We are told that Obama’s nuke deal is not a treaty but a “Sole Executive Agreement”, and therefore, it does not require a two thirds approval vote by the United States Senate to have the force of law.
Of course, this assertion raises an immediate red flag because there is no mention in our Constitution delegating a power to the president to make a “Sole Executive Agreement” with foreign governments. As a matter of fact the limited power granted to the President in our Constitution regarding deals with foreign governments is stated as follows:
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…”
So, what is meant by the word “treaty” as the word was used and understood by our founders, and requires a two thirds approval vote by our Senate to have the force of law? In Federalist No. 64 Jay defines a treaty as a “bargain” . He writes:
”These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it.”
And in Federalist No. 75 Hamilton tells us with reference to a treaty, “Its objects are CONTRACTS with foreign nations, which have the force of law…” So, we begin to learn that the word treaty as found in our Constitution is synonymous with a contract or bargain.
In addition to Hamilton’s use of the word “CONTRACTS” to describe a “treaty”, he goes on to explain why the president was not granted an arbitrary power to make “CONTRACTS with foreign nations, which have the force of law” unless approved by a two thirds vote. Hamilton points out the president, if he had such power:
“might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”
So, as it turns out, our founders intentionally commanded by our Constitution, that any deals cooked up by the president with a foreign power would not have “the force of law” unless approved by a two thirds vote in the Senate.
It is also important to note how much our founders feared an omnipotent president, and this is established when they refused giving the President Line-item veto power! Benjamin Franklin, on June 4th of the Constitutional Convention reminds the delegates how they suffered under that power and why it should not be given to the president. Franklin says:
‘”The negative of the governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of salary or some donation, was always made a condition; till at last, it became the regular practice to have orders in his favor on the treasury presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. When the Indians were scalping the Western people, and notice of it arrived, the concurrence of the governor in the means of self-defense could not be got, until it was agreed that the people were to fight for the security of his property, whilst he was to have no share of the burdens of taxation.’’
After reviewing the above documentation it becomes crystal clear that Obama’s nuke deal with Iran has no force of law unless approved by a two thirds vote in the Senate. And this is another mess made by Obama which President Trump needs to clean up so as to be within the four corners of our Constitution.
JWK
The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS’N v. BLAISDELL, 290 U.S. 398 (1934)
