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Paul Hayden

Bipartisan Crimes Against the Constitution

March 10, 2008

The liberals have come up with a clever way of ratifying dangerous treaties, which now require a two-thirds vote (67) to pass in the Senate. They will introduce them as legislation, requiring only a majority vote to pass. The model for this new approach is the North American Free Trade Agreement (NAFTA), which President Bush mistakenly refers to as a treaty.

Democrats Hillary Clinton and Barack Obama have been portrayed by our media as being opposed to it. In fact, they want to make NAFTA stronger. They want to renegotiate the pact and attach binding commitments and strong enforcement mechanisms on labor and environmental issues. In effect, the Democrats are calling for NAFTA to assume even more supranational authority over economic activity in the U.S., Canada and Mexico. This could be the next step on the road to a proposed North American Union.

Regarding NAFTA, Hillary says she wants "to fix NAFTA by making it clear that we'll have core labor and environmental standards in the agreement. We will do everything we can to make it enforceable, which it is not now." Obama says, "As president of the United States, I intend to make certain that every agreement that we sign has the labor standards, the environmental standards and the safety standards that are going to protect not just workers, but also consumers."

When President Bush criticized these comments as tantamount to threatening a U.S. withdrawal from NAFTA, he said that "It's not good policy on the merits and it's not good policy as a message to send to...people who have in good faith signed a treaty and worked with us on a treaty."

But it was not treated as a treaty in the U.S.

Clinton submitted NAFTA as an agreement, requiring only a majority of votes in both Houses of Congress for passage, and not a treaty, requiring a two-thirds vote in favor in the Senate. NAFTA passed by votes of 234-200 in the House and 61-38 in the Senate.

Clinton did it this way because he didn't have the votes to pass NAFTA as a treaty (requiring 67 votes) in the Senate. But how did he pull off such a blatantly illegal and unconstitutional move?

Although the strict text of the U.S. Constitution includes the treaty clause as the only means by which the U.S. can enter into such international agreements, there's a growing body of mostly liberal-left "legal opinion" that holds that "congressional-executive agreements" like NAFTA can serve as substitutes for treaties.

Clinton's move was seen at the time, even by some on the left, as an effort to bypass constitutional processes and the United Steelworkers challenged NAFTA's constitutionality in court. The case reached the U.S. Supreme Court in 2001, after lower courts had thrown the case out, saying it was a political matter between the President and Congress. The Bush Administration sided with Clinton and the Supreme Court declined to get involved.

The Bush Administration's support for the unconstitutional Clinton approach could easily backfire on conservatives if the Democrats take the White House and hold Congress in the fall elections. Citing NAFTA as a precedent, liberal Democrats could submit and pass treaties by a simple majority vote.

In an article in the liberal American Prospect, Thomas Geoghegan lamented that the Kyoto global warming treaty and the International Criminal Court "are among the great global projects of our day" but are not getting through the Senate because of the two-thirds majority required for passage. "So what's the way out of this bind? It's the same way out we used for NAFTA or for fast-track free-trade agreements. That is, we just pass a simple law," he said.

Geoghegan says the reason liberals can't get these measures currently passed in the Senate is because this body "over represents" states like "Wyoming, Idaho and America's backwoods." In other words, Red State Senators have too much clout under the Constitution. They are obstructing the "progressive" vision.

Geoghegan says legal justification for this new approach can be found in an article in the American Journal of International Law by Steve Charnovitz, an associate professor of international law at the George Washington University School of Law. The article complains about Senate inaction on such treaties as the feminist Convention on the Elimination of All Forms of Discrimination Against Women, the anti-parent U.N. Convention on the Rights of the Child, Convention on Biological Diversity, the U.N. Convention on the Law of the Sea, and various U.N. human rights treaties.

Since this article appeared, in October of 2004, the Bush Administration has been trying to pressure the Senate into ratifying the Law of the Sea Treaty. It now awaits full Senate action.

Charnovitz admits the approach of pushing these treaties as mere agreements would be controversial. But he finds comfort in the fact that the legal action against NAFTA was thrown out.

It would make a good issue for John McCain, except for the fact that he's for NAFTA and most of the U.N. treaty agenda.

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