Our safety and salvation lie in the Constitution and the rule of law.
That is why the President's sole oath is to "preserve, protect, and defend the Constitution of the United States."
Thus, President-elect Donald Trump must void President Barack Obama's Joint Comprehensive Plan of Action (JCPOA) aiming to restrain Iran's nuclear ambitions because it is an executive agreement that violates the Constitution's Treaty Clause.
The Constitution's authors worried that the President would betray national interests for ulterior motives in concluding secret agreements with foreign nations. The example of King Charles II was fixed in their memories. The British Monarch unilaterally negotiated the Secret Treaty of Dover with French King Louis XIV in 1670. Among other things, the treaty provided that Charles II would receive a yearly pension from Louis; that additional sums would be forthcoming when Charles jettisoned Anglicanism for Roman Catholicism; that Louis would provide up to 6,000 French soldiers in the event Charles' treason provoked an English rebellion; and, that Charles would ally with France in its war against the Dutch.
Accordingly, Article II, section 2, clause 2 of the Constitution empowers the President, "by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur."
To provide treaty advice to the President, half of the eight United States delegates to negotiate the United Nations Charter were Members of Congress: Senators Tom Connally (D-Tex.) and Arthur Vandenberg (R-Mich.), and Representatives Sol Bloom (D-N.Y.) and Charles Eaton (R-N.J.). Presidents William McKinley, Warren Harding, and Herbert Hoover similarly included Senators as U.S. delegates to negotiate treaties.
Alexander Hamilton elaborated the reasons for the Treaty Clause in Federalist 75:
An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States."
President Obama negotiated the JCPOA without congressional participation. Further, the agreement between the United States and Iran is a treaty by any plausible constitutional standard or tradition. Hamilton explained in Federalist 75 that treaty "objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign."
The JCPOA fits an agreement between sovereign and sovereign like a glove. Moreover, agreements bearing on nuclear arms have traditionally been treaties. They include the Limited Test Ban Treaty, the Nuclear Non-Proliferation Treaty, the Intermediate Nuclear Force Treaty, the Anti-Ballistic Missile Treaty, the Comprehensive Test Ban Treaty, and the Strategic Arms Reduction Treaty. Even a paltry agreement with Britain over migratory birds was a treaty, i.e., the Migratory Bird Treaty of 1916.
Secretary of State John Kerry did not dispute that the JCPOA is a treaty in testifying before the House Foreign Relations Committee. Instead, Mr. Kerry explained that the Obama administration would no longer comply with the Treaty Clause because the threshold of political consensus needed for ratification was too challenging.
Rep. Reid Ribble (R-Wisc.) inquired: "Why is this [Iran deal] not considered a treaty?"
Secretary Kerry responded:
"Well Congressman, I spent quite a few years ago 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. And I sat there leading the charge on the Disabilities Treaty which fell to, basically, ideology and politics. So I think that's the reason why."
Alexander Hamilton would have been appalled. The Treaty Clause is to prevent, not to facilitate presidential betrayals or follies.
The Constitution's framers would have impeached, convicted, and removed Mr. Kerry from office for his constitutional perfidy. But Congress has degenerated from a vertebrate to an invertebrate institution over the past several decades. Accordingly, Mr. Kerry escaped congressional rebuke. Congress meekly acquiesced in the JCPOA as an executive agreement.
But the Constitution's separation of powers is a structural bill of rights to protect the American people from tyranny. The Supreme Court has thus held that one branch may not voluntarily surrender its powers to another branch and jeopardize the liberties of the citizenry.
Last March, Mr. Trump declared that his "Number-One priority" would be "to dismantle the disastrous deal with Iran." That is not an option. It is a constitutional imperative until and unless the Senate ratifies the agreement with a two-thirds majority.
And if the JCPOA precedent is not disowned by President Trump, it will lie around like a loaded weapon ready for any successor to use to justify an international global warming pact as a constitutionally valid executive agreement that might cripple the American economy.