Today's post is in four parts, following this introductory section:
An opening statement
Excerpts from Article II of the U.S. Constitution
A Huffington Post article entitled, "Obama's U.N. End Run Around Congress on Iran"
UN Charter's Chapter VII excerpt
Opening Statement
Today's essay deals with blowback from the letter signed by 47 GOP senators. That letter began with these words: An Open Letter to the Leaders of the Islamic Republic of Iran. The blowback involves the alleged power of the imperial president to enter into agreements with foreign powers by calling them "executive agreements." That concept isn't mentioned in the US Constitution - only his power to make treaties is listed. And that can only be done with the "advice and consent" of the Senate. Which makes me wonder: Why didn't the Senate insist that two senators - one from each party - be allowed to attend the nuclear negotiations? Their role wouldn't have been as negotiators but as agents who would silently observe the proceedings and periodically report to the Senate in order to generate constitutionally required "advice" for the President.
If we had a Senate with independents as members, the Senate would have been more protective of its powers. Instead, the power of the political parties tended to virtually grant the president (also a member of a political party) ever-expanding powers. Of course, the concept of political party is nowhere mentioned in the Constitution.
Excerpts from Article II of the U.S. Constitution
I'm going to quote Article II of the Constitution, but only the parts that list the powers of the president. The essence of those parts are highlighted in yellow, whereas my comments are highlighted in blue. As you'll see, the President was never intended to have as much power as he's managed to acquire over the centuries.
QUOTE:
Section 1.
The executive power shall be vested in a President of the United States of America.
[NOTE: It says "executive power," not "autocratic power." The President shall have "executive power" to "execute the will of the Congress." Articles I, II,and III are in the order listed for a reason - with Congress (Article I) intended to be the superior branch of the three as evidenced by its power of impeachment over the other two branches, whereas Congress is immune from attacks (such as dissolution).]
Section 2.
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;
[NOTE: Army and Navy? What about the Air Force? Why wasn't a constitutional amendment passed to account for the Air Force? Yet another instance of the Constitution being ignored.]
he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices,
and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
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;
[NOTE: There is no mention of any presidential power to enter into "executive agreements" - thereby bypassing the Senate - with foreign powers.]
and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
I'm going to quote Article II of the Constitution, but only the parts that list the powers of the president. The essence of those parts are highlighted in yellow, whereas my comments are highlighted in blue. As you'll see, the President was never intended to have as much power as he's managed to acquire over the centuries.
QUOTE:
Section 1.
The executive power shall be vested in a President of the United States of America.
[NOTE: It says "executive power," not "autocratic power." The President shall have "executive power" to "execute the will of the Congress." Articles I, II,and III are in the order listed for a reason - with Congress (Article I) intended to be the superior branch of the three as evidenced by its power of impeachment over the other two branches, whereas Congress is immune from attacks (such as dissolution).]
Section 2.
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;
[NOTE: Army and Navy? What about the Air Force? Why wasn't a constitutional amendment passed to account for the Air Force? Yet another instance of the Constitution being ignored.]
he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices,
and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
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;
[NOTE: There is no mention of any presidential power to enter into "executive agreements" - thereby bypassing the Senate - with foreign powers.]
and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
Section 3.
He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient;
he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper;
he shall receive ambassadors and other public ministers;
he shall take care that the laws be faithfully executed,
[NOTE: That is, he shall execute the will of Congress (by means of his executive power) the laws passed by Congress, even those which passed over presidential veto.
and shall commission all the officers of the United States.
:UNQUOTE.
A Huffington Post article entitled,
He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient;
he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper;
he shall receive ambassadors and other public ministers;
he shall take care that the laws be faithfully executed,
[NOTE: That is, he shall execute the will of Congress (by means of his executive power) the laws passed by Congress, even those which passed over presidential veto.
and shall commission all the officers of the United States.
:UNQUOTE.
A Huffington Post article entitled,
"Obama's U.N. End Run Around Congress on Iran"
Text I highlight below in yellow, I will comment on in blue:
Link:
http://www.huffingtonpost.com/jeffrey-laurenti/obamas-un-end-run-around_b_6869108.html?ncid=txtlnkusaolp00000592
Source: Huffington Post
TITLE: "Obama's U.N. End Run Around Congress on Iran"
by Jeffrey Laurenti, Int'l Affairs analyst and commentator
posted 3-14-2015
The 47 Senate Republicans who warned Iranians against any nuclear agreement with Barack Obama that a Republican successor could revoke "with the stroke of a pen" billed their audacious letter to the clerical regime in Tehran as a civics lesson in the American constitutional system.
It has become instead an embarrassing testament to senators' ignorance not only of American constitutional practice but of the enforcement powers vested in the United Nations Security Council and vetted by the Senate when it approved ratification of the U.N. Charter seventy years ago. [NOTE: That doesn't mean the Senate surrendered its Constitutional power to give "advice and consent" and to ratify treaties. Only a Constitutional amendment could allow that.]
GOP signers anticipated an outcry from the Obama administration; the president wryly remarked on the irony of "some members of Congress wanting to make common cause with hardliners in Iran." [NOTE: It wasn't "some members," it was a substantial block (47) of the body that is empowered to "advise and consent" and to ratify treaties. These 47 were merely informing the Iranians how our system works, so they wouldn't be surprised if the next president should dismiss any agreement "with the stroke of a pen." Should that happen, the Iranians would come to even more profoundly distrust us.] Some were a bit surprised by a broader public reaction--gauged less by the editorial pages of leading newspapers than by the fervor with which the blogosphere picked up the charge of "Traitors" [NOTE: Let's get one thing straight - there's no way 47 senators will be brought up on charges of treason.] leveled by the New York Daily News, of all newspapers.
Given Ayatollah Ali Khamenei's dark suspicions about "Zionist" control of the U.S. Congress, the letter's originator, Arkansas freshman Thomas Cotton, and his supporters could reasonably have supposed that their vow to undermine an executive agreement could flip the crusty cleric against the putative pact. [NOTE: There is no such power of the president listed in the Constitution that mentions "executive agreements" - only the treaty making power is mentioned which the President shares with the Senate. He can't make treaties on his own.]
Khamenei is not known for a subtle mastery of international public relations, but the supreme leader's public reply Thursday had surprising resonance globally, particularly among America's European allies. The Republican senators' letter, he said, was "a sign of a decline in political ethics and the destruction of the American establishment from within." Far from turning against the nuclear talks, Khamenei reaffirmed support for his negotiators.
[NOTE: Wouldn't it be funny if Khamenei refused to sign off on any negotiated agreement until, upon his insistence, the US Senate voted by two-thirds to ratify this treaty?]
But it was Iranian foreign minister Javad Zarif who administered the coup de grâce to the pretensions of Cotton's constitutional tutelage. If an agreement is reached between Iran and the Security Council's five permanent members plus Germany, he said, it will be embodied in a Security Council resolution--enforceable under Chapter VII of the U.N. Charter. [NOTE: But an "agreement" is not the same as a treaty, so any such agreement wouldn't be worth the paper it was written on.]
Cotton seems never to have learned about the Charter while at Harvard Law School, and Zarif's reference apparently sailed over his and most other signers' heads. But Senate foreign relations committee chairman Robert Corker--who had pointedly refused to sign the Cotton letter--quickly realized that a Security Council resolution would render the Republican roadblock in Congress redundant. [NOTE: But this "resolution" could not come to pass without the Senate ratifying the treaty it would be based upon.] In a letter of Obama, he implored the president to indicate "whether you are considering going to the United Nations Security Council without coming to Congress first." [NOTE: Why did Corker merely ask this of Obama instead of insisting, "You've got to obtain the Senate's approval of this treaty before you go to the Security Council."
The answer is obvious, and Corker knows it. No member of the Security Council seeks its legislature's approval ahead of a vote in that body. [NOTE: No member of the Security Council is bound by our Constitution.] The elder president George Bush went to the Security Council for a resolution approving military action to expel Iraqi occupiers from Kuwait months before he asked Congress for a war powers authorization to use American forces. [NOTE: If Congress would have said "No," it wouldn't have mattered if Bush had obtained a Security Council resolution of approval. Only Congress has the power to declare war.]
When the Senate debated ratification of the U.N. Charter in July 1945, the most troubling issue for many conservative senators was the legally enforceable character of actions the Security Council might take under Chapter VII. Would it allow a president to circumvent the Congress--and order U.S. forces into war without congressional authorization? [NOTE: No, it wouldn't - unless a Constitutional amendment had been passed to allow such circumvention, ignoring the sole power of Congress to declare war.]
Seventy years later, the issue of the interplay between the Security Council and the Congress has returned, but with an ironic twist. The Security Council, it turns out, is much more of a brake on impulses to go to war than is the Congress. (Exhibit A: Iraq 2003.)
In the current case, the council's permanent members would be adopting a resolution to neuter Iran's nuclear program in order to avoid a war, while the demand of congressional opponents and embattled Israeli prime minister Binyamin Netanyahu for ending Iranian nuclear enrichment admits of one option only--war.
[NOTE: All Iran has to do is to invoke Article X of the Nuclear Non-Proliferation Treaty, as had North Korea. Article X allows any state to withdraw from the NPT and legally build a nuclear arsenal if it feels (not needing the OK of the UN) that its national security is threatened. With all this talk of war, Iran would be totally justified in feeling threatened.]
There is, to be sure, another irony. Speaking to the U.N. General Assembly in 1987, Khamenei himself, then president of Iran, derided the United Nations as a "paper factory" churning out "worthless resolutions." At the time, Iranians were incensed that the Security Council, in a shocking display of moral relativism, was calling evenhandedly for a ceasefire in the seven-year Iran-Iraq war rather than acting against the brazen aggressor in Baghdad who had launched it. But when the council finally imposed sanctions to compel an end to the fighting, supreme leader Ruhollah Khomeini was forced to "drink the bitter cup" of peace without justice.
U.N. sanctions have clearly brought home to Tehran the costs of its pursuit of nuclear threshold capabilities. [NOTE: Once Iran invokes Article X, those sanctions would become illegal.] If the "P5 plus 1" do conclude an accord with Iran, [NOTE: Which it can't, since any such "accord" would be a "treaty," Constituionally speaking, needing to pass muster with the Senate.] the Security Council resolution that lays out the timetable for implementing agreed controls over Iran's nuclear program will presumably prescribe as well the phase-out of the international sanctions regime. The Europeans, who have been the linchpins of the sanctions, will be as glad as the Chinese, Japanese, and Russians to end them.
At that point, hawkish congressional conservatives in Washington will be very much on their own. They can look to the success of their comprehensive, solitary, 53-year embargo against Cuba for their model. [NOTE: That embargo is a violation of international law.]
UN Charter's Chapter VII excerpt
I'll only quote the title and opening section, followed by my comment.
QUOTE:
TITLE: Chapter VII: Action with respect to threats to the peace, breaches of the peace, and acts of aggression.
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
:UNQUOTE.
Only Congress has the power to declare war and thus enable the US to legally vote for war under Chapter VII's provisions.
Text I highlight below in yellow, I will comment on in blue:
Link:
http://www.huffingtonpost.com/jeffrey-laurenti/obamas-un-end-run-around_b_6869108.html?ncid=txtlnkusaolp00000592
Source: Huffington Post
TITLE: "Obama's U.N. End Run Around Congress on Iran"
by Jeffrey Laurenti, Int'l Affairs analyst and commentator
posted 3-14-2015
The 47 Senate Republicans who warned Iranians against any nuclear agreement with Barack Obama that a Republican successor could revoke "with the stroke of a pen" billed their audacious letter to the clerical regime in Tehran as a civics lesson in the American constitutional system.
It has become instead an embarrassing testament to senators' ignorance not only of American constitutional practice but of the enforcement powers vested in the United Nations Security Council and vetted by the Senate when it approved ratification of the U.N. Charter seventy years ago. [NOTE: That doesn't mean the Senate surrendered its Constitutional power to give "advice and consent" and to ratify treaties. Only a Constitutional amendment could allow that.]
GOP signers anticipated an outcry from the Obama administration; the president wryly remarked on the irony of "some members of Congress wanting to make common cause with hardliners in Iran." [NOTE: It wasn't "some members," it was a substantial block (47) of the body that is empowered to "advise and consent" and to ratify treaties. These 47 were merely informing the Iranians how our system works, so they wouldn't be surprised if the next president should dismiss any agreement "with the stroke of a pen." Should that happen, the Iranians would come to even more profoundly distrust us.] Some were a bit surprised by a broader public reaction--gauged less by the editorial pages of leading newspapers than by the fervor with which the blogosphere picked up the charge of "Traitors" [NOTE: Let's get one thing straight - there's no way 47 senators will be brought up on charges of treason.] leveled by the New York Daily News, of all newspapers.
Given Ayatollah Ali Khamenei's dark suspicions about "Zionist" control of the U.S. Congress, the letter's originator, Arkansas freshman Thomas Cotton, and his supporters could reasonably have supposed that their vow to undermine an executive agreement could flip the crusty cleric against the putative pact. [NOTE: There is no such power of the president listed in the Constitution that mentions "executive agreements" - only the treaty making power is mentioned which the President shares with the Senate. He can't make treaties on his own.]
Khamenei is not known for a subtle mastery of international public relations, but the supreme leader's public reply Thursday had surprising resonance globally, particularly among America's European allies. The Republican senators' letter, he said, was "a sign of a decline in political ethics and the destruction of the American establishment from within." Far from turning against the nuclear talks, Khamenei reaffirmed support for his negotiators.
[NOTE: Wouldn't it be funny if Khamenei refused to sign off on any negotiated agreement until, upon his insistence, the US Senate voted by two-thirds to ratify this treaty?]
But it was Iranian foreign minister Javad Zarif who administered the coup de grâce to the pretensions of Cotton's constitutional tutelage. If an agreement is reached between Iran and the Security Council's five permanent members plus Germany, he said, it will be embodied in a Security Council resolution--enforceable under Chapter VII of the U.N. Charter. [NOTE: But an "agreement" is not the same as a treaty, so any such agreement wouldn't be worth the paper it was written on.]
Cotton seems never to have learned about the Charter while at Harvard Law School, and Zarif's reference apparently sailed over his and most other signers' heads. But Senate foreign relations committee chairman Robert Corker--who had pointedly refused to sign the Cotton letter--quickly realized that a Security Council resolution would render the Republican roadblock in Congress redundant. [NOTE: But this "resolution" could not come to pass without the Senate ratifying the treaty it would be based upon.] In a letter of Obama, he implored the president to indicate "whether you are considering going to the United Nations Security Council without coming to Congress first." [NOTE: Why did Corker merely ask this of Obama instead of insisting, "You've got to obtain the Senate's approval of this treaty before you go to the Security Council."
The answer is obvious, and Corker knows it. No member of the Security Council seeks its legislature's approval ahead of a vote in that body. [NOTE: No member of the Security Council is bound by our Constitution.] The elder president George Bush went to the Security Council for a resolution approving military action to expel Iraqi occupiers from Kuwait months before he asked Congress for a war powers authorization to use American forces. [NOTE: If Congress would have said "No," it wouldn't have mattered if Bush had obtained a Security Council resolution of approval. Only Congress has the power to declare war.]
When the Senate debated ratification of the U.N. Charter in July 1945, the most troubling issue for many conservative senators was the legally enforceable character of actions the Security Council might take under Chapter VII. Would it allow a president to circumvent the Congress--and order U.S. forces into war without congressional authorization? [NOTE: No, it wouldn't - unless a Constitutional amendment had been passed to allow such circumvention, ignoring the sole power of Congress to declare war.]
Seventy years later, the issue of the interplay between the Security Council and the Congress has returned, but with an ironic twist. The Security Council, it turns out, is much more of a brake on impulses to go to war than is the Congress. (Exhibit A: Iraq 2003.)
In the current case, the council's permanent members would be adopting a resolution to neuter Iran's nuclear program in order to avoid a war, while the demand of congressional opponents and embattled Israeli prime minister Binyamin Netanyahu for ending Iranian nuclear enrichment admits of one option only--war.
[NOTE: All Iran has to do is to invoke Article X of the Nuclear Non-Proliferation Treaty, as had North Korea. Article X allows any state to withdraw from the NPT and legally build a nuclear arsenal if it feels (not needing the OK of the UN) that its national security is threatened. With all this talk of war, Iran would be totally justified in feeling threatened.]
There is, to be sure, another irony. Speaking to the U.N. General Assembly in 1987, Khamenei himself, then president of Iran, derided the United Nations as a "paper factory" churning out "worthless resolutions." At the time, Iranians were incensed that the Security Council, in a shocking display of moral relativism, was calling evenhandedly for a ceasefire in the seven-year Iran-Iraq war rather than acting against the brazen aggressor in Baghdad who had launched it. But when the council finally imposed sanctions to compel an end to the fighting, supreme leader Ruhollah Khomeini was forced to "drink the bitter cup" of peace without justice.
U.N. sanctions have clearly brought home to Tehran the costs of its pursuit of nuclear threshold capabilities. [NOTE: Once Iran invokes Article X, those sanctions would become illegal.] If the "P5 plus 1" do conclude an accord with Iran, [NOTE: Which it can't, since any such "accord" would be a "treaty," Constituionally speaking, needing to pass muster with the Senate.] the Security Council resolution that lays out the timetable for implementing agreed controls over Iran's nuclear program will presumably prescribe as well the phase-out of the international sanctions regime. The Europeans, who have been the linchpins of the sanctions, will be as glad as the Chinese, Japanese, and Russians to end them.
At that point, hawkish congressional conservatives in Washington will be very much on their own. They can look to the success of their comprehensive, solitary, 53-year embargo against Cuba for their model. [NOTE: That embargo is a violation of international law.]
UN Charter's Chapter VII excerpt
I'll only quote the title and opening section, followed by my comment.
QUOTE:
TITLE: Chapter VII: Action with respect to threats to the peace, breaches of the peace, and acts of aggression.
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
:UNQUOTE.
Only Congress has the power to declare war and thus enable the US to legally vote for war under Chapter VII's provisions.
* * * * * * * * * * * * * * *
Steven Searle, just another member of
the Virtual Samgha of the Lotus and
former candidate for US President (in 2008 & 2012)
Contact me at bpa_cinc@yahoo.com
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