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 “overrepresents” 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.
Cliff Kincaid is the Editor of the AIM Report and can be reached at cliff.kincaid@aim.org . This item is excerpted from a column that he wrote for Accuracy in Media.
