Treaty power; Constitutional duties, requirements, and remedy

CONSTITUTION OF THE UNITED STATES

(click on the title above for U.S. Archives)

He [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;

Constitution of the United States, Article II, Section 2.

Before he [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Constitution of the United States, Article I, Section 1.

TODAY, July 20, 2015:

U.N. SECURITY COUNCIL APPROVES IRAN NUCLEAR DEAL

What occurred?

He [the President] by and with the Advice and Consent of the UNITED NATIONS SECURITY COUNCIL, purports to complete an agreement, a Treaty;

Does the President have the power to bind the United States of America’s federal government to a treaty negotiated with the United Nations?

Review the President’s Constitutional Article II authorized grant of Power:

He [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;

President’s grant of power requires:

• agreement negotiated, BY and WITH the [the United States Senate],
• Advice and Consent of the Senate [United States Senate],
• provided, 2/3 of the Senators present vote to agree;

Has one requirement of the President’s Constitutional “Treaty Power” has been complied with?  No.  Not one.

The IRAN nuclear deal was negotiated with Advice and Consent of the United Nations Security Council, a foreign entity and other foreign governments.

• This POWER was never granted to the President
• The President never sought Advice and Consent of the U.S. Senate
• The President did not provide the “deal” to the U.S. Senate before purporting to bind the United States of America to the United Nations agreement.

What is the actual Constitutional and legal effect of the current Administration’s actions?   There is no legal binding affect upon the People of the United States.  There is no binding effect upon the United States Government and the People of the United States.

What should be done when a “Constitutional Scholar” purposely ignores the legal rules and duties of his office?  What should happen to one, who, being a “Constitutional scholar” cannot claim ignorance, or “I didn’t realize” I wasn’t operating legally?

There is only one legal, or Constitutional, remedy available to Congress.  Before we review the remedy, we must consider Congress and review the same questions Professor Lessig asks in his presentation “Republic still in danger?”;

“How do they act, and then what do they become?  

How do they act as members of Congress?  

As a consequence of that behavior,   what should we expect they are?”

The current administration, the executive branch, has not sought the Advice and Consent of the Senate.  The current administration sought the Advice and Consent of a foreign entity, the United Nations, and other foreign states.  The President of the United States has taken knowing actions contrary to the United States Constitution purporting to bind the United States in an agreement with foreign states.

All of Congress’ grants of Powers [authority] are contained in Article I of the U.S. Constitution, including the power of impeachment:

The House of Representatives . . .  shall have the sole Power of Impeachment.

Constitution of the United States, Article I, Section 2.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Constitution of the United State, Article I, Section 3.

Congress has Power to preserve and defend the Constitution from a President (or his subordinates) who do not abide by the oath of office;

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Congress’ Constitutional Power for dealing with office holders who do not fulfill their oath of office is impeachment and trial.  Opponents of impeachment will state the President (and his subordinates) cannot be impeached for;

• incompetence,
• failure to execute the duties of the President,
• failure of the Executive to implement the laws enacted by Congress, or
• failure to protect and defend the Constitution of the United States.

Really?  Congress does not have the power to replace a leader who purposely refuses to do his duty to protect and defend the Constitution?  If Benedict Arnold had been elected President before he committed his treasonous acts to “return” America to the British, Congress would not be able to remove him from office?  If a President, or chosen subordinates, refused to abide by generally accepted safety and protocol procedures for sensitive documents, which placed American’s lives, and the very basis of the American government in danger, Congress cannot act to secure the nation?  Can that truly be the reality?  No.

Opponents of Impeachment will state impeachment is reserved for high crimes and misdemeanors citing the language in Article II which includes the Executive branch’s powers:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Constitution of the United States, Article II, Section 4.

But wait, there’s more:  Article I contains the directions contained in our Constitution which outline Congress’ duties, powers; including the remedy of Impeachment;

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Constitution of the United States, Article I, Section 3.

Notice all of Congress’ powers are GRANTED in Article I of the Constitution. In Section 3 of Article I, Congress’ power to impeach is limited to “removal from office” and “disqualified” from holding future office.

Judgment in Cases of Impeachment can only result in removal from office and future prohibition from public office.  If the person impeached committed acts which were also criminal offenses, i.e., High Crimes and Misdemeanors, then the person impeached must be tried separately for those offenses in the appropriate court of law.  

Why is the language of “high crimes and misdemeanors” contained in Article II, Section 4 of our Constitution if it is not a limitation on the power to impeach?

The qualifier in Article II, Section 4 of the Constitution of the United States specifically uses the word, “SHALL” impeach in instances of “high crimes and misdemeanors.”

The term “shall” is;

• a mandate,
• a warning,
• an order.
• No choice is given, once aware, Congress is required to implement impeachment proceedings. (as compared to the term “may”)

If a high crime or misdemeanor is committed and the President becomes aware of the infraction, the President is duty bound to refer the actions to Congress for impeachment proceedings.  If Congress becomes aware of the same conduct, Congress has no choice as they are ordered by our Constitution to Impeach and conduct a trial in accordance with Article I directions.

Since January of 2009, there have been numerous purposeful actions, and purposeful inactions, on the part of the current administration which has given Congress reasons for impeachment.  (The executive will continue to do as it wishes until it is forcefully stopped.)

What happens if the House of Representatives impeaches the President?  Then the Senate conducts a trial and a 2/3 vote in favor of impeachment is mandated to actually remove the President, or his subordinates, from office.   Assume evidence of reasons substantiating impeachment are proven in trial, if there are not 67 Senators who will vote they agree the President, or his subordinates should be impeached, then, even though the impeachment allegations were proven,  the President or his subordinates will not be impeached.

Are there 67 righteous Senators who would listen to the evidence and render a “just and right” verdict in an impeachment proceeding?

(Note: this “discussion” comes from a “plain reading” of the words contained in the Constitution adopted in 1789.  No attempt is made to review any or all case law.)