U.S. Constitution, Article 2, Section 2, #2: “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.”
The Constitution’s two-thirds Senate rule regarding treaties is violated by Fast Track as it currently stands and has stood; and that provision of Fast Track (reducing the required two-thirds down to merely half of the Senators voting “Yea”) would need to be eliminated and the Constitution’s two-thirds-Senate requirement restored, in order for there to be able to be any further applications of Fast Track; this would not necessarily apply regarding past applications of Fast Track such as NAFTA, and prudentiality might sway against such retrospective applications; but, for TPP, TTIP, TISA, and other future applications of Fast Track, or in other words for constitutionality of future international-trade agreements, the words of the Constitution are unmistakably clear, and those words must be applied, notwithstanding the violations of the U.S. Constitution that have already been erroneously instituted. The purpose of the U.S. Supreme Court is to hold that document, the U.S. Constitution, and none other, as this nation’s inviolable Scripture, by which all future actions of the United States Government are to be evaluated, and all future laws (a treaty being in a separate and even stricter category for which reason the two-thirds Senate rule was included in Article 2, Section 2, #2) are to be judged to be either valid or invalid.
The 50-vote-Senate provision of current Fast Track is unconstitutional if it allows anything of a “treaty” nature to be passed, because the two-thirds-Senate rule for any treaty is in the Constitution and would need first to be eliminated by the Amendment process in order for it to be able to be removed – and this has not been done.
The U.S. Supreme Court is, of course, exceedingly reluctant to accept justiciability of matters that are within the discretion and expertise of the other two branches, but the two-thirds-Senate rule is a Constitutional provision that applies to all treaties; and it is violated by existing Fast Track. For the Court to deny this issue’s justiciability would be for the Court to rule that the Constitution’s treaty-clause’s two-thirds-Senate rule can be legally violated by the Senate and by the U.S. Government. If that were the case, then there might as well be no U.S. Supreme Court, because it would be a Court whose ruling majority would be violating both of the solemn oaths by which each one of them had first entered the Court.
Furthermore, for the U.S. Supreme Court to rule that violating the clear words of the Constitution is within the discretion of the other two branches to do, would be an outrage that would be recognizable as such by the general public and that would therefore bring forth valid grounds for impeachment, if not for outright revolution. It would be treason from the judicial bench.
The language of the U.S. Constitution on this matter is clear. The Court’s only discretion on the matter concerns the prudentiality of retrospective applications. Fast Track as it exists and has existed up till now is unConstitutional violation of the two-thirds-Senate rule for approving of anything that is in the nature of a “treaty.”
There is no discretion in this matter for any U.S. Supreme Court member who adheres to his oaths of office, and to the U.S. Constitution.
Fast Track as it now exists must be struck down.
NOTE #1: This is in response to a reader at reddit, who said, after having read only this article’s title (and taking issue with the article on that basis): “No, it doesn’t. Trade agreements aren’t treaties. This article is just fundamentally wrong.”:
Until 1979, every trade agreement that the U.S. had with any nation or nations was a treaty not only in reality but in name – recognized as such. However, in 1979, the U.S. signed the first international trade agreement that the U.S. refused to call a “treaty,” the Tokyo Round GATT. That sort of thing has happened only four more times, the biggest being NAFTA. And yet even after 1979, the vast majority of international trade agreements to which the U.S. was a signatory were called, even by the U.S., as “treaties.” So: you are wrong. Almost every international trade agreement that the U.S. has signed was called as a “treaty” by the U.S. Government.
The few (5) exceptions, all since 1979, were the few deals that were so bad they’d not have been able to pass constitutionally unless the U.S. Government declined to call them a “treaty.” But calling, for example, a robot a “person” does not make it so.
PS: For the U.S. Supreme Court to allow the President and the Senate’s Majority Leader to determine that certain international trade agreements are not “treaties” that are referred to by the U.S. Constitution’s Treaty Clause would be for the Supreme Court to cede to the Executive and Legislative branches the core power and authority of the Judicial branch, which is to interpret the Constitution. It would thus set a disastrous precedent that would end Constitutional rule in America.
NOTE #2: Another reader, at a different reddit page, offered a comment that’s entirely correct, and that is sufficiently insightful and well-put to be worth passing along here:
The legal justification used to explain why TPP doesn’t need 2/3 of the Senate is that it’s a trade agreement, not a treaty. I think this is total nonsense. Relatively little of the TPP actually has to do with trade, and all the most heinous parts of it (ISDS, criminalizing non-commercial copyright violations, etc) are things that would ordinarily be part of a treaty, not a trade agreement. It’s fairly obvious that the Obama Administration is wrapping the really objectionable stuff up with the parts that actually pertain to trade and calling the result a ‘trade agreement’ to get around the 2/3 requirement for a treaty.
Unfortunately, the judiciary’s current position is that the legislative and executive branches are the ones that determine whether something is a treaty or trade agreement. However, the judiciary has expanded the scope of its oversight on these sorts of issues in the past, so if TPP turns out to be disastrous enough, the courts may be convinced to rule it unconstitutional.
NOTE #3: Another reddit page has a reader citing this against my argument:
In the United States, the term “treaty” is used in a more restricted legal sense than in international law. U.S. law distinguishes what it calls treaties from congressional-executive agreements and sole-executive agreements. All three classes are considered treaties under international law; they are distinct only from the perspective of internal United States law.
The wikipedia entry on “Treaty Clause” starts with that, and then it proceeds to note that throughout American history, “states may make with the consent of Congress” things that are called “agreements,” since those agreements don’t involve foreign nations. What’s not said there is that only after the Fast-Track-initiating “Trade Act of 1974” were “agreements” passed with foreign nations that weren’t called “treaties.” They aren’t called “treaties” in the U.S. though they are called “treaties” by all of the other nations that sign. Now, why would that be? Might it be because the Treaty Clause of the U.S. Constitution prohibits any such “treaty,” since they have failed to meet the two-thirds requirement? In other words: “congressional-executive agreements” that are with foreign nations and that all of the other nations call “treaties” are instead called by the Majority Leader of the U.S. Senate and by the U.S. President by a different name, are actually treaties that were passed in violation of the U.S. Constitution, and this is why these high federal officials lie: they want to hide their violation of the U.S. Constitution. All such fraudsters should be prosecuted. They violate their oaths of office. And any Senator who participates in it should be prosecuted, for the same reason. But, first, the U.S. Supreme Court must do its duty, which is to declare this fraud a fraud. After all: if fraud against the Constitution is not the Supreme Court’s business, then nothing is nor can be, because fraud against the Constitution is fraud against the core of the U.S. Government. Permitting that would be acquiescing in the termination of American democracy.
Investigative historian Eric Zuesse is the author, most recently, of They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of CHRIST’S VENTRILOQUISTS: The Event that Created Christianity, and of Feudalism, Fascism, Libertarianism and Economics.