Asked the right question, a suspect will often incriminate himself. Asked why the Iran deal isn’t a treaty, Secretary of State John Kerry basically answered it’s because we’ve killed the Constitution.
It’s been quipped that the “Living Constitution” liberals believe in so deeply means that the real Constitution is dead. Its words as written can be twisted by judges, and the non-existent — such as rights to abortion and same-sex marriage — can be found written between its lines by the Supreme Court.
But Secretary Kerry, testifying before the House Foreign Affairs Committee on Tuesday, pumped another bullet into the legal foundation of the American system of government ratified by We the People nearly 227 years ago.
Asked by Rep. Reid Ribble, R-Wis., “Why is this not considered a treaty?” — which would mean 67 senators would have to agree before the Iran deal would take effect — former Sen. Kerry’s startling and telling reply was:
“Well, congressman, I spent quite a few years trying to get a lot of treaties through the United States Senate, and frankly it’s become physically impossible. That’s why. Because you can’t pass a treaty anymore. And it’s become impossible to, you know, schedule. It’s become impossible to pass.”
Kerry recalled how “I sat there leading the charge on the Disabilities Treaty which fell to, basically, ideology and politics.” That treaty was blocked in the Senate last year.
The treaty clause of the U.S. Constitution, Article II, Section 2, Clause 2, is very clear: 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.”
But according to Kerry, the Senate isn’t passing treaties anymore, so we can just forget that pesky little section of our underlying legal document. Let’s parse Kerry’s words:
“Frankly it’s become physically impossible.” A treaty with Mexico helping us keep illegal aliens from crossing our border wouldn’t be physically impossible to schedule and pass; tens of thousands of demonstrators would probably gather at the Capitol steps from all across the country to demand it be ratified yesterday.
But a treaty that appeases the world’s foremost terrorist regime, allowing it to keep the ability to become nuclear-armed; or a treaty that gets the United Nations involved in handicapped parking spaces at the local mall? Yes, Mr. Secretary, that kind of treaty is impossible. It has something to do with the people electing our lawmakers.
“The Disabilities Treaty fell to ideology and politics,” the secretary of state complained, obviously wary of the Iran deal falling to the same. But his problem is with the Framers of our Constitution.
Alexander Hamilton in Federalist No. 69 noted that the “prerogative of making treaties exists in the crown in its utmost plenitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction.”
Hamilton added that “there is no comparison between the intended power of the president and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature.”
But what President Obama, assisted by Secretary Kerry, is doing in the Iran deal is reverting back to the system before American independence. They want the president, in practical terms, to have the near-absolute treaty-making powers of an 18th century British sovereign.
Just don’t call it a treaty, and you can get your treaty without having to get the votes of 67 senators, as the Constitution requires. Looks like you don’t have to be a judge anymore to take a hatchet to the Constitution.
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