“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;”
Article II of the Constitution pertains to the executive power of the President.
The Heritage Foundation’s blog, “The Foundry” reported Tuesday that the Obama Administration had submitted a report to the United Nations Human Rights High Commissioner entitled “Report of the United States of America“.
I appreciate that “The Foundry” brought this report to readers’ attention and I hope Heritage Foundation will undertake a review of the document. The blog post focuses on President Obama’s dissatisfaction with his own country and his repudiation of decisions made in regards to handling military combatants. But there are so many things to be disturbed about in this situation, it is hard to determine where one should place their focus.
For the moment, I will focus on the fact the report was submitted in the first place. Early on, the text confirms it is the first time the US has participated in the UN Human Rights Council’s “Universal Periodic Review“. Is it because the UPR is a new program or there is a reason why the United States has not customarily submitted itself to such a review?
The program is not new; it was created in 2006.
It is quite clear that our current President does not have much respect for our Constitution. I would say he is ignornat of it, but that is simply not the case. He spent several years teaching the subject himself. And he is on the record as having clarity as to what it is all about. The fact is, he believes it is an unfortunate document.
As a sovereign nation with a Constitution that enumerates a specific list of powers to each branch of the federal government, the United States cannot subject itself to review by an outside entity. The most disturbing aspect of this report submission is the question it raises about whether or not it subjects the United States to the jurisdiction of the United Nations in any way.
As noted above in the Article II quote, President Obama does not have the Constitutional authority to enter the US into any relationship that encroaches on the Constitution. All legislative powers enumerated in the Constitution are vested in the Congress. As noted above, two-thirds of Senators must agree to any treaty the President would like to make.
The US has not traditionally subjected itself to review by any outside authority that would endanger its sovereignty, and for very good reason. The Constitution prohibits it. A 1956 Supreme Court decision, Reid v. Covert, articulates the whole subject of treaties:
“The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.
Article VI, the Supremacy Clause of the Constitution, declares:
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; . . .
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights — let alone alien to our entire constitutional history and tradition — to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined.”
Again, the primary question is, does the submission by the Obama Administration of the report to the UN Human Rights Council subject the US to an outside jurisdiction?
Those who have the time should read the full report. It is most revealing of the philosophy of our President.