THE TREATY AS TROJAN HORSE:

The Legality of Using Force (BRUCE ACKERMAN, September 21, 2002, NY Times)

As Congress confronts the prospect of war, it should consider some constitutional fundamentals. The Bush administration would have us believe that international law contains only ambiguous or advisory requirements. In fact, the United Nations Charter was ratified as a treaty by the Senate after World War II, and the Constitution explicitly makes all treaties "the supreme law of the land."

The president has no power to pick and choose among the laws that bind him - unless Congress tells him otherwise. This is what makes the precise terms of any Congressional authorization for war against Iraq so important. According to judicial precedents, treaties like the United Nations Charter can be trumped only by subsequent legislation. The Charter would lose its status as governing domestic law if Congress explicitly authorizes the president to make war in violation of its terms.

This is anti-Constitutional nonsense. The UN Charter has been amended several times without (to the best of my knowledge) being resubmitted to Congress, so the treaty that was approved fifty years ago can no longer be said to exist. To allow a different result would be to invite presidents to submit treaties in a form that can win approval and then renegotiate them along less popular lines they may prefer while bypassing Congress. So, for example, Fast Track Trade authority would be unnecessary because after Congress made changes to a trade agreement the President could take the approved treaty to our negotiating partner and use amendments to strip out all of the congressional provisions and return to the original version. So much for checks and balances.
Posted by Orrin Judd at September 21, 2002 8:53 AM