Magazine | August 5, 2013, Issue

Treaty by Decree

Obama’s end-run around the Senate, and the Constitution

‘With the exception of the SALT I agreement, every significant arms control agreement during the past three decades has been transmitted to the Senate pursuant to the Treaty Clause of the Constitution,” veteran senators wrote the president. “We see no reason whatsoever to alter this practice.”

These words did not flow from the pen of Senator Ted Cruz (R., Texas) or Mike Lee (R., Utah) in a quest to block presidential power. Instead, the authors were the unlikely duo of then-senators Joe Biden (D., Del.) and Jesse Helms (R., N.C.). Biden and Helms did not see eye to eye on much, but they agreed that President George W. Bush had to submit his 2002 nuclear-arms-reduction pact with Russia as a treaty: “No constitutional alternative exists to transmittal of the concluded agreement to the Senate for its advice and consent.”

After announcing last month that he would seek deep cuts in American and Russian nuclear stockpiles, President Barack Obama should consider those words from the man who is now his vice president. Obama has not been shy about his goal of a nuclear-free world, despite the continuing quest of North Korea and Iran for nuclear weapons, Russia’s extensive modernization of both its warhead arsenal and its ballistic-missile force, and China’s ongoing expansion of its nuclear capabilities. As Obama said at Berlin’s Brandenburg Gate, “Peace with justice means pursuing the security of a world without nuclear weapons — no matter how distant that dream may be.”

The policy arguments against bilateral negotiations with Russia in a multipolar nuclear world would seem obvious, especially to a president who barely knew the Cold War. The capacity and technology build-ups by China, the appearance of India and Pakistan as nuclear powers in the late 1990s, and the continuing proliferation efforts by North Korea, Iran, and others all demonstrate that the Cold War paradigm is no longer an adequate basis for determining strategic-weapons levels or deployments. Obama’s massive cuts in America’s already tattered nuclear umbrella, with more to come, are far more compelling proof of a failed strategy than is his airy and diaphanous notion of “nuclear zero.”

In fact, the entire theory of “nuclear zero” adherents is that reductions by nuclear powers such as the United States will induce others to follow suit and will dissuade non-nuclear states from seeking that capacity in the first instance. There is, of course, absolutely no evidence that the rulers in Tehran and Pyongyang will do anything other than ramp up their own efforts in the face of American decline.

Ironically, the United States may be saved from Obama’s policies by Vladimir Putin, who has rejected any further bilateral negotiations, arguing instead that China and perhaps others must be included. No doubt having China on Russia’s border has sharpened Putin’s awareness of living in a multipolar nuclear world, complementing his real objective against the United States: further gutting our efforts, already gravely slackened under Obama, to create a limited national missile-defense capability. Putin fears that any further reductions in Russian strategic weapons, combined with even limited increases in U.S. anti-missile capabilities over time, would protect America from Russian retaliation after a U.S. first strike. Paranoid as it is, this scenario has motivated Moscow’s animus against our missile-defense efforts since Reagan first proposed the Strategic Defense Initiative.

The Constitution, however, still stands athwart Obama’s rush to a nuclear-free utopia. Article II, Section 2 declares that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,” but only if “two thirds of the Senators present concur.” President Obama’s last nuclear-reduction pact, the 2011 New START Treaty with Russia, cut the U.S. nuclear arsenal to dangerously low levels, 750 strategic delivery systems and 1,550 warheads. It passed the Senate by a vote of 71–26, but only after breaking a filibuster with 67 votes, not one to spare.

#page#Uncertain it can persuade a dozen Republicans to err again, the administration is considering a Russian deal without Senate approval. According to his spokesman, Secretary of State Kerry told senators that they “would be consulted as we moved forward into discussions with the Russian Federation, but did not indicate that the administration had decided to codify any results in a treaty.” Unnamed administration officials say Washington and Moscow could engage in reciprocal weapons cuts without a written agreement.

Senators of both parties should stop this assault on the separation of powers. As advisers to George W. Bush, we supported vigorous executive authority to protect our national security after 9/11 through measures that included withdrawal from the 1972 Anti-Ballistic Missile Treaty with Russia. When Bush proposed negotiating nuclear cuts with Russia and prompted the Biden-Helms convergence, however, he wanted the agreement to undergo the Constitution’s treaty process. Even though Bush was urged to resort to a scheme of reciprocal reductions, he wisely placed constitutional text and historical practice first.

Bush’s logic remains valid today. It is for a reason that the Constitution requires that treaties win supermajorities: to ensure that treaties represent the highest levels of political consensus and that (in the words of Federalist No. 1) we have “good government from reflection and choice” rather than bad government from “accident and force.” Article II, Section 2’s difficult ratification process checks presidents who may bargain away national sovereignty for political advantage or short-term gain. Playing with the U.S. nuclear arsenal, Obama is bargaining away sovereignty’s most fundamental attribute, the right of self-defense.

The administration, however, bears allegiance to what it considers a higher authority. President Obama and his intellectual supporters would rather replace sovereignty with “global governance”: the idea of constraining political authority at the national level and transferring it to international organizations such as the United Nations or the International Criminal Court. They take as their model the European Union, where once-great nations such as the United Kingdom, Germany, France, Italy, and Spain have steadily ceded authority over their domestic and foreign policies to unaccountable bureaucrats in Brussels. No state is superior to any other; all nations — including the United States — are equally exceptional, as President Obama notoriously claimed, and therefore not exceptional at all. All nations must submerge their national interests in an amorphous “international community.”

President Obama made clear his worldview in his first address to the U.N. General Assembly:

It is my deeply held belief that in the year 2009 — more than at any point in human history — the interests of nations and peoples are shared. . . . In an era when our destiny is shared, power is no longer a zero-sum game. No one nation can or should try to dominate another nation. No world order that elevates one nation or group of people over another will succeed. No balance of power among nations will hold.

Global governance promises a peace that has so far eluded mankind. For true believers, the prime instrument is the treaty, but one that is a wholly different kind of agreement from those that ended the First and Second World Wars. Rather than seek discrete political, military, or trade agreements between individual nations, global governance aims to replicate the administrative state at the international level. Proponents of global governance urge vast delegations of authority to regulate domestic and world affairs to unaccountable international institutions; thus, the U.N. is responsible for international peace and security; the Law of the Sea Treaty sets rules, to be administered by international bodies, for resolving disputes about the oceans; and the International Criminal Court can prosecute anyone in the world for war crimes. These institutions will constrain U.S. freedom of action by imposing international “norms” derived from consensus rather than respecting the decisions of constitutional democracy.

It is in the U.S. Constitution that Obama finds the greatest obstacle to the pursuit of his international utopia. Article II, Section 2’s requirement of a Senate supermajority puts a brake on efforts to transfer U.S. sovereignty to international organizations. Thus, as with the proposed Russian nuclear-arms deal, the administration has tried to advance global governance by an end run around the Constitution. In 2012, for example, the Obama administration declared that America would follow, though not sign, a European Union code of conduct for outer space. Drafted by nations that do not bear America’s global responsibilities, the code restricts military activities in space as well as some peaceful dual-use technologies, such as the multi-stage rockets that can launch commercial satellites.

The Obama administration has even gone so far as to attempt to override Senate opposition to global-governance treaties. In 1986, President Reagan wisely decided to block the U.N. Convention on the Law of the Sea because it creates an international authority with the right to tax private undersea mining. Even though the Obama administration’s efforts to convince the Senate to approve the agreement have proven unavailing, it has ordered the U.S. Navy to follow the treaty’s rules, in the hope that they might become binding customary international law. Despite the Senate’s clear rejection of any climate-change agreements (it rejected the Kyoto accords 99–0), the administration sought to cooperate with the Copenhagen global-warming enterprise, which considered pollution quotas and carbon taxes for developed nations. This year, the Obama administration signed the U.N. Arms Trade Treaty to impose a “national control system” on “small arms and light weapons,” even while its gun-control proposals floundered in Congress.

#page#The attempt to advance gun control through the Arms Trade Treaty might surprise average Americans, but not liberals, who have long been frustrated by the Constitution’s limits on government. Gun-control statutes, like any others, have to survive both the House and the Senate and then win presidential approval. It is far easier to advance an agenda through treaties, unwritten international law, and even “norms” delivered by the “international community.”

Opponents of capital punishment have used treaties to press the Supreme Court to stop the death penalty in Texas. Women’s-rights groups advocate an international convention that would achieve the goals of the failed Equal Rights Amendment. And supporters of bans on “hate speech” invoke international norms to defeat First Amendment objections. There also is an international legal doctrine (embodied in a treaty the Senate has never adopted) that during the period when a country has signed but not yet ratified a treaty, it must take no measures that defeat the treaty’s object and purposes. Under some liberal theories, this would allow the president to put some measures of the Arms Trade Treaty into effect by executive order. Fortunately the Constitution’s treaty power, properly understood, prevents these absurd schemes absent the support of a Senate supermajority.

Constitutional principle here makes for good politics. Scandals over executive power increasingly beset the White House. Resorting to unilateral executive initiatives to reduce nuclear stockpiles can only further undermine trust in the Obama presidency. If Obama believes that a 33 percent reduction in our deployed nuclear forces advances our best interests, the treaty process provides him an advantageous forum to persuade others of his vision.

If Obama instead insists on acting alone, Congress can respond with its own constitutional powers. As commander-in-chief, the president dictates nuclear strategy and tactics, but only the legislature’s power of the purse can set the size of the armed forces. The Framers designed Congress’s power over the military to frustrate presidential policies. In the 1990s, for example, Congress supported the research and development of national missile defense even while the Clinton administration wrongly believed that the Anti-Ballistic Missile Treaty — it prohibited national missile-defense systems — reinforced “strategic stability” between the superpowers. Congress can defeat Obama’s policy simply by funding the expansion of U.S. nuclear forces.

Unlike a mere executive promise, which the next president can undo at little cost, a constitutional treaty would signal a long-term commitment by both branches to nuclear-arms control. If the president expects his dream of a nuclear-free world to outlive his term in office, only a Senate-ratified treaty can provide the lasting legacy he wants so badly.

– Mr. Bolton is a senior fellow at the American Enterprise Institute (AEI) and a former U.S. ambassador to the United Nations. He is the author of Surrender Is Not an Option: Defending America at the United Nations and Abroad. Mr. Yoo is a law professor at the University of California, Berkeley, and an AEI visiting scholar. He is the author, most recently, of Taming Globalization: International Law, the U.S. Constitution, and the New World Order.

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