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When the liberal Washington Post reports something like this (even though it is an op-ed opinion and not the editorial position of the Post, it was published there), it’s got to be a problem:

Critics of the new Strategic Arms Reduction Treaty (START) warn that it may endanger the United States’ capacity to go forward with missile defense. But the treaty, Senate consideration of which has been pushed back to the fall, raises another concern. Consent to it as it stands will further erode the Senate’s constitutional role in American foreign policy.

What else is new?  There’s more; Jack Goldsmith and Jeremy Rabkin (who teach at Harvard Law School and George Mason Law School respectively) have grave concern that the Senate is delegating its oversight power to an unelected commission:

This treaty does not constrain future development of missile defense (except in a few limited ways). It does, however, create a Bilateral Consultative Commission with power to approve “additional measures as may be necessary to improve the viability and effectiveness of the treaty.” The U.S. and Russian executive branches can implement these measures and thus amend U.S. treaty obligations — without returning to the U.S. Senate or the Russian Duma.

This Commission would have the power, according to Goldsmith and Rabkin, to “[R]esolve questions related to the applicability of provisions of the Treaty to a new kind of strategic offensive arm.”  (See page 141 of this copy of the START treaty linked to the Post article.)  However, there is also another clause equally disturbing: 

“Agree upon such additional measures as may be necessary to improve the viability and effectiveness of the Treaty.” 

Goldsmith and Rabkin admit that the Commission has no substantive power to change the terms of the Treaty.  However, who governs the Commission or who decides:

New START does not explain what counts as a “substantive right,” and the commission, which is given very broad power to interpret the treaty, will itself decide the issue.


One reason is that as treaty delegations of this sort have expanded, and as more authority for making international agreements is transferred to the executive branch and international organizations, the cumulative effect of these arrangements becomes increasingly hard to square with the Senate’s constitutional role in the treaty-making process and, more generally, with separation of powers.

Of course delegation of the treaty-making power to the “executive branch and international organizations” is as Cong. Paul would put it, “…not authorized by the Constitution”.  There is plenty of bad UN law (usually a redundancy) out there marketed with globalist and anti-sovereignty motives as well as treaties such as NAFTA, CAFTA and GATT with anti-sovereignty provisions.  Don’t take my word for it: 

Some courts have begun to give credence to this concern. In 2006, the federal appellate court for the District of Columbia declined to implement the “adjustments” that an international organization had made to an environmental treaty even though the political branches agreed to the adjustment process. The court noted the “significant debate over the constitutionality of assigning lawmaking functions to international bodies” and held that treating the treaty adjustments as law “would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers.”

Here’s the case:  Natural Resources Defense Council v. EPA, 440 F.3d 476 (2006):

The case is disturbing.  The court did say that delegation of legislative power to international agencies or commissions would raise constitutional questions:

A holding that the Parties’ post-ratification side agreements were “law” would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers.

Goldsmith and Rabkin suggest a solution:

One way for the Senate to do this would be to condition its consent to the treaty on an interpretive “understanding” that the commission’s amendment power extend only to technical treaty matters and not to limitations on missile defense. Understandings of this sort are common in U.S. treaties. The Senate could also condition consent to the treaty on a requirement that it be notified about deliberations of this commission.

Such provisions would preserve the commission’s core authority while constraining it in ways that eliminate the most serious constitutional objections. They would also lay down a marker about the Senate’s role in this context.

The State Department insists that “there were no secret deals made in connection with the New START Treaty; not on missile defense or any other issue.” If that is true, the administration should have no problem with minor Senate tweaks of this sort. If the administration does have a problem with them, the Senate should worry — about the commission’s power to limit missile defense, the executive’s attempt to limit the Senate’s constitutional role in the treaty process, or both.

I agree with Goldsmith and Rabkin.  Let’s what the administration does:  I herewith will send this blog entry to a Senator who cares about sovereignty:  Senator DeMint of South Carolina.  I also will send to the Southern Avenger/Jack Hunter for his use as he sees fit.  I urge Tea Party activists and Ron Paul libertarians to watch this story and contact Senator DeMint to ask him to look into this.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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