A 90 Day Study of a Constitutional Crisis – How Executive Overreach is Impeding Your Liberties and Undermining States’ Sovereignty: A Study on the Critical Erosion of Constitutional Checks and Balances April 6, 2015 – August 10, 2015 Featuring essays by Constituting America’s Guest Constitutional Scholars 2 Constitutional Crisis – How Executive Overreach is Impeding Your Liberties and Undermining States’ Sovereignty: A Study on the Critical Erosion of Constitutional Checks and Balances Constitutional Scholar Essayists Steven H. Aden, Senior Counsel, Alliance Defending Freedom Kristina Arriaga, Executive Director of the Becket Fund for Religious Liberty Daren Bakst, Research Fellow in Agricultural Policy, The Heritage Foundation; Attorney Logan Beirne, ISP Fellow and Lecturer in Law at Yale Law School and author of Blood of Tyrants: George Washington & the Forging of the Presidency James D. Best, Author of Tempest at Dawn, a novel about the 1787 Constitutional Convention; Principled Action, Lessons from the Origins of the American Republic The Honorable John Boehner, 53rd Speaker of the U.S. House of Representatives The Honorable Ted Cruz, U.S. Senator from Texas serving on Senate Judiciary Committee’s Subcommittee on the Constitution; Former Solicitor General of Texas, and a former Adjunct Professor of Law, teaching U.S. Supreme Court Litigation at the University of Texas School of Law; served as an Associate Deputy Attorney General at the U.S. Department of Justice, and as a law clerk to Chief Justice William Rehnquist on the U.S. Supreme Court Cynthia Noland Dunbar, Vice President of Curriculum & Instruction at Global Educational Ventures, former Assistant Prof. of Law and Advisor to the Provost at Liberty University David Eastman, Former Captain, US Army; Co-founder, Tax Our Kids Catherine Engelbrecht, Founder, True the Vote Elliot Engstrom, Attorney with the Civitas Institute Center for Law and Freedom 3 Scot Faulkner, Served as Chief Administrative Officer of the U.S. House of Representatives and as a Member of the Reagan White House Staff; President, Friends of Harpers Ferry National Historical Park The Honorable Morgan Griffith, Congressman from Virginia; member of the House Energy and Commerce Committee, serving on its Subcommittee on Energy and Power, Subcommittee on Health, and Subcommittee on Oversight and Investigations Colin Hanna, President of Let Freedom Ring Phil Kerpen, Head of American Commitment, nationally syndicated columnist, chairman of the Internet Freedom Coalition, and author of Democracy Denied Troy Kickler, Founding Director, North Carolina History Project and editor of www.NorthCarolinaHistory.org Joerg Knipprath, Professor of Law at Southwestern Law School George Landrith, President of Frontiers of Freedom Andrew Langer, President, Institute for Liberty; host of the LangerCast at RELMNetwork.com The Honorable Mike Lee, U.S. Senator from Utah; Judiciary Committee member; Chairman of the Antitrust, Competition Policy and Consumer Rights Subcommittee; Chairman of the Water and Power Subcommittee of the Energy and Natural Resources Committee; serves on the Armed Services Committee and the Joint Economic Committee; author of Our Lost Constitution James Legee, Program Director at the Freedoms Foundation at Valley Forge and Adjunct Professor at Albright College Hadley Heath Manning, Director of Health Policy, Independent Women’s Forum Brion McClanahan, Author of The Founding Fathers Guide to the Constitution 4 Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College Amy Rofail, Professor of English and the Humanities, American Public University Peter Roff, Constituting America advisory board member, U.S. News and World Report contributing editor, and One America News Network commentator Nancy Salvato Author of Keeping a Republic: An Argument for Sovereignty Byron Schlomach, Director of State Policy at the 1889 Institute and Scholar in Residence at Oklahoma State University’s Free Enterprise Institute Paul Schwennesen, Southern Arizona rancher and Director of the Agrarian Freedom Project Kyle Scott, Professor of Constitutional Law, University of Houston Jay Sekulow, Chief Counsel, American Center for Law and Justice; author of Undemocratic: How Unelected, Unaccountable Bureaucrats Are Stealing Your Liberty and Freedom; Radio Host, “Jay Sekulow Live” Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies Kevin Theriot, Senior Counsel, Alliance Defending Freedom Grace-Marie Turner, President, Galen Institute Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America 5 Is The Pending Deal With Iran Over Its Nuclear Program A Treaty – Or Not? – Guest Essayist: Colin Hanna Is the pending deal with Iran over its nuclear program a treaty – or not? What powers does the Constitution give the President, and what powers does it give the Senate? There are three places in the Constitution that address treaties with other nations. The first is the most relevant to this discussion. It is easy to recall where it is: just remember the numbers 2-2-2: It is Article II, Section 2, Clause 2. [The President] “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…” That clearly makes a treaty conditional upon the concurrence, or affirmative vote, of two thirds of the Senators voting. Both the President and the Secretary of State are former Senators, presumably well-acquainted with that stipulation. So on what basis can they claim that Senate approval of this proposed deal is not required? Before answering that central question, let’s examine the other two places in the Constitution mentioning treaties. The second instance is in Article III, the article that deals with the judicial powers of the Supreme Court. The portion of that Article that references treaties reads: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority …” This does not define a treaty, but it clearly establishes the Supreme Court’s power over treaties. This could prove critical if a case came before it claiming that a treaty was made that was not in accordance with the Constitution. The third instance in which the Constitution mentions treaties is in Article VII, Clause 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…” This has the effect of elevating valid treaties and laws to the same “supreme Law” status as the Constitution, meaning that individual States cannot abrogate validly made laws and treaties. It’s not really relevant to the Iran nuclear deal, because no State in the 21st century is likely to try to assert that a treaty does not apply to it, although at the time of adoption of the Constitution, that was a genuine concern. Because a treaty is almost always an agreement between two nations, it has gradually been accepted over the years since our Constitution was adopted that a treaty is subject to international law. That’s where the subject at hand becomes complicated. If our Constitution is indeed the “supreme Law of the land,” then there can be no superior authority. The Federal Judicial Center (www.fjc.gov) attempts to resolve this in a document worth reading, called Treaties as Law of the Land (www.fjc.gov/public/pdf.nsf/lookup/intl0627.pdf/$file/intl0627.pdf). A simplified reduction of its argument is that in the case of international agreements entered into by the United States, our Constitution takes precedence over international law, but only when a clear conflict occurs between the two. Thus our definition of a treaty is narrower than is the definition under international law. This gives rise to some confusion, especially if an American President signs a treaty that is then subjected to the Senate for ratification and fails to achieve it. Other nations citing the principles of international law may claim that the treaty became binding upon the President’s signature, as would be the case with the signature of most other 6 heads of state. Yet in the case of the United States, our Constitution appears to invalidate any treaty that the Senate votes down. Beginning in the 19th century, another practice began of our making international agreements that were something less than a treaty, and thus did not require Senate ratification. The lines of demarcation between what is a treaty and what is not have become so murky that the only workable distinction is that an international agreement is considered in this country to be a treaty only if it has been ratified as a product of the advice and consent of the Senate as spelled out in our Constitution, and merely an “executive agreement” by the President when it has not. If it is an “executive agreement,” however, it is in force at the pleasure of the executive, and that executive may cancel the agreement at any time – which is especially likely when a new executive, or President, takes office. This is the point that the 47 U.S. Senators made in their letter to Iran’s Supreme Leader – and it is a valid point unique to the United States. Given that neither the former Senator negotiating the treaty as our Secretary of State nor the former Senator directing those negotiations as President appears to want to submit the Iran nuclear deal to the Senate as a treaty for ratification, which would clearly give it greater force, it is logical to conclude that they fear that it would not pass. The latest twist in this tortured process is the possibility raised by Presidential spokesman Josh Earnest that the agreement may not even be put in writing. If that turns out to be the case, then not only will it not be a binding treaty on the United States, it won’t be worth the paper it isn’t written on.