't have quite the right ring to it. The reality, however, is that NAFTA is a mere "agreement", which doesn't have the force of Constitutional validity. The 61 votes that NAFTA received in 1993 did not constitute enough votes for it to become a "treaty".

Article VI of the Constitution says that
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...
The Constitution carefully describes what constitutes a treaty. In describing the authorities of the President, Article II states that
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
If two thirds of our 100 Senators do not concur, then it does not become a treaty. If it fails to become a treaty, then the agreement with foreign nations cannot be binding on the United States or any of the separate states of the Union.

Further confusing the issue is the treaty called the General Agreement on Tariffs and Trade. I am unsure of how the voting went when GATT was first instituted in 1947, but, if it hadn't done so before, in 1994 GATT did take on the full force of treaty due to a 76-24 vote in the U.S. Senate. Yet it is still referred to as an "agreement". C'mon--GT3 (General Treaty on Tariffs and Trade) sounds at least as cool as GATT!!

Michael I. Meyerson points out in his book Liberty's Blueprint, that
The treaty provision--with its requirement of approval by two-thirds of the Senate--was meant to be the exclusive means for making binding agreements between the United States and other nations. In the past seventy-five years, however, presidents have taken to using agreements rather than treaties to make binding commitments with other nations.
In the 2003 case "American Insurance Association v. Garamendi", the Supreme Court, by a bare majority, incorrectly decided that an "agreement" signed by President Bill Clinton and German Chancellor Gerhard Schroeder could supersede California's Holocaust Victim Insurance Relief Act, even though Clinton's "handshake" with Schroeder was never even presented to Congress for ratification, let alone voted on.

Why is it that, since 1960, approximately 95% of pacts with foreign nations have been formalized by "agreement" rather than treaty? Because it's much easier. Unfortunately, though, the fact that treaties are mentioned in the Constitution while "agreements" are not makes it clear that one method can be used for forming alliances with foreign governments, while the other method cannot be used, regardless of how much easier it might be.

Interestingly, due to the fact that members of the House of Representatives were to be (and still are) elected by the people at large, the House was purposefully excluded from participation in the treaty-making power. It's all the more ironic then, that--to give modern-day "agreements" a flavor of Constitutionality which they do not deserve--the House of Representatives is almost always included in the voting on agreements that have the good fortune of ever making it to the Congress.

Until the unfortunate advent of the 17th Amendment to the Constitution, Senators were appointed by the Legislatures of the States in which they resided. The two-thirds requirement of treaty-making power implied essentially, then, that two-thirds of all the states were in agreement with the president that a treaty should take effect.

So, what's the big deal, you say? After all, currently, agreements are decided by a majority (more than 50%) vote of both houses of Congress. The big deal is that 67 is 34% more than 50. John Jay, one of the authors of the Federalist Papers, wrote
Who can think it probable that the president and two thirds of the senate will ever be capable of such unworthy conduct [of making a treaty that is not of general benefit to the United States]?
On the other hand, is it probable to think that the president, with only 51 members of the Senate--or the President all by him/herself--could be capable of such unworthy conduct?

It's much more probable. Look around you. It's beginning to happen all the time.



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