Perhaps it’s the cynic in me complaining, but doesn’t President Obama need the Senate’s two-thirds “advice and consent” before ratifying foreign treaties?
Of course, had Bush done this, you all would have burnt the White House down. But now it’s ok? This is an impeachable offense.
Or do the ends justify the means? Or is this just the beginning of the end?
Please share widely!
If you want to raise a serious question about abuse of the Constitution, I’m all ears. There are few checks on Obama right now, and an immediate precedent of, to put it politely, expediency. The administration should be watched.
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p>If you’re trying to make a cheap point, call us hypocrites, or exaggerate our justified concerns about Bush excesses, I’m not all ears.
JimC, am I reading the following reporting all wrong? Here’s the led:
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p>The operative words … “new terms” and “new deal.” If ABC mis-reported senior White House official Gary Samore’s comments, then it’s a different story. But why even report the “may bypass” angle if ratification is unnecessary? What’s Jake Trapper talking about?
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p>Doesn’t continued enforcement even of an expired treaty REQUIRE Senate ratification?
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p>What if the report means, as I think it means, enforcing new terms of an whole new and unratified START agreement?
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p>The White House is talking about new terms which belong to a new treaty. The White House has now suggested those new terms of a new and unratified treaty may be enforced until Senate ratification of the new treaty is possible.
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p>I have a problem with that, you know, upholding the Constitution and other quaint throwbacks. Don’t you?
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Fair question:
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p>I don’t know the answer.
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p>Unfair question:
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p>”Burnt the White House down” — oh yes, like we did in 2001, 2002, and 2005. That tone taints the whole diary.
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“but now it’s ok?” Not “burnt the White House down.”
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p>You don’t have to answer it.
The question makes no sense without the burnt sentence.
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p>I should stop feeding you, and you should stop trolling.
We seem to have arrived at the same conclusion, JimC, by different paths.
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p>This is not ratifying a treaty. It’s agreeing to continue inspections mandated by a previous one. There’s no Constitutional issue here.
If it’s enforcing the existing START treaty up until December 5th, then why the “may bypass” reporting from Jake Trapper?
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p>Or are you saying it’s OK, on Executive Order, to continue to enforce an expired treaty? Am I wrong in thinking the president MUST have the US Senate re-ratify an expiring treaty?
…you are wrong if you are submitting that the President has no legitimate authority to enter into executive agreements with foreign nations without the advise and consent of the Senate. The President can enter into any executive agreement that he like as long as it it not controvened by the Constitution or other duly enacted federal law in force. There is no proposition of law that says the President cannot execute an executive agreement simply because the subject matter involved used to be covered by a duly ratified treaty that has expired. This is not an unconstitutional exercise. As long as the elements of the agreement require only the resources over which the President exercises control, there is no need for ratification or executing legilation. If the agreement concerns resourses outside of the President’s control it is not unconstitutional, just unenforceable as to the outlying resources.
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p>So, yes, you are wrong. The President can, by executive agreement, extend the provisions of an expired treaty, while awaiting the Senate’s action on ratifying the new treaty without acting outside the bounds of the Constitution.
Headline: “US-Russian Arms Negotiators “Under the Gun,” Might Temporarily Bypass Senate Ratification for Treaty”
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p>Are you claiming ABC has it wrong?
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p>You write:
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p>Is this true? I honestly don’t know if this is right. Can you cite a source for me?
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p>I understand that the executive branch is solely responsible for foreign policy, including the negotiation of treaties, but it cannot act on those treaties unless they are ratified by the Senate.
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p>Kyoto was negotiated and agreed to by the Clinton administration, but the Senate voted 95-0 against. Clinton could not have then implemented the terms of the treaty by executive order.
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p>Isn’t this what the White House spokesman said they’d do?
The media tend to use common verbiage even at the cost of being inexact. Thus any agreement at any level between two countries becomes a “treaty” in their vocabulary. They often use “innocent” to report a verdict of “not guilty” even though the former means the defendant really didn’t do it, the truth of which is often only known to the defendant, the alleged victim, and God, and the latter only means the state didn’t prove it’s case (which granted could be because the defendant was actually innocent).
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p>Another example is when we commenced our initial “shock and awe” campaign against Iraq. The reporters very often said that President Bush “declared war” on Iraq and I wanted to scream at the TV. The President has some leeway to commit our troops and he did have some Congressional authorization, but the he cannot “declare war”. Only Congress can do that and in this case they did not take that step. It would be really nice if the media knew what they were talking about sometimes.
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p>There are also stylistic quibbles based on the Associated Press style book. An example of this is they would refer to the Archbishop of Boston as Cardinal Sean O’Malley whereas the correct title according to the Church is Sean Cardinal O’Malley. I believe it is also the AP that favors “innocent” to “not guilty”.
Well done.
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p>Then you mean this quotation is wrong, and either that ABC misquoted the WH spokesman, or the WH spokesman misspoke, used the wrong words, it’s not really a new treaty that needs ratification, or both:
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p>Again, this is a senior WH arms control person. He’s claiming something needs ratification. Yet, if the deadline passes, the WH will use an executive order to implement the old or new terms, or both.
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p>Is this senior WH arms control spokesman mixing up his words, that it’s not a treaty requiring ratification?
Assuming the spokesman knows what he’s talking about then maybe eventually certain provisions at least will require ratification. I’m not an expert in the procedures and legalities of executive orders, but I assume that there are certain inherent powers the President has to execute agreements just as he can issue executive orders in the domestic sphere in areas not otherwise contrary to statute.
…is the Constitution, which grants the President plenary power in matters of international affairs. Executive agreements are a traditional expression of that power.
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p>Google the term and read up if you so choose. This is basic stuff and I am not inclined to do the research for you.
You’re wrong in pretending that Obama is ratifying a treaty without the Senate. He’s not ratifying anything, and the article doesn’t say that he is.
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p>If the White House didn’t think it’s a treaty requiring Senate ratification, why would the White House official say such a thing?
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p>How can you accuse me of pretending anything? I’m quoting ABC News. Why are they reporting bypassing ratification?
“ratify” is causing you this problem? Nowhere does it say that the Administration is ratifying anything. Since you keep avoiding this point, after having it pointed out to you twice, the only conclusion is that you’re doing it deliberately, because you know you’re completely wrong and don’t want to admit it.
I don’t recall that being up for ratification.
(1) Bush admin, right or wrong, claimed it did not need Congressional approval for this agreement, let alone its ratification as a treaty. Congress complained about the approval part, acceded, and was mute on it being a treaty. But if you think it was a treaty then it must have been one (see #4 below.)
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p>(2) Here it’s an existing treaty, soon to expire, and Obama is saying he’ll enforce by Executive Order, without Constitutionally-mandated Senate ratification, new terms of a new treaty.
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p>(3 optional) If Bush did anything remotely similar to this, you’d want to burn the White House down with him in it.
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p>(4 optional) Memo to KBusch: Bush is no longer president. New DSM IV entry: post traumatic Bush syndrome. Please seek help.
You were wrong. So very sorry to have burst your bubble.
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p>Judging by the size of your comment, I’d say you’re the one with the obsession — or maybe delusion about DSM IV.
is a sign of being a troll.
I am not sure this means what you think it means. The deal for a new treaty is almost done, but will take time to get done and ratified. The old treaty expires in December. In the meantime Obama will live by the existing treaty, temporarily.
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p>This keeps the inspection process going, which is a good thing. Since the Senate ratified the original treaty I don’t see where this creates a constitution issue. I think you and Tapper are mountaining a molehill.
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p>We nearly have a deal, might even have a tentative deal, by December. This simply extends a ratified treaty a little longer to allow for ratification of the new treaty. This is far less than Bush’s little deal with Iraq. That was a clear attempt to end run Congress and keep us in an illegal war for the next generation.
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p>Continuing to live with an expiring treaty is an impeachable offense? What are war crimes, torture, and lying to Congress? Schoolyard pranks? Tea parties?
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You claim, hey, it’s ok to “simply extend a ratified treaty a little longer.”
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p>But it’s worse than that, constitutionally speaking.
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p>It’s not the old treaty that’s being extended. It’s a NEW treaty that’s being put in it’s place. With NEW terms. What are those terms?
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p>Who knows, but the Constitution requires Senate ratification of NEW treaties.
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p>Unilateral executive branch enforcement of those NEW terms would be a violation of the president’s Oath of Office. Yes, I would place that into the impeachable offense category.
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p>I will be charitable and stipulate that fudging an extension of an old treaty is kosher. Set that aside.
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p>The question remains, do you agree or disagree it is an impeachable offense if this is a NEW treaty we’re talking about and Obama, by executive order, begins to enforce that NEW treaty before receiving Senate ratification?
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p>Agree or disagree?
Perhaps the confusion’s in the article. I read this:
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p>”continue some of the inspection provisions”, “provisional basis”, “while the Senate considers the treaty”. I think you, and maybe even the reporter, are reading that quote differently than I am, or the rest of us. Sounds like, “while you guys work on ratifying this, we’ll go ahead and keep doing what the old treaty called for.”
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p>I are an engineer so perhaps my syntactical skills are a bit less than some of the rest of you, but I don’t see where “continue some of the inspection provisions” is talking about implementing new parts of a new treaty. The reporter’s talking about new parts of a new treaty, not the Samore guy.
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p>Obama’s not doing anything that rises to the level of impeachment (like, say outing an undercover CIA operative would be. That’s, like, totally illegal and jeopardizes national security.).
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p>Anybody else reading this differently?
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p>(emphases mine)
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but I also have been reading snippets of new and what I would consider detrimental terms of a new agreement.
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p>For example, I read a Ralph Peters opinion piece where he claims the Russians are angling not for reductions in warhead counts but in delivery systems, like a numerical cap on B-2 bombers, cruise missiles, and subs, i.e., new terms of a new treaty, not an extension of the existing START treaty.
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p>Besides, if all that’s needed is an extension of the old START, that’s something the Senate could ratify without debate to give Obama time to negotiate a new treaty.
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p>I wish Trapper has reported with less ambiguity, but if Peters is correct, and Samore is indeed talking about a new treaty, then Obama is creating a constitutional crisis for which the Senate should an injunction.
I think the reason conservatives get so very testy about criticism of their last representative in the White House is that they don’t want anyone to point out how demonstrably unfit the party of Bush is to reoccupy it.
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p>I keep this list handy for reappearances of this issue:
but what’s your point? It’s off thread. Start a new one if you like.
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p>(One suggested revision to your list, though, if you’ll permit: #28 … I’d drop the “running up gigantic deficits” part.)
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p>Your laundry list post doesn’t contribute to the question I pose which is the president’s proposed abrogation of his constitutional duties (see thread above for details.)
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p>I contend it’s an impeachable offense.
That means that I’m “on thread”. This is not a meeting, by the way.
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p>#28 stays.
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p>Running up big deficits when we’re not in a major recession and with little to show for it is bad governance. Running up a deficit now, when interest rates cannot be lowered further is useful. You may disagree with the mainstream economics view here. That’s fine. The days of conservatives pretending everyone agrees with them recently ended.
but Obama is driving the economy into a deep ditch with TRILLIONS of old-fashion, drunken-sailor deficit spending unrelated to and ON TOP of the $787 billion in so-called stimulus. Of which 10% has been spent in, what, 4 months. (Not very stimulating. What happened to all those “shovel ready” projects? Were they imaginary? Or do we need more shovels?)
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p>And if by “mainstream” economists you mean Paul Krugman, you’re right, I disagree.
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p>I don’t know how old you are, but Obama’s economic policies are more or less a replay of Carter’s wanton spending and regulatory micro-management of the economy. By the time Reagan rolled into the White House, unemployment peaked at 12% or 13% and the prime rate was above 18%. I’ve invested accordingly this time, anticipating a similar economic result from similarly nutty liberal governance, so I’m going to make out ok.
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p>Still, my personal financial success doesn’t justify Obama’s reckless deficits which will shortly surpass Italy’s GDP/debt ratio and is closing in on Sweden’s.
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p>If you’re younger than 40, I thank you in advance for supporting me in my golden years. Free medical insurance!
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And you didn’t even mention taking no action on clean energy, energy independence or climate change.
Mines aren’t supposed to be ‘safe’ things…they’re supposed to blow people up.
(or maybe you’re being witty)
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p>This is a senior WH official stating the problem. It’s not an exact quote either, which makes me wonder about the wording of it. Certainly, within the context of this problem there may be actions that the executive can take ‘provisionally’ to cover the ‘gap’ in time. Furthermore, these things may not ‘bypass’ anything constitutionally. Like anything, the devil will be in the details.
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p>The facts so far are that the lawyers are trying to figure out what they can do. The fact that they are figuring out indicates that they are aware that there is difficulty. That is,… they aren’t just ‘plowing through’ the problem by fiat, as the title of your post suggests.
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p>The truth is, with regard to what will actually happen here, we can’t really conclude anything other than they are aware of a problem and trying to figure out how to solve it. If they employ an ‘extra-constitutional’ answer, then we’ll explore that, probably with criticism. Until then, the only basis for any alarm here is what this reporter paraphrases (not quotes) from a (singular) senior WH official.
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p>I’ll get alarmed later, if necessary.
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p>Is it a treaty? If yes, then it needs ratification. And if that’s true, the WH spokesman just said they’ll not bother with ratification first and enforce terms of the treaty by executive order if they can’t get Senate ratification before 12/5.
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p>The White House has essentially said they will break the law.
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p>How am I wrong on this? Where’s the “provisional” language in the Constitution?
I read the whole article. The exact quote talks about “continue… provisions” and “provional basis… while the Senate“.
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p>The paraphrase says “…bypassing the Senate’s constitutional role in ratifying treaties…”.
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p>I note the very different tone in those two excerpts. The direct quotes speak to a “we’re looking into what is possible” attitude. The paraphrased WH senior official excerpt speaks to “getting around the Constitution”. The title of your post speaks to “Obama tries big power grab!”.
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p>I see a continuum here… at one end are closer to actual attributed statements and at the other are wild speculative panic. It goes from the attributed quote, the paraphrased statement to your post.
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p>Speaking directly to your statements:
“Is it a treaty?”
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p>There is a treaty. Perhaps it will expire.
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p>”If yes, then it needs ratification.”
Treaties need ratification, sure.
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p>”And if that’s true, the WH spokesman just said they’ll not bother with ratification first and enforce terms of the treaty by executive order if they can’t get Senate ratification before 12/5.”
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p>I don’t know precisely what the WH spokesman said,… he or she wasn’t quoted. This paraphrased statement is the only part that even hints at ‘extra constitutional action’ and in this aspect it’s inconsistent with the attributed quotes. For this reason I suspect the WH person didn’t or didn’t intend to put it quite the way the reporter stated.
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p>That being said, the question at hand is… if the treaty expires what can the executive do? I’m no expert, but I’d be willing to bet serious money that within the Constitution the executive isn’t powerless here… that is there are probably things that can be done absent a treaty ratification. What I got from the article is that they are figuring out what to do. Assertions of extra-constitutional conduct come from a paraphrased statement and you post. Everywhere else no such assertion is made. Everywhere there are direct quotes the possibility of ‘extra-constitutional’ action is specifically absent.
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p>”The White House has essentially said they will break the law.”
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p>Nowhere was this assertion made except in a paraphrased statement. Assertions of extra-constitutional conduct come from a paraphrased statement and you post. Everywhere else no such assertion is made. Everywhere there are direct quotes the possibility of ‘extra-constitutional’ action is specifically absent.
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p>How am I wrong on this? Where’s the “provisional” language in the Constitution?
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p>The “provisions” are in the Treaty (presumably). Many of the perscribed actions and behaviors of the signatorees might be actions and behaviors that would be perfectly legal to continue without the treaty. Such actions and behaviors would simply be actions and behaviors absent the force of law of the treaty. For example… if a treaty says “the US will stay out of the Sea of X” and then the treaty expires, there isn’t a constitutional reason to say that once the treaty expires that the US should immediately send forces to the “Sea of X”. Provisions of a former treaty could ‘continue’ through the voluntary actions of the signatories… it’s just that such actions wouldn’t have the legal force of treaty behind them.
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p>I see absolutely no need to panic here until I see actual evidence of ‘extra-constitutional’ actions beyond a paraphrased statement buried in an article where actual attributed quotes specifically avoid such assertions.
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p>Why do you keep saying “I don’t know precisely what the WH spokesman said,… he or she wasn’t quoted.”
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p>There’s his quotation. He says something needs to be ratified. If ratification is required, how are his “arrangements” not contravening the Constitution?
… quote in my previous response…. ‘provisional basis’,…’inspection provisions’. This direct quote doesn’t actually assert than anything ‘extra-constitutional’ is being considered.
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p>Now your really reaching.
Our Founders required Senate ratification not to prevent marginal continuations of expired treaty terms but to prevent the executive branch from giving away the farm, like giving Louisiana back to the French. (Not that they’d want it back.)
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p>Certainly the Senate, and the country, would want to know if Obama promised, say, to give up all nuclear ballistic submarines in his “agreement” with Medvedev.
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p>Whatever was or will be agreed to will need, by the WH’s own admission, Senate ratification before Obama could begin, in my example, ordering our missile subs out of service.
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p>But that’s exactly what the WH said it will do, unless this has been mis-reported:
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p>Operative words … “enforcing certain aspects of a new deal on an executive level…”
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p>Clearly, this is unconstitutional.
… that he can’t do until ratification. I’m sure there are things he can do, under his existing authority, before ratification. They never actually said they were intending to do anything ‘beyond’ their already existing authority except in the on paraphrased statement.
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p>The reason I suspect that the ‘bypassing the Senate’s constitutional role’ part of the paraphrased statement you quote above may have been botched (or worse) is because within it is a contradiction. Where one part asserts the bypassing of the Constitution, the other part talks about ‘certain aspects of a new deal on an executive levels and a ‘provisional basis’. If the intent is to bypass the Senate, why ‘certain aspects’? The parsimonious explaination is that they know they can’t do ‘everything’ and are looking into what the can do. This seems to contradict a notion of an ‘extra-constitutional’ power grab. The latter direct quotes seem to back up this notion.
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p>As is, it seems from this article that this administration is actually looking into what can be done under the assumption that they might not be able to do everything they want. The thing to keep an eye on is, if the Obama administration, in the course of their figuring out what they can do, merely disingenuously invents new interpretations of what executive ‘authority’ is a la Bush/Cheney/Yoo. The previous administration would probably have done it and invented the rationalisms behind it after the fact.
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p>It seems I’m starting to repeat myself now. I thought I was clear enough in previous comments. Your responses seem to merely be reassertions of your previous statements while re-quoting parts of the article that I’ve already addressed without really responding to how I’ve addressed them. To properly countermand what I’ve said here, mere restating that you think it’s a power grab is insufficient. A true countermand would indicate why my ‘addresses’ are incorrect without mere restatement.
…there is such a thing, and plenty of precedent, for executive agreements. These are not treaties and as such do not have the force of law, but are simply two gentlemen, the Russian and American Presidents, putting themselves on the record as committing to do what is within their authority to carry out whatever it is they are agreeing to you. I may be incorrect here, but I also get the impression that treaties are binding on nations despite any subsequent change of leadership, but executive agreements to the extent that they are “binding” at all, only apply to the individual signatories so long as they hold their respective offices.
The executive branch makes foreign policy, and negotiates treaties. I guess an “executive agreement” could fall into a negotiated but not-yet-ratified treaty. That’s fine and is how treaties are made.
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p>But WH spokesman confirms that whatever it is — executive agreement, an understanding, an handshake — it needs to be ratified. He is directly quoted saying so.
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p>This is a new treaty, and needs to be ratified before the executive branch can implement its terms. This is CONTRARY to the direct quote from the WH.
As I understand it, the treaty caps the number of nuclear warheads we can deploy and also permits Russian representatives to visit sites for verification purposes. Are you saying, BostonShepherd, that the President can’t make an executive decision not to increase the size of the arsenal, or to continue to allow Russian visitors access to certain military sites? That seems crazy to me.
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p>TedF
… limits to the CIC powers. For example, during appropriations the Pentagon still winds up having to buy stuff it doesn’t want because Congress said so. My mind having been on McNamara lately, I’m reminded that the navy only bought the ‘minimum’ they could of the F111 fighter/bomber (I think 4), but they still had to take them because of legislative appropriation creates legal mandates that the Navy must fulfill. This despite that (in the words of Vice Admiral Thomas Connolly) “…there isn’t enough thrust in all of Christendom to turn that plane into a fighter.” McNamara was pursuing a policy of ‘commonality’, trying to save money by sticking to weapon systems with ‘dual role’ capability (or better). In the case of the F111, the plane really didn’t do either role very well. Much much later, advanced electronics, avionics, targeting and weapon systems were added and the plane did find a decent role for itself (bombing Libya for example). Either way the Navy really had no use for it.
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p>Agree though, of course, that the executive isn’t powerless in this situation and I’m sure there are things that can be done before ratification that do not amount to ‘extra-constitutional’ actions.
It’s a cap, so anything below it would be OK by START treaty terms.
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p>But I’m talking about NEW terms of a NEW treaty, for example, limiting the number of B-2 bombers, a metric NOT covered under START.
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p>The president is free to cut the number of B-2’s unilaterally from the current 21 to 10. But in terms of obligating the US to this reduction under a renegotiated START treaty, Senate ratification is required under the constitution.
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p>Although I respect Mr. Lynne’s insistence that the statement from Obama’s spokesperson, Gary Samore, doesn’t suggest that the president is willing to obligate the US to observe NEW treaty terms, I thought his statement, as quoted by ABC, was explicit:
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p>The White House is negotiating a new START treaty. The president cannot obligate the US to the treaty without Senate ratification.
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p>Of course, it isn’t beyond our naive president to begin observe the new treaty terms without Russia being bound under an executed agreement, ratified both by the US Senate and its Russian counterpart.
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p>That’s called unilateral disarmament. The Russian track record on observing signed treaties is pretty bad, so Obama risks serious political damage if he chooses to trust Russia to implement unratified treaty terms which he unilaterally follows.
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p>What sort of foreign policy is that? The Russians get something for nothing.
Treaties can obligate action and behavior. However, not all actions and behaviors are obligatory. As such, some non-obligatory actions and behavior may be possible before the treaty ratification makes them obligatory. That’s how I read the statement.
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p>Certainly you’ll agree that non-obligatory behavior is possible and that some non-obligatory behavior is possible within the constitution before ratification, yes? If you agree to this as such, why assert that the WH intends to go beyond constitutionally allowed non-obligatory behavior? The spokesman didn’t say as much and the only indication of any such action is in the paraphrased statement. Given that this is possibly what they meant, why ascribe extra meaning beyond this to what they said?