ADVISE….DON’T CONSENT ANDREW McCARTHY
http://www.nationalreview.com/articles/255703/advise-don-t-consent-andrew-c-mccarthy
Advise, Don’t Consent
Senators cannot renegotiate a treaty, only reject it.
President Obama is writing to the wrong people, and those wrong people are hopelessly confused about his power and their own. This is how bad agreements are born.
Senate Republicans could easily kill the wayward New START treaty, and tell the administration to go back to Moscow and cut a deal that promotes American national security. The Constitution disfavors treaties that are not patently in U.S. interests, requiring a two-thirds Senate majority for approval — seven more than the 60-vote threshold generally required to move any contentious legislation through the upper chamber.
Even in this wretched lame-duck session, without the six new Republicans who will join the caucus in two weeks, the GOP’s 42 senators ought to be more than sufficient to stop a bad treaty. Even without a Scoop Jackson Democrat to count on, how tough could it be to prevent nine Republicans from defecting — from saying “yes” to a pact that imperils U.S. missile defenses, does nothing about an aggressive Russia’s huge numerical advantage in tactical nuclear weapons, and creates a sovereignty-sapping “Bilateral Consultative Commission” that would undermine the Constitution’s treaty process by circumventing Senate approval of future restrictions (beyond those in New START) on our national-defense capabilities?
Pretty tough, it turns out.
As is too often the case, Republican senators are taking their foreign-affairs cues from John McCain and Richard Lugar, leaders of the caucus’s moderate wing — which is to say, its incoherent wing. They want to support the treaty because to do so would be bipartisan (yay!), but, dimly perceiving that the treaty is atrocious, they also want to rewrite it.
So we are now watching them play “let’s pretend.” The Senate is pretending that it has the authority to rewrite a treaty, while the president pretends that the unacceptable treaty can be fixed by writing letters to the senators who need courting rather than writing a new treaty with Russian leaders who need convincing.
As reported [1] by National Review’s Robert Costa, this lame-duck weekend featured an amendment offered by Senator McCain to undo New START’s most noxious (but by no means its only noxious) provision, the linkage of strategic-missile reduction and U.S. missile defense. Sen. Jeff Sessions went beyond that, endeavoring[2] wholesale revisions of treaty’s missile-defense terms. Taking “let’s pretend” to new heights of fantasy, Republican senator James Risch tried his hand at crafting a unilateral treaty on tactical nukes. Actually, “non-lateral” would be more accurate: Because tactical weapons are not covered at all in New START, Risch’s exercise would have no more effect on Russia than it would on his state of Idaho.
If we could just put aside that minor inconvenience known as the Constitution, there’s no question that the Republicans are right on the policy. The Russians claim that New START prevents the United States from beefing up protections against missile attacks. That means possible strikes not only by Russia but by the likes of North Korea, Iran, and — if we look into our crystal ball — a Pakistan whose government could fall into jihadist hands, or even, say, an Egypt or Saudi Arabia that goes both jihadist (due to internal revolt) and nuclear (due to Western fecklessness in responding to Iran). And that is to say nothing of nukes, including stray Russian nukes, that could fall into the anxious hands of al-Qaeda or other terror networks.
In support of its interpretation, Russia points to language in the treaty’s preamble. That’s not all: There is much circumstantial corroboration for the Putin/Medvedev position. To avoid upsetting the Russians, the Obama administration has reneged on the U.S. commitment to deploy missile-defense components in Poland and the Czech Republic. It has explicitly limited missile defense in a critical 2010 report in order to avoid disturbing the “strategic balance” with Russia and China (apparently, the administration believes our security somehow hinges on maintaining current threat levels rather than altering them in our favor). And administration officials have refused to disclose the negotiation record for New START, which would allow senators to judge for themselves what makes the Russians think the treaty means what it certainly appears to say.
It is thus eminently understandable that senators concerned about our security should want New START drastically altered. The Constitution, however, does not permit them to do it themselves. Article II’s treaty clause quite clearly empowers the president alone to make treaties. The Senate’s limited roll is to provide the president with its advice and to decide whether to consent — meaning the senators get to counsel President Obama on how to deal with the Russians, and they get to say no or yes to the deal the president has struck.
They do not get to rewrite the deal, and trying to do so is worse than an empty gesture — it is a feint. Senatorial treaty amendments, all of which Democrats have voted down so far, would be of no legal consequence even if they passed. The reason is simple: They would not be the deal to which the Russians agreed with President Obama. A treaty is an agreement between the United States and another country. It is not an agreement between the president and the Senate to ignore the language the president and another country have endorsed.
Unless the president, the only official in our government authorized to make treaties, were to go back to the table and get Russian assent to any Senate amendments (dream on), such amendments are nullities. But the public does not know that, and the commentary certainly has not been edifying in this regard. Consequently, senators who have the power to block New START from being considered, and to vote it down if it reaches final floor consideration, appear instead to be preparing an escape hatch: They will abdicate their duty to withhold consent from a bad agreement but tell constituents they did their best to improve its flaws. It’s a cynical charade. The way to improve New START’s flaws is to tell President Obama to go back to the drawing board.
Throughout the New START debate, the Heritage Foundation’s Baker Spring has provided stellar analysis on why the treaty should be rejected — with one unfortunate exception. Mr. Spring maintains[3] that “In giving its advice, the Senate can alter the text of any treaty brought before it.” That is wrong, and most surprising coming from a bastion of constitutional originalism.
The Constitution’s treaty clause plainly assigns the making of treaties — i.e., negotiating them with foreign sovereigns and writing them — to the president. Spring’s support for the proposition that the Senate’s advice power somehow authorizes it to rewrite treaties consists of a 1981 Government Printing Office manual on Senate procedure and a 2001 report by the Senate opining on its own authority — an extravagant propensity of lawmakers that the Framers aptly feared.
Yet as John Yoo explains with characteristic erudition in The Powers of War and Peace[4], the Framers gave the executive near plenary power over foreign affairs, “a point that met with rare agreement by Thomas Jefferson, Alexander Hamilton, and Chief Justice John Marshall.” Thus was the treaty clause placed in Article II, the source of presidential authority, not in Article I, which enumerates congressional powers.
Under the principle laid down by James Madison, Article II’s few legislative intrusions — such as the Senate role in treaty making — are to be narrowly construed. They are exceptions, which lawmakers have no right to extend. The power to give advice is just that: to give advice. It is not license to change a treaty. If the Senate wants a treaty changed, it must withhold its consent.
In the Washington Times, Bill Gertz reports[5] that, in an effort to quell concerns over his handiwork, President Obama wrote Senate leaders over the weekend, assuring them that the Russians are wrong. He is committed, the president promises, to robust missile defense and, in particular, to upgrades in the capacity of the U.S. and our allies to fend off potential strikes by Iran.
The guys who need to know that, and to sign off on it, are not John McCain and Richard Lugar. They are Valdimir Putin and Dmitry Medvedev. And the signing off needs to be done in a formal treaty. The Republicans’ choice is an easy one here: Block New START and tell President Obama to get back to them when he has in hand a formal treaty that is consistent with his letter. The question is: Why are Republicans turning something so easy into a nail-biter?
[1] http://www.nationalreview.com/corner/255629/mccains-start-amendment-falls-robert-costa
[5] http://www.washingtontimes.com/news/2010/dec/18/obama-reaffirms-us-deployment-long-range-missile-d/
Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.
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