Error #1: The Senate does not “Ratify” treaties
Cotton wrote:
Not true. The
Senate’s own website in a briefing for Senators on Treaties, says this about
the role of the Senate in the ratification of treaties:
The Senate does not ratify treaties—the Senate approves or rejects a resolution of ratification. If the
resolution passes, then ratification takes place when the instruments of
ratification are formally exchanged between the United States and the foreign
power(s).
As Jack Goldsmith, the Henry L. Shattuck Professor at
Harvard Law School, writes the constitutional role of the Senate in regard to
treaties is to advise and consent.
The Senate takes up a
resolution of ratification, by which the Senate formally gives its advice and
consent, empowering the president to proceed with ratification”
Goldsmith cites a report prepared for the COMMITTEE ON
FOREIGN RELATIONS
UNITED STATES SENATE by the Congressional Research Service
in 2001:
“It is the President
who negotiates and ultimately ratifies treaties for the United States, but only
if the Senate in the intervening period gives its advice and consent.” Ratification is the formal act of the
nation’s consent to be bound by the treaty on the international plane. Senate consent is a necessary but not
sufficient condition of treaty ratification for the United States. As the CRS Report notes: “Whe n a treaty to
which the Senate has advised and consented … is returned to the President,” he
may “simply dec ide not to ratify the treaty.”
A treaty isn’t “ratified” by the Senate. It is “ratified” by the President with the
advice and consent of the Senate.
Error #2: Even non-binding executive Agreements can’t
really be revoked “with the stroke of a pen” by future presidents nor can
Congresses easily “modify the terms of the agreement at any time.” as Cotton
suggests.
Cotton wrote:
In Cotton’s world, any “executive agreement” negotiated by
Obama would not be worth the paper it was printed on since it could be easily
undone by a future president or Congress.
Not true. While a future President
theoretically could unilaterally terminate an executive agreement and Congress
could theoretically modify the terms of an executive agreement, the process
would not be nearly so easy or free of significant consequences for the country
as Cotton implies. Politifact
addresses this in a recent fact check:
First, says Politifact, The
possible agreement with Iran is being negotiated between the five permanent
United Nations Security Council members plus one: the United States, the United
Kingdom, France, Russia and China, plus Germany. So for the agreement to be
truly modified, the other signatories would have to sign off. No future President or Congress can
dictate what these other countries might do.
The agreement would remain in force regardless of what a future
president or Congress did.
Second, any effort by a future President or Congress to
modify or cancel an agreement could result in a violation of international law
which treats such agreements as legal commitments between nations that cannot
be easily undone. The U.S. would, in the
eyes of many, become a rogue nation, not to be trusted.
Finally, the U.S. depends upon executive agreements in
managing its relations with other governments.
Any president who vacated an executive agreement made by a former
president would risk creating significant problems in international relations
for his own presidency. Politifact
quotes Jeffrey S. Peake, a Clemson University political scientist on this
point.
"For the
president to vacate an executive agreement would be quite problematic,"
Peake said. It "would be largely unprecedented and cause the U.S. a great
deal of grief in diplomacy, especially since 9 5 percent of international
agreements are done via executive agreement rather than the constitutional
treaty process." Indeed, Peake said, "It could call into question
America’s commitment to the vast majority of her international
agreements."
Bottom Line: Senator Cotton and the 46 other Republicans
need to learn a lot more about the U.S. Constitution, the role of the Senate,
and international law before they go about instructing the leaders of other
countries about executive agreements, our Constitution, the role of the U.S.
Senate, and, I suspect, just about anything else. If these guys were bulbs on a Chistmas tree,
they wouldn’t be very bright.
Read more about executive agreements and treaties at these
links:
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